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New Michigan Law Allows for Funeral Representative Designation in Estate Planning

The State of Michigan recently passed a new law (which will become effective on June 27, 2016) that allows you to name a funeral representative, who is a person with the authority to make decisions regarding your final arrangements and resting place after death. We believe this is a much needed update to existing Michigan law, and will provide you with Peace of Mind that a person of your choosing will take care of your final wishes.

Previous Michigan Law

Previous to the new Michigan law allowing for designation of a funeral representative, there was often confusion over who was allowed to make decisions about your funeral arrangements and disposition of your body. The law only allowed for your spouse, children or close relatives to have the legal authority to make those decisions, and you could not even name a certain representative from among those persons. This restriction created a lot of tension if your children could not agree on arrangements, if there were no relatives nearby at the time of your passing, or if there was an estranged relationship.

Who can now serve as a Funeral Representative in Michigan?

Rather than limiting the decisions regarding your arrangements after death to only your spouse or relatives, the new Michigan law allows you to name anyone over age 18 to serve as your funeral representative (subject to the below exceptions). You are also allowed to name a successor funeral representative if the first named person is unable to act.

This new role of funeral representative in Michigan is especially important if you do not have family members, or they do not live close by. You can now name a close friend or pastor as your funeral representative, giving you certainty there will not be a delay in carrying out your final wishes.

New Order of Priority

The new order of priority in Michigan for someone to have the legal authority to make decisions regarding the disposition of your body is as follows:

  1. If you are a service member, the person who may be designated by federal law
  2. The person you designate as your funeral representative
  3. Your surviving spouse
  4. Your children (over age 18)
  5. Your grandchildren (over age 18)
  6. Your parents
  7. Your grandparents
  8. Your siblings

This is a much more specific list than the previous law, and gives greater clarity to a funeral home regarding who has legal priority to make decisions. The new law also makes clear that 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.

Who cannot serve as a Funeral Representative in Michigan?

The following categories of persons are not allowed to serve as your funeral representative (unless the person is also your spouse or close relative):

  • A licensed health professional
  • An employee or volunteer of a health or veteran’s facility that provided care during your final illness
  • An officer or employee of a funeral establishment that will provide services for you
  • An officer or employee of a cemetery where you will be interred
  • An officer or employee of a crematory where you will be cremated

In addition, the law provides that anyone who has been criminally charged with your intentional murder is not allowed to serve as your funeral representative.

How is a Funeral Representative Chosen?

You can designate who you want to serve as your funeral representative in your will, in your health care power of attorney document, or in a separate document either witnessed by two other persons or notarized.

While the law says that a funeral representative designation in a will is valid even if the will is not probated, we recommend naming your funeral representative in a separate document. The funeral representative designation is a document designed to be reviewed by a funeral home or crematory, and there is no need for your entire will to be made public and reviewed by those establishments.

What are the duties of a Michigan Funeral Representative?

Your funeral representative has the “right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body, including, but not limited to, decisions about cremation, and the right to possess cremated remains of the decedent.” MCL 700.1104(j).

Before being allowed to act, your funeral representative must sign an acknowledgment of their duties. The power to act is only effective after your death, and the power to act cannot be assigned to someone else by your funeral representative.

In addition, your funeral representative is specifically liable for ensuring payment of the costs related to the disposition of your body, whether through insurance, another person, your estate, or the funeral representative. [Note: I can see a situation where a person declines serving as a funeral representative due to a fear he or she will be stuck with the funeral bill, so it is important to have a conversation with your funeral representative on how your wishes will be paid for after your death.]

How is the Funeral Representative Designation Revoked?

You may revoke your designation of a funeral representative in the same manner as you designated the representative, which will require a notary or two witnesses to the written revocation. The law also provides, upon your divorce, for the automatic revocation of a designation naming an ex-spouse.

Action Steps

We view the Michigan funeral representative as another tool in a comprehensive estate plan that will provide you with the Peace of Mind your final wishes will be taken care of with the least amount of stress possible to your loved ones. One of the most common disagreements we see is when children are unable to decide what should be done with a parent’s body after death. The funeral representative designation can be done as a simple stand-alone document even if you do not have a will or powers of attorney, and has the potential to relieve a lot of uncertainty after your passing.

If you would like more information about designating a funeral representative, or our entire package of estate planning services, please contact Attorney Adam Zuwerink at adam@westmichiganlaw.com or 231-457-4235.