22.1The current law, as affirmed by the Supreme Court in Takamore v Clarke, is that the executor makes the decisions after death in respect to the body. We consider that the law could be improved in three key ways. First, it should be possible for a person to appoint someone to make the arrangements for their body and their funeral after death, leaving property arrangements to be dealt with by the executor. We refer to this role as the “deceased’s representative”. If the deceased has a will and has not appointed a representative, the executor will make these decisions. However, if the deceased has appointed a representative, whether or not they have a will, the representative will make the decisions. The role of the deceased’s representative will provide a new choice for people who wish to provide explicit direction about their funeral arrangements. In the event that the deceased has appointed a deceased’s representative, that person will take priority over others, including the executor, in making decisions after death about funeral arrangements, disposal of the body and how to deal with any remains.
22.2Our second change is to provide that, when there is neither a representative nor an executor, decisions should be made by members of the family, but there should be no legislated hierarchy of decision-making. Instead, the law should provide that a funeral service provider is able to act upon the instructions of any member of the family in the absence of knowledge of a challenge to those instructions from another family member.
22.3Our third change, outlined in the next chapter, is to provide for factors that the decision-maker must take into account. These will include the deceased’s wishes (a paramount consideration), the views of the family and tikanga Māori or other cultural factors personal to the deceased.