22.9We propose that the new statute should enable a person to appoint someone as their “deceased’s representative”. The appointed deceased’s representative should have the right to make the decisions about funeral arrangements, disposal of the body and how any remains should be dealt with and should be under a duty to dispose of the body. In the case of the deceased also having a will and thus an executor, the deceased’s representative will have the right to make these decisions, while the executor will be responsible for decisions about property.
22.10Unlike the executor, the deceased’s representative will be the decision-maker of first resort, and their role will be engaged immediately at the time of death. The authority of the representative would depend upon written proof of the appointment in the appropriate form.
22.12Another advantage of the creation of this role is that it enables a person to ensure that burial decisions after their death are made according to the principles of tikanga. While we have concluded that it is not possible to require as a matter of law that decisions must be made in accordance with tikanga, under this proposal, a person could appoint a kaumātua as their deceased’s representative, knowing that the person will enable a tikanga-based decision-making process.
22.16In the interests of certainty, we think that the statute should require the appointment of the deceased’s representative to be undertaken in writing and with the consent of the selected representative. We have considered whether further formalities should be required, such as a witness signature. On balance, we have decided that, as the associated risks are relatively low given that this role does not concern money and property, the process and requirements for appointing a representative should be kept as straightforward as possible. The signature of the deceased and the chosen representative should be sufficient.
22.17It would be prudent for the deceased’s representative to retain a copy of the appointment, and duplicates can be lodged with a family solicitor or other person if desired. While an appointment could be made within a person’s will (provided the representative also signed their consent in that document), in either case, the deceased’s representative should retain a copy so that they can demonstrate authority to begin making burial arrangements immediately following the death.
22.18The deceased’s representative’s role would formally commence following the death of the appointer, though there would be nothing to stop that person from making preliminary preparations to exercise the role, as appropriate, if the appointer’s death is imminent.
22.19Upon death, the onus is on the deceased’s representative to come forward with the form of appointment that authorises them to act. In most cases, it will be obvious to the family and any other interested people who the deceased’s representative is and that they will be involved from the beginning in making the funeral and burial arrangements.
22.20In a small number of cases, the deceased’s representative may not be available immediately, and others may have already begun to make decisions. The deceased’s representative should be required to make their position known to those who are involved in making the arrangements as soon as reasonably practicable. If the deceased considers that there is a risk that their representative might be unavailable to make decisions at the crucial time, perhaps because they will be overseas, the deceased could also appoint a substitute deceased’s representative in the same way.
22.21If a deceased’s representative in unavailable or unknown to the family or executor, they should be able to proceed with the arrangements. In other words, in order to exercise the rights attached to the role, the deceased’s representative must act with a reasonable degree of speed. The onus is on the representative to ensure that they make themselves known and fulfil the decision-making role. If the representative does not fulfil that role, the executor (if there is a will) or members of the family (as we discuss below) may make these decisions. However, if there is no-one able and willing to act, the deceased’s representative remains liable for the duty to dispose of the body.
22.22A person appointed as a deceased’s representative should be able to reject the role if they are no longer willing or able to fill it. However, that must be done in advance of the death of the appointer. Because of the personal nature of the role of representative, the appointer is likely to have chosen someone they trust to fulfil the role and on the basis of their personal qualities and relationship. If the representative is no longer willing to act, they should notify the appointer and revoke the form of appointment. In doing so, the deceased’s representative would thus give up all rights and duties associated with the role. The appointer would also be able to revoke an appointment at any time.
22.23We recommend that the following rights and duties should attach to the deceased’s representative:
22.24A deceased’s representative would have the right to make the decisions as to the funeral arrangements, burial or cremation and other incidental arrangements. This confers on them an ability to make the decision as to burial or cremation, and the location of burial if applicable, and to do so in priority to any other person and without being inhibited from exercising that right.
22.25This right must be exercised having regard to the valid interests of others in accordance with the factors we propose will be set out in statute (discussed below in Chapter 23).
22.26A deceased’s representative should be under a legal duty to dispose of the body. This is currently one of the duties of the executor and reflects the public interest in treating deceased bodies with respect and disposing of them within a reasonable period of time. To be clear, “disposing of the body” should mean burying or cremating the body or such similar method of permanently dealing with the body so that it does not become a nuisance. It does not extend to dealing with the remains after cremation.
22.29The purpose of a custodial right is to give the deceased’s representative (or indeed the executor if there is no deceased’s representative) the ability to exercise his or her right of decision. There may be times when the decision is at risk of being pre-empted by the actions of another who may take the body away to prevent the deceased’s representative from making the arrangements that he or she is lawfully entitled to make. If that is the case, a deceased’s representative can insist on his or her legal right to custody of the body and can seek urgent court orders to enforce custodial rights. In Chapter 24, we suggest that the court should have the power to issue a warrant, under urgency, for Police to take custody of a body. The Police could then return the body to the custody of the deceased’s representative (or executor) or to a location chosen by him or her (such as a funeral home).
22.32Because not everyone will appoint a deceased’s representative, we will consider what happens when there is no deceased’s representative.
Recommendations
