Funeral Representative Act John A. Scott, May 2016
The Michigan Legislature has recently adopted changes to the Estates and Protected Individuals Code to create a new role, that of "Funeral Representative." Specifically, the person may be appointed by an individual during his or her lifetime, either by will, patient advocate designation or other document, to make decisions about funeral arrangements and the disposition of a decedent's body, including, but not limited to, decisions about cremation and the right to possess the cremated remains of the decedent. Whatever document is used must be witnessed by two persons or be acknowledged before a Notary Public.
Except for persons serving in the military, the properly appointed Funeral Representative will have priority for making these decisions, superior even to family members; although in all probability, the Funeral Representative will be a family member. Prior to the enactment of this legislation competing persons with equal priority to make decisions in these matters had to go to court if they could not resolve the dispute. A Funeral Representative may not delegate his or her powers to another person.
The earlier statute sets the procedure for a prompt probate court adjudication of disputes which may arise between family members. The statute is now broadened to include disputes between the family members and the Funeral Representative. While a Funeral Representative is "presumed' to have the power to make the decisions, there still may be questions regarding the validity of the document or the possible limits on that power. Unfortunately there seems to be no presumption of fiduciary discretion attaching to the decision of the Funeral Representative.
The Court however may consider the reasonableness of the plans of the person contesting compared to the plans of the Funeral Representative and whether the person bringing the action is ready, willing, and able to pay the costs of the desired funeral arrangement or disposition of the body.
Since the Funeral Representative is liable for the funeral bill, it seems unlikely that any non-family member will take on this duty of being the Funeral Representative without a prepaid in-full funeral contract, or guaranteed funds from a life insurance policy or trust or probate estate and a hold harmless agreement from the person holding such funds.