23.4The current legal position is that the wishes of the deceased have no binding value but may be taken into account by the decision-maker to guide their actions. This means that, if the family members disagree with the deceased’s wishes, they can be easily overridden.
23.5Our proposal to allow a person to appoint a deceased’s representative provides scope for the deceased’s wishes to be given greater effect, as they are able to choose someone they trust to make the decision. Within this framework, it now falls to us to consider whether the decision-maker should be obliged to follow the deceased’s wishes as a matter of course and the limitations on following those wishes.
23.6Contemporary understanding of the importance of personal autonomy suggests that the deceased’s wishes should strongly influence the decision and that it should be rare for them to be departed from. A person should be able to express their autonomy in making decisions about how their death should be commemorated and where their body should be buried or cremated.
[T]he weight to be attached to P’s wishes… will always be case-specific and fact-specific. In some cases, in some situations, they carry much, even on occasions, preponderant weight…the nearer to the borderline [of capacity] the more weight must in principle be attached to P’s wishes and feelings.
Best interests do not cease at the moment of death. We have an interest in how our bodies are disposed of after death, whether by burial, cremation or donation for medical research.
23.12There is clearly a greater expectation now than previously that a person ought to have a greater control than the law presently allows in how they are to be commemorated after death and how their body shall be disposed of. The present law is out of step with that expectation.
23.13We consider that, where the deceased person has expressed their wishes in writing, the statute should require the decision maker to give effect to the wishes of the deceased unless they are satisfied that there is a compelling reason not to do so. If the deceased person has expressed their wishes but not in writing, the decision maker must still take these into account but is not bound to give them effect.
23.14The intent of our recommendation is that the law should give more authority to the wishes of the deceased expressed in writing before death, whether through a will or otherwise. A person ought to have a reasonable expectation that their wishes as to what should happen on their death in respect of their funeral and the disposition of their body will be followed. Provided such directions are not unreasonable and will not impose an unreasonable cost relative to the size of the person’s estate, the executor, deceased’s representative or family member assuming responsibility for post-death decisions would be expected to carry them out.
R114 The statute should require that, where a deceased person has expressed in writing his or her wishes relating to funeral arrangements, disposal of their body or handling of their remains, the person making the decisions about those matters must give effect to those wishes unless satisfied that there is a compelling reason not to do so.
R115 Where a deceased person has expressed such wishes but not in writing, they must be taken into account by the person making the relevant decisions.