Contents

Chapter 23
Factors to be taken into account

The views of the family

23.15As we described above, it is important for the grieving process for families to have a central role in post-death decisions even if the deceased person has appointed a decision-maker. We described a role for family members as decision-makers in Chapter 22. Here, we analyse whether and how the views of family members other than the decision-maker should be taken into consideration.

23.16We have particularly considered whether there is a special role for the views of the spouse of the deceased person.473 A number of submissions on Issues Paper 34 identified the spouse as culturally significant for many New Zealanders. The question is how best to reflect that within the law. In practice, the spouse and children will be the most likely people to make the funeral arrangements, and other family members will defer to the strength of their connection. The spouse or adult children are also likely to have the best understanding of the deceased’s wishes and the dynamics of the wider family group.
23.17When the decisions are made by the deceased’s representative, executor or family member, we propose that there should be a statutory obligation to take account of the views of the family and to give preference to the views of those closest to the deceased.474 This will usually be the spouse and adult children of the deceased. The statute should require the decision-maker to give particular weight to their views unless there is a reason to prefer the views of other family members in the circumstances. Of course, when there is disagreement between family members (for example, between adult children from an earlier relationship and the surviving spouse), the decision framework described above will govern how the decision is made.

23.18This applies to all decision-makers such that, if a particular family member assumes responsibility for the funeral arrangements, that person should be required to take account of the preferences of other family members who also wish to be involved in making decisions (with relative weight depending on the strength of the relationship).

23.19We have considered whether a representative should be under an active obligation to seek out family members’ views in order to take them into account or under a passive obligation to consider views that are expressed to him or her. While it seems reasonable to require a representative to get as many views as possible prior to exercising the decision, on the other hand, that can be an onerous time-consuming responsibility, and in any event, family members can be expected to come forward with their views on the matter. The major concern with an active duty to seek out family members’ views is delay.

23.20We consider a middle ground is possible. The deceased’s representative should be under a duty to seek out the views of family members to the extent that he or she judges to be reasonably practicable in the time available. Particular priority should be given to obtaining the views of any spouse.

23.21If the deceased’s representative is a family member of the deceased, he or she is entitled to take his or her own wishes into account as well as those of the wider family but must do so within his or her capacity as an appointee who is exercising specific statutory rights and duties. We recommend below that guidance be made available to people acting in this role, and it could address how to balance one’s personal interests against the demands of the role.

Recommendation

R116 A person making decisions relating to funeral arrangements, disposal of the body or how any remains should be dealt with must take account of any views of the family. In particular, that person must seek out the views of family members to the extent that he or she considers is practicable in the time available, giving particular priority to obtaining the view of any spouse. That person must give preference to the views of those people closest to the deceased person, particularly any spouse.

473 We intend the term “spouse” to include de facto and civil union partners.
474“Family” should be broadly defined as we have described in Chapter 22.