What is a Funeral Agent, and Why Do I Need One?

In 2003, the New Jersey Legislature amended the New Jersey Cemetery Act to permit individuals to designate a personal representative, known as a funeral agent, to control the individual’s funeral arrangements and disposition of his/her remains.  See N.J.S.A. 45:27-22(a).  The designation of a funeral agent must be included in your will to be enforceable.  If a decedent does not appoint a funeral agent in his or her will, the statute sets forth the order of those with the right to control the decedent’s funeral and the disposition of his/her remains.  The order of priority set forth in the statute is as follows:

  1. The decedent’s surviving spouse, civil union partner, or domestic union partner;
  2. A majority of the surviving adult children of the decedent;
  3. The surviving parent or parents of the decedent;
  4. A majority of the brothers and sisters of the decedent; and
  5. Other next of kin of the decedent according to the degree of consanguinity.

What happens when the people set forth in the statute can’t agree?  In a recently published decision, Matter of the Estate of John E. Travers, Jr., No. P-2253-2017, 2017 WL 10841709 (N.J. Super. Ct. Ch. Div. Nov. 17, 2017), the New Jersey Superior Court provided guidance over how to resolve disputes where individuals with equal statutory standing cannot agree on funeral and burial arrangements.

John E. Travers, Jr., died unexpectedly at the age of twenty-two.  Travers was not married, and had no children.  He did not have a will, and therefore had not appointed a funeral agent.  Pursuant to the statute, John’s parents had the first priority to control his funeral and the disposition of his remains.  However, John’s parents, who were divorced when John was 14, could not agree on the appropriate disposition of their son’s remains.  John’s father wanted John’s remains to be buried, while his mother wanted John’s remains to be cremated.  Each parent provided the court with reasonable, personal and emotionally-charged explanations for their respective positions.

The Court identified four factors to be considered in any dispute where next-of-kin of equal statutory standing cannot agree on funeral arrangements and disposition of remains.  Those factors are:

  1. Which person is more likely to abide by the wishes and desires of the decedent as expressed through communications with another, to the extent the decedent made those communications;
  1. Which person established a closer relationship to the decedent, and is thereby in a better position to surmise the decedent’s desires and expectations upon death;
  1. Which person is more likely to adhere to the religious beliefs and/or cultural practices of the decedent, to the extent that funeral arrangements and/or disposal of remains are addressed by such beliefs and practices, and to the extent that those beliefs and practices are relevant to inform the court as to the wishes, desires and expectations of the decedent upon death; and
  1. Which person will ultimately be designated as administrator(s) of the estate and act in the best interests of the estate to: (a) determine the costs, funeral arrangements and/or disposition of human remains; (b) assess the ability of the estate to pay for the costs of funeral arrangements and/or disposition of human remains; and (c) arrange for alternative funding and/or resources to effectuate the funeral and/or disposition in the event that the estate does not have the ability to pay for the costs of human remains.

After reviewing these factors, the court concluded that John’s father should be granted the authority to control the disposition of his son’s remains, because John had a closer relationship with his father than with his mother.  John lived with his father following his parents’ divorce, and was employed full-time by his father in the family business.  John only saw his mother sporadically and primarily communicated with her through telephone calls.  Based on these facts, the Court concluded that John’s father was in a better position to surmise John’s wishes and desires for the disposition of his remains.

The appointment of a funeral agent in your will is extremely important.  It is the best way to avoid a dispute between family members and to ensure that your wishes regarding your funeral and the disposition of your remains are honored.  While sharing your wishes with family members prior to your death is important, it is not enough.  What if you were to die while you were in the middle of a divorce?  Your soon-to-be ex-spouse would control your funeral.  Or if you outlive your close family members, your funeral could be left in the hands of a distant family member with whom you have not had any relationship.

Your funeral agent should be someone who you are confident will adhere to your wishes, regardless of the order of priority established by the statute, and regardless of their personal beliefs.  Your funeral agent does not have to be the same person you appoint as the executor of your will – you can appoint a family member, a friend, or even a clergy member.

We encourage you to contact the firm if you have any questions about the appointment of a funeral agent.

Please Pass the Turkey, and Sign that HIPAA Authorization Form

Many families with college students are eagerly anticipating their return for Thanksgiving break.  In the flurry of making all of the necessary preparations for college, it is easy to lose track of the fact that most college students either are 18, or will turn 18 during their freshman year.  Once a child turns 18, parental authority ends.

In order to ensure that parents will be provided with medical information and are able to act on behalf of an adult child in the event of a medical emergency or illness, parents should consider getting three documents in place before your adult child goes off to college, or when they are home for the next break:

  1. HIPAA Authorization Form

HIPAA stands for the Health Insurance Portability and Accountability Act, which was passed by Congress in 1996.  HIPAA privacy regulations require health care providers to develop and follow procedures that ensure the confidentiality and security of health information. In short, without this form, medical providers are prohibited from sharing medical information with anyone other than their patient.  A signed HIPAA authorization form allows health care providers to disclose health information to anyone designated on the form, including parents.   Your child can limit the information that will be disclosed pursuant to the form, so that sensitive information regarding mental health treatment and drugs remains private.

  1. Health Care Power of Attorney

By signing this document, your adult child designates one or both parents as her/his proxy or health care representative.  The health care proxy/parent is granted legal authority to make medical decisions for the adult child in the event the child becomes incapacitated and is unable to make decisions on her/his own behalf.

  1. General Durable Power of Attorney

Having this document naming one or both parents as agent will allow a parent to make financial decisions and handle legal affairs for their adult child in the event that the child becomes incapacitated.  A general durable power of attorney will allow a parent to, among other things, manage bank accounts, pay bills, sign tax returns, and apply for government benefits.

Important considerations:

  • Once the documents are properly signed, scan them so that they are easily available on your cell phone and computer
  • Provide copies of the HIPAA authorization form and Health Care Power of Attorney to the health services office at your child’s college
  • If your child is attending an out-of-state college, sign separate documents in both your home state, and the state where your child’s college is located
  • Remember that your adult child can revoke the documents either orally or in writing
  • Make sure that your child shares passwords for any online services that you may need to access in the event of a child’s illness or incapacity, including online banking accounts, and credit card accounts