Contents

Chapter 22
Who makes the decisions?

The deceased’s representative

Scope of the role

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.

22.11We consider that this is the most practical mechanism by which the law can enable the wishes of the deceased person to be implemented. It may be particularly useful to a person who foresees a dispute arising after their death. While the law should state that the deceased’s representative must consider any wishes expressed in writing by the deceased,438 this proposal goes further by enabling the deceased person to appoint a trusted person to implement their wishes.  This proposal also deals pragmatically with any aspects of the deceased's wishes that are unreasonable or impractical. In such a case, a trusted representative would be likely to do their best to ensure that the spirit of the deceased’s wishes is implemented.

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.

22.13There is precedent in New Zealand law for separating the roles of dealing with property and dealing with personal matters. Under the Protection of Personal and Property Rights Act 1988, a person is able to choose to appoint one attorney in relation to their property and another attorney in relation to their care and welfare. The two attorneys are required to consult with each other regularly, but their roles are distinct.439
22.14The appointment of a deceased’s representative would effectively create a similar model for decisions to be made after death. The deceased’s executor would be responsible for their property after death, while the deceased’s representative would be responsible for their body. A person could appoint a different person to each role or the same person to both,440 for example, someone could appoint the family lawyer as an executor and appoint their spouse as a representative.
22.15The deceased’s representative should be required to consult with the executor (if one is appointed) in respect of arrangements for the funeral and disposal of the body, given that the costs of burial are usually taken from the deceased’s estate.441

Process and requirements of appointmentTop

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.

Stepping forward to make decisions after deathTop

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.

Rights and duties of the deceased’s representativeTop

22.23We recommend that the following rights and duties should attach to the deceased’s representative:

The right to make decisions

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).

The duty to dispose of the body

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.

22.27If a deceased’s representative fails to dispose of the body, they would be in breach of a legal duty and could be prosecuted under section 150(1) of the Crimes Act 1960. In addition, the deceased’s representative should be liable for the costs of burial but with a right to recover reasonable costs from the deceased’s estate.442

Custodial rights

22.28We also recommend that the deceased’s representative should have a right to the custody of the body.443 This is a right currently vested in the executor as a right of “possession”. We think the right should be retained and modernised to remove proprietary concepts that might be offensive to some. The custodial right would be subject to the right of Police and coroners to take custody of the body under the Coroners Act 2006.444

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).

Need for public educationTop

22.30Our consultation suggests that many people would support the ability to appoint a personal representative to make decisions about their body after death. Advance planning of end-of-life decisions is usually seen as beneficial for a number of reasons. For instance, having an awareness of what people expect or want to happen upon a death will put people in a better position to manage differences at an early stage.445 However, under the current law, there is a limit to how much an individual can plan what happens to their body after death. As mentioned above, an executor is usually chosen for their expertise in managing property and is not required to give effect to the deceased’s wishes about bodily disposal. The use of a deceased’s representative will enable individuals to exercise greater autonomy about burial decisions.
22.31We suggest that it will be necessary for the department administering the new legislation to undertake a public education campaign about the option of appointing a deceased’s representative. We also suggest that the Public Trust should be required to include information on its website about how to appoint a deceased’s representative and the desirability of making post-death arrangements for one’s body as well as one’s estate.446 In Chapter 18, we proposed that the department administering the new statute provide online information about consumer rights in relation to funeral services. That website could also include information on deceased’s representatives.

22.32Because not everyone will appoint a deceased’s representative, we will consider what happens when there is no deceased’s representative.

Recommendations

R105 The statute should provide that, before their death, a person may appoint a deceased’s representative.

R106 Upon the death of the appointer, a deceased’s representative should have a power to make decisions, in preference to all others including the executor, as to:
  • funeral arrangements;
  • how the body will be disposed of; and
  • how any remains of the body should be dealt with.
R107 A deceased’s representative should have a duty to dispose of the body of the appointer after death.

R108 A deceased’s representative (or the executor if there is no such representative or if the representative fails to act) should have a right to custody of the body of the appointer when he or she dies. That right can be exercised for the limited purposes of exercising the rights and duties in respect of funeral arrangements and disposal of the body. The right to custody of the body must be subject to other applicable laws, such as the right of Police to take custody of a body under the Coroners Act 2006.
438We discuss this further in Chapter 23.
439Protection of Personal and Property Rights Act 1988, s 99A(7).
440 For similar models, see the NY PBH LAW § 4201 under which a person can appoint, in writing, an agent to make decisions regarding the disposition of remains upon death. See also NH Rev Stat § 290.17 (2014). See also proposals made in England for a “Deceased Citizen’s Charter” under which a person can appoint a “funeral advocate” to procure and manage their funeral.
441We further discuss the responsibility for costs below.
442 We further discuss the responsibility for costs below.
443 At present, the executor has a transitory possessory right to the body of the deceased. It is a limited exception to the principle that there is no property in a body and exists only for the purpose of ensuring proper disposal of the body. See Williams v Williams, above n 383.
444 We further discuss coronial investigations below.
445 Kristin Smith suggests that the custom of kawe mate (“carrying the death” to neighbouring tangihanga) could be one means of including tikanga Māori in the burial process while still respecting the wishes of next of kin: Kristin Smith “Finding a place to rest: perspectives on kiri mate, kawe mate and hahunga in the context of the ‘bodysnatching’ debate” [2010] Te Kāhui Kura Māori <www.nzetc.victoria.ac.nz>. See also Anne Salmond Hui (AH & AW Reed, Wellington, 1975) at 188.
446See www.publictrust.co.nz, which includes information about enduring powers of attorney and making wills.