Who Has the Right to Make Your Funeral Arrangements?

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Making decisions regarding your funeral wishes isn’t something everyone is comfortable doing, or even considers planning. However, taking the initiative to make these plans in advance can be very beneficial, particularly if you have strong preferences regarding burial versus cremation, religious desires and/or cost concerns.

If you are going to prearrange all or part of your funeral needs, here are some things you might want to consider;

  • Determine if you prefer a burial or cremation
  • Decide which funeral home service you want to use
  • Designate funds from your estate to cover the costs
  • Indicate your religious or spiritual preferences

Once you have made these basic, but very necessary decisions, it will be important for you to appoint someone to carry out your wishes. Legally, the person named as the executor/executrix of your estate will be responsible for following your burial plan. But, if you have a next of kin, such as a spouse, sibling or child, you can also designate that person to be responsible for the planning and implementation of your wishes. Please keep in mind that if there is a dispute between your executor/executrix and a family member, the executor will hold the final decision making power.

Leaving directions for your funeral service can be done in a couple of different ways. First, you can leave the instructions as part of your last Will and Testament. In addition, you can also use this document to name the individual you want to carry out these instructions. If you are going to name a particular person, or use your executor, be sure you have shared your wishes with them in advance. If you are using someone other than your executor/executrix, be sure you inform the executor that it is your wish that the named person has the final say in carrying out the plan. But, keep in mind that if there is a dispute, the law will support the executor as having the final say in the decision making process.

This applies likewise to the types of instructions you leave behind. Whether you leave instructions by letter or by Will, the instructions will not be legally binding on either the executor or the named person in the letter or the Will. Therefore, when choosing the person that you would like to carry out your final wishes, try to choose someone you trust will honor them. In addition, it is wise to keep your instructions simple, doable and legal. In the event that you have requested something that is too difficult or illegal, it is highly unlikely the wish or wishes will be carried out.

There are some things that you may request, but are not legally enforceable. For example, if there is someone you do not want to attend your services, you certainly can make this known. But, there is no legal way in which to enforce such a request. Additionally, while you can leave your real and personal property to a designated beneficiary, you cannot do the same with your body. There is no common law property right in a body. Therefore, if the law must get involved in the situation, it is clear that the executor will have the final say.

For the aboriginal people the question of burial can be slightly more complicated. In this culture returning the body to country is an important part of the ability of the spirit to rest. Oftentimes returning the body to country results in conflict between cultures, particularly if an aboriginal individual was married or lived in mainstream society. In these instances, spouses can want something different than the deceased’s aboriginal family, or vice versa. If you are a family of mixed culture, it is particularly important that these issues be discussed in advance rather than at the time of death. You are more likely to come to a reasonable solution when those you love can listen to you explain what you would like and why, rather than try to make these decisions under the extreme emotion of grief.

If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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