Michigan Act Permits Nomination of Funeral Representatives to Make Post-Death Decisions

Michigan Public Act 57 of 2016 (the “Act”), which was signed into law on March 29, 2016, and becomes effective on June 27, 2016, amends Michigan’s Estates and Protected Individuals Code (“EPIC”) to provide a means by which an individual may designate an agent to make post-death decisions regarding funeral arrangements and the disposition of his or her bodily remains.

Prior to the Act, EPIC mandated which individuals were presumed to have authority and power to make decisions regarding funeral arrangements and the disposition of bodily remains. Under prior law, a decedent’s surviving spouse had the right to make those decisions, followed by the decedent’s next of kin, as defined by Michigan statute. Although this statutory presumption was subject to challenge in court, the law only directed that a court consider the “reasonableness and practicality” of any post-death arrangements that were planned and the nature of the relationships of the parties involved, in addition to other “relevant factors,” when adjudicating a dispute. Because no weight was expressly given to the wishes of the decedent, the statute effectively prevented individuals from planning ahead to avoid potential disagreements among family members and ensure that their own wishes would be carried out.

The Act mitigates some of these disadvantages by permitting any individual of sound mind who has attained age 18 to nominate an agent, referred to as a “funeral representative,” to make post-death decisions regarding funeral arrangements and the disposition of bodily remains. An individual may also nominate a successor funeral representative, to act in the event the initial funeral representative is unable or unwilling to act. Any such designation must be made in a written instrument that is signed and dated in the presence of two witnesses or before a notary public, and may be included in an individual’s Will or designation of patient advocate (i.e., medical power of attorney). The Act only requires that the named funeral representative (i) be 18 years of age or older and of sound mind, and (ii) may not be an owner, agent or employee of a funeral home, or an agent or employee of a health facility that provided care to the decedent (unless that person is a relative of the decedent). 

By default, if an individual fails to nominate a funeral representative, the following persons (who have attained age 18) are presumed to have the authority to make decisions regarding funeral arrangements and the disposition of remains, in order: (i) the decedent’s surviving spouse; (ii) the decedent’s children; (iii) the decedent’s grandchildren; (iv) the decedent’s parents; (v) the decedent’s grandparents; (vi) the decedent’s siblings; (vii) a descendant of the decedent’s parents who first notifies the funeral establishment in possession of the decedent’s body; (vii) a descendant of the decedent’s grandparents who first notifies the funeral establishment in possession of the decedent’s body; and (viii) the personal representative, or nominated personal representative. As with prior law, this presumption may be challenged in court. If an individual with priority to act cannot be located after a good-faith effort, affirmatively declines to act, or fails to act within 48 hours after receiving notification of the decedent’s death, the next person with priority to act may do so.

Although Michigan law does not specifically instruct a funeral representative as to how he or she must carry out his or her duties, there is good reason to believe that the representative would be reasonably bound to carry out the wishes of the decedent, including any instructions contained in the designating instrument. This conclusion is based on the fact that the Act amends the definition of “fiduciary” to include “funeral representative,” and legislative history suggests that the legislature intended that the funeral representative would owe a fiduciary duty to the decedent. Because the statute is not clear on this point, however, it remains to be seen how Michigan courts will interpret and apply the Act.

Accordingly, any person who wishes to ensure that specific post-death instructions be followed should consider nominating a funeral representative in the manner prescribed by the Act.

Dykema’s Taxation Group members are available to assist individuals in a broad array of tax and estate planning matters. If you would like additional information regarding the process for appointing a funeral representative, or if you would like to discuss the status of your estate plan, please contact Tony Frasca (afrasca@dykema.com), Rob Tiplady (rtiplady@dykema.com), Mike Cumming (mcumming@dykema.com), Dave Dunaway (ddunaway@dykema.com), or your Dykema relationship attorney.