Contents

Chapter 22
Who makes the decisions?

Other issues for decision-makers

Enforcement of the duties to dispose of the body

22.53We have described above that the executor, deceased’s representative and family members should all have a duty under the statute to dispose of the body. Any proposal to impose a duty raises the question of how that duty should be enforced if or when it is breached.

22.54Currently, the Burial and Cremation Act 1964 establishes an offence if any person “who has charge of a body” does not dispose of it within a reasonable time. In Chapter 15, we proposed that this should be amended to make it clearer who is liable for this offence. We recommend that it should fall on a person who has a duty to dispose of the body—that is, the executor, deceased’s representative or family member. We also recommend that the timeframe should be amended to be “without undue delay, taking into account the mourning needs of the bereaved and any ceremonies to be performed”.

22.55There is also an offence in the Crimes Act 1961 carrying a maximum term of imprisonment that could be used to enforce the duty to dispose of the body.458 However, that offence tends to be prosecuted only for the most egregious behaviour.

22.56Of course, there is some difficulty in thinking about the imposition of an offence in relation to people who have voluntarily taken on a role in recognition of their relationship with the deceased person. There may be many valid reasons why an appointed decision-maker or family member cannot fulfil this duty. For this reason, the offence provision provides a full defence if the person has a reasonable excuse.

22.57In practice, there is considerable value in the law clearly establishing a duty on a range of people. This is particularly valuable in relation to family if the deceased person has not appointed a decision-maker. We have been told that Police sometimes have to go to considerable effort to find someone to step in and take responsibility for family members who have perhaps become estranged in the later years of their lives. In those circumstances, the statutory duty will send a clear message to family that, despite any estrangement, if there are no appointed decision-makers, society expects that family should take on this responsibility. This is particularly important in respect of responsibility for the costs of the funeral and disposal of the body.

A power of others to act in the absence of family Top

22.58There may be times when no family member is available to carry out their duty but a third party who is not a member of the deceased’s family steps forward and is willing to carry out that duty, such as friends or neighbours or staff at a retirement home. We have come across examples of this during our review. It also sometimes happens that a body is unclaimed and lies in a funeral home or with the coroner until eventually it is buried or, more often, cremated.459

22.59The ability of persons other than family, the executor or the deceased’s representative to make the funeral arrangements serves the public interest and should be possible under law. To cover cases of unclaimed bodies, we recommend that the statute confers a power on a person who is not a member of the deceased’s family but who is willing and able to carry out funeral arrangements and dispose of the body in circumstances when no other person is available to do so.

Recommendation

R110 The statute should provide that any person has the power to make decisions about funeral arrangements, disposal of the body or how remains of the body should be dealt with if there is no executor, deceased’s representative or family member who is doing so.

A residual duty on the local authority in the absence of any other person carrying out the duty to dispose of a bodyTop

22.60We also think there remains a need for a residual duty to lie on the relevant local authority to ensure that the body of a deceased person is buried or cremated where no other person is available to fulfil that duty. Section 86 of the Health Act 1956 currently provides for this. It sets out “duties of local authorities as to burials” and imposes a residual duty on a local authority to bury any dead body that is “in such a state as to be dangerous to health”. Section 49 of the Burial and Cremation Act provides a similar duty. We propose a new burial and cremation statute should continue to provide such a duty because local authorities are best placed to undertake disposal of bodies through council cemeteries and crematoria.

Funeral service providers’ reliance on instructionsTop

22.61Some funeral directors have told us that one of the advantages for them of the executor rule is that they know they can rely on the instructions of the executor if there appears to be a dispute within the family. While the proposed burial decision framework provides for a greater number of potential decision-makers, to better reflect the way that these decisions are made in practice, it must also provide some protection for funeral service providers in the event of a dispute within the family as to who may make the decisions.

22.62We consider that the statute should provide that funeral service providers are not liable for any deficiency in the authority of the person with whom they are contracting for the provision of funeral services if they have no reason to consider that there is a deficiency in that authority. This means that, if the spouse or adult children of the deceased person give a funeral director instructions, the funeral director may rely on those instructions unless he or she has reason to believe that a different person has been appointed as the deceased’s representative or that there are other family members actively challenging the instructions.

22.63We do not think that the law should require a funeral director to undertake inquiries as to the extent of the authority of the person instructing them. That would be too onerous. Interestingly, we have been told of one case where the funeral director received instructions from the neighbour of a Māori man who had been estranged from his family for some time. Before acting on the instructions, the funeral director undertook his own inquiries and identified siblings of the man who lived in a different region and who, despite the estrangement, wished to take responsibility for the body and dispose of it in accordance with tikanga. While this was a good outcome in the circumstances, we think it is too onerous to impose a duty to undertake inquiries when usually the instructing person will have adequate authority.

22.64If a funeral director is aware of a challenge to the authority of the person providing instructions or the substance of those instructions, the funeral director should not act further on those instructions until the matter is resolved. We expect that such disputes will be very rare. However, we acknowledge that, when they occur, funeral directors can find themselves in a difficult position. They may have custody of a body without certainty as to what should happen or who will pay their expenses. However, these situations arise now, and we do not think these proposals will place funeral directors in a worse position than currently.

Recommendation

R111 The statute should provide that funeral service providers should not be liable for any deficiency in the authority of the person with whom they are contracting for the provision of funeral services if they have no reason to consider that there is a deficiency in that authority.

Responsibility for costsTop

22.65One of the advantages of the executor rule was that the same person made the decisions about the funeral and disposal of the body as administered the estate so was easily able to pay the costs incurred by those decisions. Of course, in practice, usually the family make the funeral and disposal arrangements and recoup the costs from the estate.

22.66By proposing that the law recognises a greater range of potential decision-makers, it has been suggested that tension may arise over payment of costs where the decision-maker is not the executor. We acknowledge this possibility but consider that this tension already exists when a family member who is not the executor makes the decisions. Also, problems can arise now even when the decision-maker consults the executor because the executor is unlikely to have a strong understanding of the deceased’s financial position immediately after death when funeral arrangements are being made.

22.67Nonetheless, it is important that the law clearly sets out expectations about the payment of costs. We consider the following:

Recommendations

R112 The statute should provide that the estate of the deceased person should be liable for the reasonable costs of funeral arrangements and disposal of the body. What is “reasonable” should depend upon the size of the estate left by the deceased and the deceased’s position and circumstances in life.

R113 Decision-makers should be liable for any costs incurred by them in relation to funeral arrangements and disposal of the body to the extent that the costs are not reasonable or cannot be covered by the estate.

Coronial investigationsTop

22.68The Coroners Act provides for a coroner to investigate sudden, suspicious or violent deaths or some other deaths that are not due to natural causes. Because that Act is also dealing with deceased bodies in the period immediately after death, it is clear that any rights of executors or deceased’s representatives in relation to the body of a deceased person must be subject to the specific rights under that Act. Specifically, the executor or deceased’s representative’s right to custody of the body must be subject to the coroner’s right to custody for the purposes of that Act. Also, the coroner’s right to decide that a post-mortem is required may have implications for funeral arrangements, although we note that any family member can object to that decision.463
22.69However, we have been told that there is occasionally doubt as to whom the coroner should return the body after a post-mortem has been completed. This could be problematic where there is likely to be a dispute within a family about funeral arrangements or disposal of the body. There has been no judicial consideration of this issue in New Zealand to our knowledge, although there has been overseas.464

22.70We consider that coronial practice should reflect our proposals above to expand legal recognition of the people authorised to make decisions about funeral arrangements and disposal of the body, that is, if it is known that the deceased person appointed decision-makers, the body should be returned to the custody of that person (the executor, unless a deceased’s representative was also appointed). If decision-makers were not appointed, the body should be returned to the family or other person who is making the funeral and disposal decisions. This can be achieved by a practice note and education for coroners rather than via statutory amendment.

Organ donation Top

22.71The Human Tissue Act (HTA) contains some similar concepts to our proposals. That Act governs the collection and use of human tissue. This is particularly relevant to collection and use after death, for example, for organ transplantation. Under that Act, a person can appoint a representative to consent or object to the donation of their organs or the collection of tissue for a range of purposes when they die.465 The representative does not have any recognised custodial right to the person’s body. When no representative is appointed, there is a mechanism for determining who is entitled to consent or object. That mechanism depends on concepts of “next of kin” and “immediate family”.

22.72For the most part, we see no conflict between the HTA and our proposals. A person may appoint the same person to both roles or different people. There is a very small theoretical possibility that a decision-maker under our proposals could undermine the ability of a representative under the HTA to consent to the collection and use of tissue by asserting their right to custody of the body. In practice, this is unlikely to occur because decisions about organ donation are addressed when the person is on life support systems prior to the determination of death. However, the risk could be covered by a statutory provision asserting that funeral and disposal decisions are subject to decisions made under the HTA.

458 Crimes Act, s 150A: “Every one is liable to imprisonment for a term not exceeding 2 years who—(a) neglects to perform any duty imposed on him or her by law or undertaken by him or her with reference to the burial or cremation of any dead human body or human remains”.
459 Michael Fox “Auckland’s dead and forgotten” (15 March 2012) Stuff <www.stuff.co.nz>.
460Rees v Hughes [1946] KB 517; [1946] 2 All ER 47.
461We further discuss this and other factors decision-makers must consider in Chapter 23.
462Rees v Hughes, above n 460, at 528 per Tucker LJ. See also Re Clarke (Deceased) [1965] NZLR 182 (SC). In Loasby, above n 420, Cooper J held that the costs of a tangi held for a high-ranking Māori chief were not excessive, having regard to the rank and influence of the chief and should be met by the estate.
463Coroners Act, s 33(2).
464 See Haqq v Coroner for Inner West London [2003] EWHC 3366.
465 Section 19.