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Who has Authority?
It is quite often asked, "Can I authorize my own cremation?" In Canada, the answer is no. In certain U.S. states, legislation has been introduced allowing people to authorize their own cremations. Once you die, your body becomes the property of your estate. The executor, next-of-kin or legally authorized person then has the authority to choose the type of funeral service that they desire for you, if not otherwise specified. This includes cremation. If this is a source of concern, take comfort in the fact that very few people change the wishes of those who take the time to record the type of funeral services they would like, such as in a Will or Preplanning Agreement.
In most cases, the immediate next-of-kin has the authority to authorize cremation. Legally, the following qualify as next-of-kin and are listed according to priority:
- The spouse of the deceased
- The child or children of the deceased
- The parent(s) or legal guardian(s) of the deceased
- Siblings of the deceased
In the absence of any of these individuals, the person who would have the legal authority to authorize cremation would have to be determined, but would usually be some other relative.
In a case where the deceased left specific instructions, such as Will, the executor of that Will would have the legal authority and obligation to carry out the directions as specified. The executor would have ultimate authority, even if there were surviving next-of-kin. In cases like these, the funeral director may ask for a copy of the portion of the deceased's Will that names the executor and verifies the documnt has been fully executed.
Without an up-to-date Will or other binding documents, the line of authority may not be clear. For example, consider the death of an individual who has been separated from his wife and living with another woman for many years but has never legally divorced. The question arises as to whether the estranged wife had the authority to authorize his cremation. Add to this the emotions of the surviving children and siblings, and the determination of legal authority is not an easy task. In cases like these, the advice of a lawyer is often sought.
If cremation is your final wish, or you have consented to act as executor for someone who has specified cremation, take time to learn more about what is involved along with legal responsibilities.
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