Who Makes Funeral Decisions When You Die?


Hi there. Bridget Mackay here with the Law Offices of Bridget Mackay in Petaluma, we do estate planning and elder law.

And, today I want to talk about sort of a sad subject and that is, who has the right to make funeral decisions for you? If you’re smart and you plan oftentimes you’ve made those choices and either a last will and testament or a health care directive here in California. And, you’ve designated a person who could make choices about where you’re buried, whether you’re cremated. Where your funeral is going to be, how it’s going to go down. Maybe you’ve made extra notes with that person. So, hopefully you’ve done that.

If You haven’t, that could be a real problem because those issues come up when someone dies. You know, things like, did this person want to be buried or did they want to be cremated? What kind of ceremony did they want to have? Was it religious, a full religious funeral in whatever denomination they belong to? Or, was it just a memorial that they were after or spreading of ashes.

So, when those decisions come up around a very traumatic time frame, it can be a real mess. Particularly if families aren’t getting along. And, if you haven’t designated someone, then the law will provide, and it will be your next of kin who legally make those decisions. Who is your next of kin? Now, remember half siblings, step siblings, those relationships are often treated as full relationships, full blood relationships under the law. But, I’m going to look at a list to tell you what the next of kin priority is and that’s what the law will look at.

So, if you’re married, your first person to make those decisions would be your spouse. If your spouse is incapacitated or your domestic partner. And if that person is incapacitated or no longer with us then it would be your children. And from there it would be your parents. After that it’s your siblings. After your siblings would be an authorized guardian. So, the legal guardian of someone or conservator. Then after that it’s grandchildren. Then it drops to great grandchildren, nieces, nephews, grand nieces, grand nephews, aunts, uncles, first cousins, you get the idea.

So, there’s a whole hierarchy of priority of who can make these decisions on your behalf. And, oftentimes that can run into problems. So, if you the next in your hierarchy is your children, but your children don’t get along, that could cause a lot of stress and strife for your family.

So, with that knowledge what is the best way to prevent your family entering into court just to decide what’s going to happen to your remains and what kind of ceremony is going to take place is for you yourself to prepare an estate plan which would include a will and a durable power or a durable power of attorney and a healthcare directive. In that health care directive, they can determine where your remains are going to be disposed of, how they’re going to be disposed of. And, you can write in privately to that person, what kind of ceremony you want to have. What kind of music you want played at it. All of your intentions about that final goodbye that your family will pay to you.

So, if you have not prepared that for yourself please contact an experienced estate planning attorney and get that stuff written down.

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