Who Has the Right to Make Decisions About Your Funeral?
Let us have a look at the various statutes and laws existing within the United States of America, regarding the question of personal preference and designation of an agent for the purpose of body disposition and funeral arrangements.
In the United States, about half of the states have laws that make it obligatory for the surviving kin or nominees of the deceased to honor the last wishes and preferences of the deceased person in terms of how they would like their body or remains to be handled and disposed, i.e. Whether a person would like to be buried, cremated, etc.
However, there are a few states which give preference and primacy to the crematory disposal method, such that the deceased person’s personal preferences are overridden.
However, in order to ensure that the deceased’s final wishes are honored, it is always recommended that their last wishes be penned down rather than be communicated orally. Most courts of law, uphold the written wishes of the deceased unless of course they happen to be socially or ethically unacceptable or wildly impractical.
There are many laws and statutes in many of the states that allow a person to also nominate a designated agent before their death, an agent who is entrusted with the responsibility of body disposition after death. The agent acts on the wishes of the deceased and performs all the requisite rites to honor the deceased person wishes, whether they are for cremation or for burial. Sometimes, in many states the law may allow a person to entrust greater responsibility to a designated agent, such as disposing of the body, body parts or organs after death. The agent can also be nominated to oversee funerary arrangements of the deceased.
This facility is most useful in the case of people who are separated from surviving kin and relatives or are unmarried, separated, estranged or unattached. The designated agent law will then allow such a person to nominate an agent who isn’t a legal spouse or a relation to carry out the last wishes regarding the nature of the funeral and method of body disposition. Sometimes, this law can also be used to nominate one of the offspring over the others.
One of the important point to note here, is that the last wishes of the deceased can only be honored if they are financially feasible and practical. Honoring the last wishes of the deceased is also conditional upon the fact that the circumstances have not changed significantly enough to make the preferred choice of disposition as unviable.
For instance, a person decides to donate his or her body to the cause of science and research in a university of a particular state. However, the person dies in another state in the country. Now the question arises whether it is still feasible to carry out the wishes of the deceased as the cost of transport and logistics and preservation is proving to be too exorbitant? Or what if the deceased wanted an elaborate funeral involving public viewing, but died leaving insufficient funds?
Would the designated agent, then be obligated to still honor the wishes of the deceased person? The law around such situations is specific and unambiguous. The designated agents are only bound by law to carry out those wishes, which are reasonable, practical and for which sufficient funds are made available.
With this as a background, let us proceed to have a closer look at how individual states within the country formulate their laws around body disposition and around honoring the last wishes of the deceased.
PERSONAL PREFERENCE LAWS FOR BODY DISPOSITION IN USA
The state of Alabama in the year 2011 made a designated agent law, which allowed its residents to choose an agent to perform the disposition of their remains. The form used for this can be downloaded by clicking HERE.
In the state of Alaska, as of today, no law exists that allows a resident to legally either appoint an agent or have their funeral last wishes honored under the Alaskan law.
In the state of Arizona, a person can nominate a Designated Agent and also have their last wishes carried out through the Personal Preference Law under Arizona Statute Title 32-1365.01. This law allows the person to authorize cremation or any other funerary disposition method in a written document. Also the law gives all rights to the person and does not require any additional authorization from the children or the spouse. The statute 36-3221 within the law allows the person to provide the designated agent with a health care power of attorney that authorizes the agent to perform the funeral and burial arrangements. However, one of the criticisms directed at the law is that it is confusing and its various directives are conflicting.
The statute 36-831 elaborates on the Burial duties. It also encapsulates the notification requirements, as well other issues such as the failure to perform duties and its consequences under the law and the various definitions within the statute. The law further states that the duty for funeral and disposal arrangements fall on the spouse if the spouse is alive and was married to the deceased and not separated or in the midst of a divorce proceeding with the deceased at the time of death. The next person on whom the responsibility devolves is the designated agent nominated by the deceased.
The state of Arkansas on the other hand has a more straightforward law which was enacted in 2009 allowing a person to specify funeral arrangements and designate an agent in advance, to whom the deceased can also leave the specifics of decision-making in terms of disposition, funeral arrangements, etc. In order to download a declaration form that is compliant with the Arkansas law, click HERE.
The state of California also has provisions of a personal preference law, which can be located in the California Health and Safety Code 7100.1, as well as a designated agent law, which can be sourced in CHSC 7100. You can find out more on both these laws online on the California legislature’s website.
In the state of Colorado, a person under the Title 15-19-104 of the Colorado Statutes has the right to make his own legally binding written document outlining his last wishes regarding the disposition of the body and funeral arrangements. To access and view the form, please click HERE. Colorado provides to all its citizens a personal preference law and a designated agent law to direct their funeral arrangements and body disposition method.
The state of Connecticut, on October 1, 2005, enacted a law that granted a person residing in Connecticut the legally binding right to indicate their personal preference in terms of funeral arrangements and disposition of their body. The person is also entitled to appoint an agent to fulfill their wishes after their death.
District of Columbia
Persons residing in DC, under the rights granted by the DC Code, Division 1, Subsection 3-413, possess the right to designate an agent for the disposition of their body. Their written and documented last wishes override all other people’s wishes, including that of next of kin. DC government’s website.
In the state of Delaware, under the Title 12, Chapter 2, subsections 264 and 265 of the Delaware Code there is a twin provision of a personal preference law and a designated agent law, which lets its resident decide on their body disposition method.
The state of Florida also has a personal preference law, whereby citizens residing in Florida can specify their funeral arrangements as well as the last rites, such as cremation or burial.
The state of Georgia, by the power of the Georgia Code Title 31, Chapter 36, allows a Georgia resident to appoint a designated agent for funeral arrangements and body disposition using the provision of state’s Durable Health Care Power of Attorney feature. This can be found HERE.
The state of Hawaii, also has a personal preference law and a designated agent law, which was enacted in 2013. To access the Hawaii form, click HERE.
The state of Idaho allows its residents the legal right to designate an agent using the Durable Power of Attorney for Healthcare feature. The designated agent also has the additional authority for disposition arrangements, unless the person decides to withhold that from the agent using an article off right enshrined in Title 54 of Chapter 11 in section 42 (54-1142) found HERE.
The state of Illinois, under chapter 755 of Illinois Statutes, Estates, Disposition of Remains Act, enacted on January 1, 2006, Permits its residents to specify their own body disposition method and funeral arrangement in a legally binding written document. The law also allows them to designate an agent, who has additional authority to make decisions at his own discretion if no instructions are left behind by the person at the time of death. Click HERE for more info.
In July 2009, Indiana State introduced the Funeral Planning Declaration form that allows residents to specify their last wishes regarding their funeral and body disposition. It also allows them to select beforehand a designated agent who under the law possesses the legal authority to fulfill the last wishes of the deceased. For those residents who die without leaving behind any instructions and without filling out the Funeral Planning Declaration form, a previously named person or agent in the health care power of attorney will help decide on the body disposition and funerary rites of the deceased by becoming the legal custodian of the body.
However, if a person or agent is already designated in the Funeral Planning Declaration form, such a person or agent will have legal precedence over the agent named in the durable power of attorney for health care form in the matter of the disposition of the dead body.
In the state of Iowa, the statute SF 473 came into effect on the first of July 2008.
By the power of this law, the resident has the right to designate an agent to make all final arrangements for the body disposition. However, for this to happen, the person MUST attach the form to a Durable Health Care Power of Attorney in order for it to be effective. The form can be downloaded HERE.
The state of Kansas also has a designated agent law enshrined in Statute number 65-1734. To know more details, you can check it out on the Kansas Legislature website which has the facility for looking up a law or statute by the statute number.
In the state of Kentucky, the law in effect is generating more confusion than clarity for the residents of Kentucky. The Statute bearing number 367.97501 states that an “authorizing agent” can legally order the cremation of the deceased. The confusion begins, when it defines who an “authorizing agent” is. Firstly, the authorizing agent is described as the deceased person himself, and then subsequently it is the next of kin.
Despite some confusing verbiage, in a nutshell the law basically can be interpreted to mean that the deceased’s written wishes take precedence over the wishes of any other person, including the spouse or next of kin.
However, there are other confusing laws in Kentucky, such as statute, 367.97527, which requires that the person sign a cremation authorization prior to his death for the final wishes to become legally binding, but a little later, the law also contends that the next of kin can legally question the deceased’s arrangement, and the crematory cannot cremate the body without a court order.
Kentucky laws need to be revised and made clearer and less contradictory for the convenience of its residents. Search HERE the statute.
On the other hand the state of Louisiana has a simple and complicated law, which basically in a nutshell states that the written and notarized last Wishes of the deceased are sole deciders of the remains and funeral arrangements of the dead person.
The state of Maine allows for the designation of an agent for body disposition and honoring the last wishes of the deceased individual. This right in enacted in the statute bearing Title 22, §2843-A; no. 2 of the Maine Statutes which can be found HERE.
The state of Maryland’s Advance Directives forms gives the residents the legal option to designate an agent to fulfill funerary wishes of the deceased and also their body disposition requests. The form and a comprehensive booklet can be downloaded HERE.
In the state of Massachusetts the last their wishes of the deceased can only be fulfilled by paying a funeral director prior to their death. The Massachusetts regulation numbering CMR 239, 3:09 specifies that in case a preneed (prepaid) contract is in effect, then the funeral director is obligated to honor it. If not, then the right of disposition of body devolves to the next-of-kin.
The state of Michigan allows its citizens to write down their last wishes in their will, but also gives a right to the next of kin to override the wishes of the deceased. If a person decides to enclose last wishes in the will, then it is advisable to make this known to everyone and also specify the location of the will to all the concerned parties because in most cases, they will reading happens after body disposition and therefore any directions or instructions about the body disposition may only be known to the concerned parties quite late for them to act on it.
In the Minnesota state, residents have use of a personal preference and a designated agent law. The law enshrined in Statute number 149A.80 permits residents to have a written document outlining disposition method and also allows them to designate an agent to honor the last wishes. The residents have the option of using an advanced medical directive also to specify their wishes.
In the state of Mississippi, the law effective on July 1, 2004, allows the residents the option of having a legally binding, prepaid funeral contract, which cannot be set aside by the next of kin. In Mississippi, the residents have to pay the funeral director ahead of time. Mississippi does not have helpful consumer protection regulations.
In the state of Missouri, there is the provision of a Designated Agent law. It is enshrined in Chapter 194 called Death – Disposition of Dead Bodies, under Section 194.119, of the Missouri Revised Statutes. This law allows resident to nominate anyone as next of kin using the Durable Power of Attorney for Healthcare. The next-of-kin has the right of custody and to decide about the disposition. Read more HERE.
The state of Montana has a designated agent law since 2009. Download the Form HERE.
The state of Nebraska allows its residents to have their last wishes, whether documented or oral wishes to be honored. In 2003, the designated agent provision was added under statute section 71-1339.
In Nevada since 2003, the residents have been able to designate an agent for carrying out either burial or cremation. This law is found in Chapter 451 of the Nevada Revised Statutes.
The state of New Hampshire has a designated agent law, and a detailed set of instructions on who gets the custody of the body. The first legal preference as clarified in 290:17 New Hampshire Statutes, goes to the designated agent. If no designated agent exists, or if designated agents refuses, then next in line is the next of kin. If there be two or more next of kin, then they decide by majority vote as to who gets the custody. If the next of kin is unable to come to a decision, then the court decides on receipt of a petition by kin under the RSA 290:19, IV.
In New Mexico too, a resident under statute 24-12A-1 can fully authorize in their lifetime, the cremation of their body after death. Under statute 45-3-701 B, the resident may also legally designate an agent for performing the last rites. Click HERE to download the Form.
New Jersey also has a Designated Agent law that came into effect in 2004 under statute, Title 45:27-22. However the law requires that the deceased prior to his passing make his wishes known to all the concerned parties in a will. N.J. Legislature Official website.
In New York, under Section 4201 of the Public Health Law, a resident can designate an agent to perform body disposition. The New York law has a statutory form for the resident usage. For more details, check New York’s Legislature’s website.
The state of North Carolina starting in 2007 allowed all its residents the right to decide about their funeral arrangements, including cremation or burial, and also the right to the body or organ donation if the deceased so wished and specified. The resident can do all of the above using the Health Care Power of Attorney form. The form can be downloaded from the NC website.
Additionally, there is also the option of a stand-alone form for authorizing a cremation prior to death in the state of North Carolina, although it is recommended that the residents fill up the whole Health Care Power of Attorney form.
In the state of North Dakota there exist no laws as of today that provide citizens the authority to specify the disposition of their own bodies, or even to designate an agent to do the same. The state’s law in Title 23-06-03 states that firstly the duty of disposing the body of a deceased falls upon the surviving spouse if deceased was married at the time of death. If the deceased was unmarried then it falls to next in line kin who possesses sufficient means to perform the last wishes.
The state of Oklahoma has a personal preference and a designated agent law. The law states that people have the right to specify the disposition of their body or body parts as they wish. They can also give the right of disposition to a designated agent in a sworn affidavit. The law further holds that the designated person who fails to fulfill the last wishes can be found guilty of a misdemeanor and fined up to $5,000.
The state of Ohio brought into Effect on October 12, 2006, a law that allows its residents to designate the means of disposition of their bodies as well as a body or organ donation. This statute allowing this can be located in 2108.70 of the Ohio Code. To download the Ohio Designated Agent Form, click here.
In the state of Oregon, the Oregon Revised Statutes, 97.130 allows its citizens to enjoy a personal preference as well as a designated agent law.
Pennsylvania has a designated agent law which is found in the Pennsylvania Statute, under Title 20, in Chapter 3, Subsection 305. This statute basically states that the wishes of the deceased have precedence over the wishes of the next of kin and the person has a right to designate whomever he wills to oversee the disposition of his body. More info HERE.
Rhode Island has a designated agent law which can be found in SECTION 5-33.3-4 HERE.
South Carolina also possesses a personal preference law, wherein, a resident can authorize cremation buying using a Cremation Authorization Form, which can be found in the South Carolina Code of Laws, under Section 32-8-315 at the State Legislature Website. Using Section 32-8-320, the resident can designate an agent for disposition by noting down their last wishes in a will or any other attested document. In South Dakota, there is a personal preference law, which is located within Title 34, Chapter 26 of Section 1 of the South Dakota statutes HERE.
In the state of Tennessee, a citizen can designate an agent for performing body disposition under the law encoded in the Tennessee Code, Title 34, Chapter 6, and Part 2. By using a durable health care power of attorney. In Texas, laws exist to ensure the honoring the last wishes of the deceased. Residents can designate an agent too for disposition of remains, using the relevant form contained in the Texas Health and Safety Code 711.02.
Utah allows for designated agents to carry out the last wishes of the deceased, which may be written down in an approved document.
Vermont state made Effective on September 1, 2005, the right to direct the disposition of one’s own body, and designate an agent Under Title 18, Part 231 of the Vermont Statutes. Residents can download the Vermont Advance Directive from the Vermont Ethics Network HERE.
Virginia allows the honoring of the last wishes of the dead and also allows the designation of an agent.
In the state of Washington, a resident is given the right to direct their own body disposition under the Revised Code of Washington, 68.50.160. The law ensures that the last written wishes of the dead are honored, provided the wishes are documented on paper and attested by a witness.
In addition, a designated agent law was approved in February, 2011, which allows residents to nominate a designated agent prior to their death to direct their funeral arrangements and disposition. The designation of an agent must be documented on paper and attested by a witness for it to be legally binding.
There is a statutory duty to comply with the written wishes of the deceased. A preneed agreement may not be substantially altered by survivors. You can find the right to direct your own disposition in the Revised Code of Washington, 68.50.160.
In the state of West Virginia, residents under the Statute 16-30-4 are given the right to decide their funeral arrangements and disposition wishes in an advance medical directive. Alternately, they also have the right to designate an agent to do so.
Wisconsin also has a law which gives its residents the right to nominate an agent under an Assembly Bill 305 which was signed by the Governor on March 5, 2008, Download the Form HERE.
The state of Wyoming has a designated agent law, which is located within statute, Title 2, Chapter 17, 2-17-10.