The Devil Is in the Details

Warhol Sometimes the ideas that resonate most for you on a particular subject come from unexpected sources. Consider this quote from renowned pop artist Andy Warhol: “Dying is the most embarrassing thing that can ever happen to you, because someone’s got to take care of all your details.” I’m not sure exactly which details Andy was referring to here, but the sentiment spoke volumes to me this week as I worked through understanding some of the subtleties contained in New Jersey funeral laws.

A couple had come in to our office to take care of some matters prior to the husband’s major surgery. They had recently completed prepaid funeral plans and wanted to share some of the particulars with us. In addition to a form authorizing cremation of their bodies, they brought along a two-page explanation of New Jersey’s law that allows a person to designate a funeral agent. The idea of a funeral agent was new to me, and so I read through the material they presented to get more information.

The explanation cited a recent court case in Iowa. Mary and Michael Whalen had been separated after years of marriage, but had never divorced. Prior to her death, Mary had told relatives that she wished to be buried in Montana in a plot she had purchased in 2006. She had even written letters to this effect, which she sent to her husband and children in 2012 when she first fell ill. Her wishes could not have been clearer.

When she died in June 2012, however, her husband decided that she should be buried in Iowa. Her children and friends objected, based upon her letters and end-of-life conversations, but the courts sided with Michael because he was her closest next-of-kin; remember, they had never officially divorced. And so, Mary will spend eternity in the flatlands of Iowa instead of under the Montana sky.

Even though this case was decided in Iowa, it highlights an important concept in New Jersey funeral law regarding who, exactly, has the “right to control” your body after you die. N.J.S.A. 45:27:22 says that if a decedent has appointed a person in their will to control the funeral and disposition of the human remains, that person can give any and all instructions regarding what happens to the body after death. The named person is, in effect, the funeral agent, and, according to N.J.S.A. 3B:10-21.1, can carry out their duties prior to probate (which takes at least 10 days after death).

However, if no funeral agent has been named in the will, the right to make final disposition decisions goes to a surviving spouse or domestic partner, a majority of surviving children, a surviving parent, a majority of siblings, a majority of other next-of-kin or, finally, any other person acting on behalf of the decedent.

Pay close attention to the word “majority” in the above explanation. Most of us could tell a few chilling stories about fights involving squabbling siblings or cousins who each think they know best about “what mom would have wanted”. The role of the funeral agent becomes even more important in the case of cremation, due to the simple fact that cremation can’t be undone if there is a dispute among relatives later in the game.

All of this new information about the role of the funeral agent caused me to scramble to the phone and ring up the funeral home that will be directing my Aunt Carolyn’s funeral. I am my aunt’s legal guardian (she’s 107 and no longer competent to make her own decisions) and I have been making all of her legal, financial and health care decisions since 2006. I had made all the arrangements for an irrevocable funeral trust back in 2008 when she became eligible for Medicaid, and I thought at the time that that was all that was needed.

Since cremation was part of the arrangements, I wanted reassurance that that part of the plan could be carried out without issue. After speaking with the funeral director, I sent off several forms for signature to the rest of my cousins back in Massachusetts. As the only remaining relatives of Aunt Carolyn, the majority of us (in this case four people) have to agree that it’s ok to cremate her at the end. All the rights and responsibilities of my guardianship end upon Aunt Carolyn’s death, so my sole opinion on the matter will no longer count. This would also be true if I was her named agent in a durable power of attorney.

So it looks like Andy was right about the embarrassment of death. Regardless of what you might have said, or written or wished to have happen to your remains, you should probably talk with your attorney about naming a funeral agent as part of your will. This is especially true if you want to be cremated, if you are single or if you think there might be disagreements between close relations about arrangements. The agent you choose might be your spouse or close relative or it might be someone else you trust to act dispassionately in carrying out your instructions. You can take a look here to get more details and some suggested language for the appointment. It’s one of those details that shouldn’t be left to chance, guesswork or majority opinion.

Blog by Holly Deni