Chapter 22
Who makes the decisions?

Concluding comments

22.73The framework of decision-making that we have proposed is intended to retain the certainty of the existing common law while providing a new and flexible option for people to express their wishes.

22.74In doing so, we have given thought to whether our proposal for a new role of deceased’s representative is likely to make people more inclined to disagree on burial arrangements for a deceased. Some have suggested that, if people are provided with a mechanism to express their burial wishes, clashes with family members will inevitably result. If someone wants to use a deceased’s representative to override their family’s wishes, the result may be that the family will be more insistent on their views and more inclined to resist and challenge the representative’s proposed course of action.

22.75To this we would state that the proposal for a deceased’s representative is not intended to serve solely as a dispute resolution mechanism. It may be particularly advantageous for those who have close relationships not following usual “family” lines or for those who want to move away from family traditions that would otherwise apply, but it should not be seen as limited to those instances. It will benefit those who want certainty and who want to exercise some control over their burial arrangements. It reflects a common human interest in what happens to dead bodies and forms part of a wider trend towards demystifying death and encouraging advance care planning and end-of-life decision-making.

22.76We do not think that the deceased’s representative proposal will make burial disputes more likely. The goal should be to address the causes of disagreements rather than to retain law that does not provide a level of choice that is expected in contemporary society.

22.77It cannot be said with certainty that the deceased’s representative mechanism will resolve all disagreements before they arise. Often, disagreement over burial matters reflects underlying family tensions that will arise at the point of death no matter what. However, if a deceased’s representative has been appointed, this will provide a pathway for ensuring that decisions are more likely to be adhered to.