Are You the Responsible Family Member?

We’ve seen it happen time and again. The person making the initial call to our funeral home turns out not to be the one with the legal responsibilities of making decisions related to the care of a loved one.

While they may feel that they should be the one to make these choices, the law doesn’t recognize them as such – and so their voice can become effectively silenced.

If the deceased has not expressed their wishes through a written document such as a Durable Power of Attorney for Health Care, or a Last Will and Testament, where the deceased has designated an agent to fulfill their wishes; then the chain of command, formally called the “order of precedence”, is commonly as follows:

New Jersey, as well as other states, has what is called the Right to Control Law (N.J.SA. 45:27-22).  The law, absent what is called a "funeral agent designation" in a Will, outlines a next-of-kin hierarchy depicting who has the right to control the funeral and disposition of a deceased person.  The person with the right to control is not necessarily the executor of the Will.

Unless a court of competent jurisdiction has given other directions, the right to control hierarchy is as follows:

• Funeral Agent
• Legal spouse, NJ registered domestic or civil union partner*
• Majority of surviving children over the age of 18
• Surviving parent(s) of decedent
• Majority of surviving siblings over the age of 18
• Other relatives according to the degree of relationship
• If there are no known living relatives as outlined above, the funeral director may accept the written authorization of the other interested parties (i.e., friend, neighbor, colleague)

*New Jersey's Civil Union Law took effect on February 19, 2007.  The law mandates that civil union couples must receive the same benefits and protections and be subject to the same responsibilities as spouses in a marriage, whether they derive from statute, administrative or court rules, public policy, common law, or any other source of law.  Therefore, the New Jersey Civil Union Law extends the right to control disposition to civil union partners in exactly the same way as it extends this right to spouses.  

The person designated as the responsible party, whoever they may be, needs to be present to make decisions, and sign documents. If you are unclear as to who is the responsible person in planning a funeral for your loved one, call us.
 

The Critical Importance of Designating a Representative

If your loved one has yet to specify who they wish to be in control of their funeral service planning, and they are clear-headed enough to do so, now is the perfect time to take care of that task.

This is especially important if they think their relatives will not honor their funeral wishes, or if they are on bad terms with them; do not know where they are, or do not have any relatives living.  

And, you might mention that appointing a specific person to arrange their funeral who is not a family member, but is deeply trusted, is a good way to ensure that their final wishes are carried out.

They can designate their choice by completing an Advance Health Care Directive, or the easy-to-read 5 Wishes guide from Aging with Dignity. Should you have questions about doing so, call us, or speak with your family attorney.