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Who has the Legal Authority to Make Decisions When You Die?

Man with urnWhen funeral arrangements are being made, the Funeral Director is often caught in the middle, between family members and wishes for the type of funeral being planned.  You may think that when a family’s mother or father has died and a funeral has to be planned, that the family would be a cohesive decision making unit.  This is often not the case.  When death and money mix, various family members can have radically different views as to the type of funeral to plan and merchandise to select for the funeral.  This is especially the case if mom or dad did not preplan or prepay his or her own funeral arrangements.  In this blog post, we’ll talk about who has the legal authority to make decisions when you die.

I have been assisting families when they all look around the table and ask each other if mom or dad ever talked about the kind of funeral they wanted.  Did they want burial or cremation? Did they want a service in the Church or the Chapel?  Blank stares and the “deer in the headlight look” come over the families’ faces and they are left in a lurch to learn about funeral planning, their options, merchandise selections – all the while wondering if this is really what mom or dad would have wanted.  I know of one family, whose father died and he never spoke about the type of funeral he wanted, nor whether it was to be burial or cremation.  The families’ consensus finally was to have a service for dad and then have him cremated.  Everyone felt good with that decision and process – until they found the will and read it to find out that he preferred burial!  Oh Dear!  We do not have the technology to un-cremate a person and now the family is left with the memory that they did not do what their father had wanted done.

If the deceased had a valid will, then the Estate trustee, also called the executor or executrix, has the legal authority to decide what happens to the deceased person’s body.  Although the Estate trustee is often the spouse, if it is not, then the Estate Trustee is the person the funeral director will take direction from.

The entire funeral planning process is even more horrific if the deceased did not leave a will.  When a person dies intestate, then the huge question arises as to whom has the decision-making authority?  The order of who may act as legal representative to make decisions is the spouse followed by adult children.  Well that sounds reasonable – right?  Two young ladies I am working with were thrust into a very difficult position.  Their mother and father are divorced so there is not a spouse to act as the legal representative.  Their aunt thought there was a will that appointed her as the legal representative – well no will was found.  In the meanwhile, the aunt acting on her belief as legal representative, organized her brother’s funeral with a religious tone to it. The adult daughters felt sidelined and they were not consulted about their father’s funeral at all. The funeral for their father was very different from what they thought he would have wanted.  Their recollection was that he would want more of a fun, lively tone to his funeral celebrating his life.  This was not the type of funeral completed.  Not only are they shell shocked that their father died suddenly, they are also very hurt that they were not involved in the funeral arrangements.

So who has the Legal authority to decide what will happen to a deceased person’s body?

  1. Estate trustee as named in the deceased person’s will
  2. Estate Administrator appointed by the court
  3. Spouse
  4. Adult children

If funeral arrangements are not preplanned and prepaid, then the Funeral Director will ask for proof of authority to make the funeral decisions for the deceased.  The proof of authority required may be a valid will appointing the Estate trustee, also known as the Executor or Executrix; or a court order authorizing you as the Estate Administrator appointed by the court.  Photo identification may also be required to support the appointment.

You may obtain a list of licensed funeral homes and funeral directors from the Ontario Board of Funeral Services.   To learn more about will and estates law, please click here for the Ministry of the Attorney General.

I’d love your feedback. Don’t forget to leave a link back to your own blog if you have one via the commentluv feature you’ll find here on the site.

Until next time,

Kat

 

 

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