MFDA Chimes in on Funeral Rep Law

By Doug Chalgian on March 24, 2016

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The Michigan Funeral Directors Association contacted the author of this blogsite and offered a different perspective with respect to, in fact, takes exception to, the conclusions offered in my prior post regarding the anticipated funeral representative law, and specifically with the proposition that the funeral representative will have a legal obligation to follow the known wishes of the decedent. Following is a legal opinion obtained by the MFDA on this issue:

Including “funeral representative” in the definition of “fiduciary” does not support the conclusion that a funeral representative would owe a fiduciary duty to the deceased person.  In other sections of the statute, EPIC expressly provides duties that a fiduciary owes, and to whom a fiduciary owes those duties.  EPIC does not impose a fiduciary duty to a deceased person.  Specifically, MCL 700.1212 provides that “[a] fiduciary stands in a position of confidence and trust with respect to each heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary” (emphasis added).  EPIC further provides that “[a] fiduciary shall invest and manage fiduciary assets solely in the interest of the beneficiaries.”  MCL 700.1506 (emphasis added).  Finally, EPIC enumerates remedies available in the event of a breach of fiduciary duties.  However, those remedies again only contemplate “[a] violation by a fiduciary of a duty the fiduciary owes to an heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary…” MCL 700.1308.

Nothing in EPIC discusses or otherwise imposes a fiduciary duty to a deceased individual.  This proposition is further buoyed by Senate Bill 551’s language that “a funeral representative… is presumed to have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent’s body, including, but not limited to, decisions about cremation, and the right to retrieve from the funeral establishment and possess cremated remains of the decedent immediately after cremation.”  MCL 700.3206(1).

Further, Senate Bill 551 specifically enumerates the order of who has priority in determining funeral arrangements and the disposition of the body.  A funeral representative has priority over all others (except service members whose remains are disposed of in accordance with federal statute).  MCL 700. 3206(3).  Importantly, MCL 700.3206(3) does not provide that a  funeral representative is beholden to any stated requests made by the deceased.

Finally, in outlining the powers of a personal representative, which is also defined as a fiduciary, EPIC makes following the written instructions of the decedent merely permissive, not required.  “Subject to sections 3206 to 3208, before or after appointment, a person named as personal representative in a will may carry out the decedent’s written instructions relating to the decedent’s body, funeral  and burial arrangements.”  MCL 700.3701 (emphasis added).  Clearly, if being included as a fiduciary under EPIC required following such instructions, this language would be both unnecessary and conflicting with that duty.

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mm By: Doug Chalgian
Doug Chalgian

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