You Can Direct Your Own Funeral

You Can Direct Your Own Funeral

by Ronald P. Hammer

HammerWhen it comes to making funeral plans, most people avoid the subject altogether. For those who do think about it, the majority assume that their relatives will make funeral arrangements after they die in a manner similar to what other family members have done in the past. For example, most people assume that the arrangements made by the surviving spouse, after the death of the first spouse, are exactly what the surviving spouse would also want for themselves at their subsequent death. Many times, the decisions made immediately after the death of a loved one are done in haste and may not actually be the preference of either the departed or all of the immediate relatives.

In earlier times, tradition dictated a rather standard set of procedures for most families. Today there are several factors, including costs, blended families and religious preferences, which can result in other choices being preferable.

Some people have a legitimate concern that their closest relatives will not make the arrangements that they would prefer. This can happen for a variety of reasons. Many times the relatives will not know what the deceased would have wanted. Sometimes the relatives are not able to agree among themselves on what ought to be done. This is particularly apparent in cases where the deceased has been married more than once and may be survived by a spouse who is not the parent of the children. Even when there is no surviving spouse, there can be a number of people who stand in the same relationship to the deceased, but who do not agree on what, when and how the final disposition of their relative should be accomplished.

For centuries the law has provided that all decisions regarding the disposition of a body are to be made by the next of kin, who have generally been the spouse, children and more remote relatives in that order. This definition has always excluded anyone who is not a blood relative, unless they were legally married to the deceased.

In order to provide a more certain system and enable a person to make their own direction in advance, the Wisconsin legislature, in March 2008, created Section 154.30 of the Wisconsin Statutes. The new statute makes it possible for an individual to designate in advance who will make the arrangements for their final disposition. The statute also sets forth the priority in which those final disposition decisions can be made in the absence of a written directive, thereby clarifying the law for everyone.

Under the statute, a "final disposition" means the disposition of a person's remains, including (1) arrangements for viewing, (2) a funeral ceremony, memorial service, grave side service or other last right, and (3) burial, cremation or donation of the body.

If a person makes a proper designation of their representative for final disposition, that designated representative will control the final disposition of the remains. If such a written authorization is not made, the statute then provides that the final disposition will be made by the surviving spouse, or if there is no surviving spouse, then by a majority of the surviving children. If there are no children, then the final disposition is made by the surviving parent of the deceased. If there are no parents, then a majority of the surviving siblings makes the decision. If there are no siblings, then more remote relatives, according to their degree of kinship, make the arrangements. If no relatives can be located, the decisions are made by the court-appointed guardian, if one was appointed prior to death. If none of the above are available, the final disposition can be controlled by "any individual ... who is willing to control the final disposition and who attests in writing that he or she has made a good faith effort, to no avail, to contact the individuals" who would otherwise have authority under the statute.

The statute also contains a procedure for a decision by the local probate court if there is a disagreement among the class of individuals who have control under the statute. Under that section of the statute, the court can consider the personal relationship between the decedent and each of the individuals claiming the right of final disposition, including whether they were estranged from the decedent.

The creation of a procedure for a written declaration will make it possible for individuals whose families are not close or in agreement, to sign a written document that will avoid the need to have a potentially protracted and divisive hearing regarding the disposition of their remains. The new statute sets forth a form in which the individual is allowed to name not only their first choice, but also their second and third choice of representative. In addition, the form also provides for special directions, instructions concerning religious observances and suggested sources of funds to be used to pay for the final disposition.

The form must be signed in the presence of two witnesses, or in the presence of a notary public.

The statute allows an individual to choose any representative they wish, regardless of legal relationship; provided that, individuals who provide funerals, cremations, cemeteries, health care or social services, are not allowed to be named as the representative, unless they are also related by blood, marriage or adoption.

The form itself may be obtained, at no charge, from the Wisconsin Department of Health Services, at the following link:

http://dhs.wisconsin.gov/forms/AdvDirectives/ADFormsPOA.htm

Of course, no form or statute can address all situations that may arise and after a death has occurred there is no opportunity to clarify the directions given. Anyone who wishes to utilize the statute, but is concerned that their circumstances may not be adequately addressed by the statute, should consult with an attorney to be certain that the document that they prepare complies with the statute and accomplishes their intended purpose.