22.34The appointment of a deceased’s representative and an executor are both voluntary. There will therefore be some cases where no-one has been appointed in a decision-making role, and the statute will need to provide a default mechanism for decisions to be made in these cases. We consider that, in such cases, decisions should be made by the family of the deceased. In practice, families make decisions in different ways depending on the relationship dynamics within the family, cultural background and pragmatic considerations such as who is most able to begin funeral arrangements. For example, in many families, the surviving spouse and adult children will have the primary role. For other families, including Māori, the decision is made collectively by a larger group. In some families, the deceased will have made their wishes known to the family before death (for example, by pre-purchasing a plot at a preferred cemetery), and the family will proceed to carry these out in a straightforward manner.
22.35The challenge in this review is to frame the statutory obligation to make decisions after death in a way that recognises the variety of ways New Zealand families are arranged and the variety of cultural expectations. We seek to create a reform that provides legal clarity without imposing a “one-size-fits-all” approach. Our proposal is to create a non-exclusive duty applicable to all relevant members of the family. This reflects the current practice whereby usually a particular person or a group of people will have primary responsibility for making arrangements after death. As discussed in the next chapter, decision-makers from within the family will be required to take account of certain matters, including the wishes of the deceased and the views of other family members as well as cultural factors including tikanga Māori. This means that the decision of family members, like the decision of representatives appointed by the deceased, is not unfettered. We expect that the non-exclusive duty provides the closest possible statutory reflection of how things currently operate in practice across New Zealand’s diverse family types.
22.36For completeness, we discuss two other options we considered by ultimately rejected. These are:
22.37These options reflect the different ways in which families make decisions. They also reflect the range of options that existing statutes use in relation to family decision-making. After exploring these options below, we then set out our preferred option (non-exclusive duty on all family members) in greater detail.
22.43Under tikanga Māori, the decisions to be made after death are considered a matter for whānau and hapū rather than one particular person. The decisions are made collectively with a strong focus on consensus. There may be competing claims by different hapū with which the deceased was affiliated. The decision as to where the tūpāpaku should be buried provides an opportunity to strengthen ties of whakapapa, and the process of making a decision allows different claims to be considered.
[A]bhorrent, not only to the principle of whakapapa, but to the universal need for surviving whānau members to find peace.
Concepts and processes such as relationships, family, decision-making and authority are culturally imbued and meanings can differ significantly across individuals, familial groups and cultures. As such the compilation or proposed reliance upon a pre-determined hierarchy of individuals is extremely problematic … it is appropriate such matters are considered on a case-by-case basis.
22.46We considered whether the statute should provide for the family of the deceased person, as a family unit, to have a collective decision-making duty. This would be the option that most closely reflects tikanga Māori. However, we are of the view that it would be too onerous for families from other cultural backgrounds to be required to make decisions in this manner.
22.47We consider that there is an alternative under which the statute provides a role for family decision-making with neither a hierarchy nor an obligation for the decision to be made collectively and by consensus. Under this approach, no family member would have priority rights, but all members of a deceased’s family would have a power to act either on their own or by consensus with other family members. The statute would set down some minimum requirements as to how the power should be exercised.
22.48We propose that every family member of a deceased person should individually have all powers necessary to make decisions about funeral arrangements, disposal of the body or how to deal with any remains and should have a duty to dispose of the body of the deceased person in the following circumstances:
22.50We suggest that a broad definition of family that is inclusive of the range of family relationships is appropriate. A broad definition also leaves space for a conception of family that aligns with Māori thinking.
22.51The definition should encompass a biological, legal or psychological relationship, and it must also acknowledge a culturally recognised family group. This is consistent with the approach taken by existing statutes, including the Children, Young Persons and Their Families Act 1989 and the Human Tissues Act 2008. We suggest that burials legislation adopt a similar approach and define “family member” in such a way as to include:
22.52With reference to tikanga, the effect of this proposed framework will be that, if a Māori person wishes that decisions after their death be made according to tikanga, that person may appoint a deceased’s representative that they trust to ensure decisions are made in that way. Alternatively, they may express their wishes in writing. However, if they do neither of these things, decisions will be made by their family (which is broadly defined) with tikanga being one relevant factor and with particular significance being given to the views of any spouse. We acknowledge that this framework does not expressly recognise burial decisions based on tikanga in the sense that those principles should operate independently of any individual’s expressed desire. We have instead created a space for an individual to express their wish that decisions be made in accordance with tikanga. We consider that, while this proposal may not satisfy everyone, it is a workable accommodation between legal certainty, individual autonomy and the ongoing role of tikanga in burial decisions.