In 2016, the State of Michigan passed the Funeral Representative Designation Act which allows you to appoint a “funeral representative” – someone who has authority to make decisions about your final funeral arrangements and resting place upon your death. It was passed in June 2016 but most people aren’t quite aware of it so here is a brief overview.
Previously, when someone died in Michigan, decisions about funeral and burial arrangements were made, in order of priority, by the surviving spouse and the next of kin. They were presumed to have authority to make the decisions. As a result, Michigan residents were “stuck” with an order of priority that did not always necessarily work for them – it ignored today’s realities of multiple marriages and blended families, estranged children, childless marriages, sam-sex relationships and son on. The court did not need to get involved unless someone else wanted to challenge the decisions.
The new law allows you to appoint anyone over age 18 – and not just your spouse or family members – to serve as your “funeral representative”, as well as successors. This designation is made in writing, signed and dated in front of two witnesses or before a notary. It can be included in your Will, your medical power of attorney (i.e., Patient Advocate Designation and Living Will) or in a separate document. This is very helpful for those of you who do not have family members or they do not live close by. You can name a close friend or even your pastor, for example, to be your funeral representative.
The funeral representative can accept the designation either by signing an acceptance or by acting as the funeral representative. The funeral representative has authority to act only after your death.
If no funeral representative is designated, or if the funeral representative declines to act or cannot be found, then your body will be disposed of by certain persons in a set priority, starting with the surviving spouse, followed by next of kin (see below). If there is no funeralrepresentative or the funeral representative cannot be found or chooses not to exercise these rights, and no next of kin can be found or the next of kin chooses declines to serve, the authority falls to the guardian (if applicable), the personal representative, a special personal representative, or the medical examiner, in that order. Note there are special rules of priority that apply if you are a service member.
Order of Priority
There is an order of priority for someone to have the authority to make your funeral and burial decisions as follows:
- If you are a service member, the person who may be designated by federal law
- The person you designate as your funeral representative
- Your surviving spouse
- Your adult children
- Your adult grandchildren
- Your parents
- Your grandparents
- Your siblings
If a person with the highest priority cannot be found, elects not to serve as the funeral representative, or fails to perform any duties within 48 hours of your death, the person(s) with the next highest priority has the right to act.
How Do You Appoint a Funeral Representative?
You can designate who you want to serve as your Funeral Representative in your Will, in your medical power of attorney document (which I call the Living Will and Patient Advocate Designation), or in a separate document either witnessed by two other persons or notarized (or both). In the past, I have put this in your medical power of attorney document but as we see how this new law is playing out, there is a trend towards putting this in a separate standalone document which I can prepare for you and you can take it home to discuss with your loved ones.
Who Could Benefit from the Use of a Funeral Representative Designation?
Not everyone needs one – it is completely voluntary. It is an option if you want to alter the priority of decision-makers as it would otherwise exist without a Funeral Representative Designation.
For example, if you are married and you want your spouse to make your funeral arrangements, then a Funeral Representative Designation would not be necessary. But if you did not want your surviving spouse to make these arrangements – perhaps you’re in a second marriage and a blended family and would prefer an adult child of yours from your previous relationship to make these arrangements, then a Funeral Representative Designation would absolutely be recommended. Or if you are unmarried and do not have family nearby, or if you are unmarried but have a significant other, then a Funeral Representative Designation would be recommended.
However, even in traditional families with a surviving spouse and surviving children and no disagreement among everyone, I encourage you to still think about a standalone Funeral Designation document so that you can take it home and discuss your funeral and burial wishes with your family members. Clients can appreciate having a document in front of them and using it as an opportunity to start the conversation and keep communication lines open and clear.
Spelling Out Your Funeral Wishes
A Funeral Representative Designation also gives you a wonderful opportunity to spell out formally your specific funeral and burial wishes in writing if you have any. While the Act does not require that Funeral Representatives actually follow these exact wishes, spelling it out for them gives them clear guidelines and are more likely to be followed by your Funeral Representative and accepted by your next of kin, if any.
So Who Pays for the Funeral?
Hidden in the new statute is a very important part that can easily go missed: your Funeral Representative is required to ensure payment of the costs related to the disposition of your remains, whether through insurance, your estate or Trust, or someone else, or a prepaid funeral contract, otherwise your Funeral Representative is personally liable. So you can see why a person would decline to serve as your Funeral Representative due to fear that he or she will ultimately be responsible for your funeral and burial costs so I suggest that if you decide to execute a Funeral Representative Designation you make sure you provide for payment of costs and arrangements of your funeral and burial in your Will or Trust, through a prepaid funeral contract, or another type of arrangement, or through your life insurance policy. Note that in the documents I prepare for you, I always put in your Wills and Trusts that funeral costs must be paid first before your estate or Trust assets are distributed to your beneficiaries so this should not usually be an issue for you as long as you regularly review your assets over time, keeping in mind that funeral and burial costs can be significant, averaging out to be about $7,000.
A Quick Note on Fiduciary Duty
The most controversial part of the new law is that it is not clear whom the Funeral Representative owes a fiduciary duty. According to the Michigan Association of Funeral Directors, who was a big part of the Act’s passage, the duty only runs to the living and not the deceased. The potential conflict would seem to be when a deceased person has made certain wishes known to the Funeral Representative and the next of kin objects to those wishes. Is the Funeral Representative bound to follow the deceased’s wishes or does he/she have a duty to the next of kin? The Act is not clear on this point so any major disagreements may have to be ironed out by petitioning the Probate Court to intervene.
Share this Document with Your Funeral Representative
Lastly, you should share this document with your designated Funeral Representative and any successor you name. That way, he or she can get involved as soon as possible after your death, especially if he or she is not your next of kin.
If you have any questions about Funeral Representative Designations or any other questions about estate planning, please don’t hesitate to contact me.