Cremation: Authorization and Informed Consent
In Canada and most U.S. states an individual is not permitted to authorize their own cremation. The legal right to do so rests with their next-of-kin, or if they have completed a Will, their Executor or legal representative.
Although this appears to be straight forward, complications can arise. When someone signs the cremation authorization form, the funeral/cremation provider must verify the person’s identity and his or her authority to authorize the cremation.
Generally, when funeral/cremation providers are dealing with someone they do not know, they should obtain confirmation of identity. A photo ID, such as a driver’s license or passport should be requested. If a person indicates he or she is the executor, the funeral/cremation provider should also request a copy of the first and last pages of the deceased’s Last Will and Testament. This will verify the name of the executor and that the Will has been duly executed.
As previously noted, without an up-to-date Will the immediate next-of-kin will assume responsibility. Legally the next-of-kin who qualify are listed according to priority. The first level is the spouse, followed by an adult child or children of the deceased, then parents, siblings, etc. When authorization rests with the deceased’s adult children conflict can occur if one or more of them do not agree with the wishes of the other siblings.
Legally, regardless of who is the oldest, each adult child has equal status. When dealing with multiple members of the same class, the funeral/cremation provider must get permission from all members of that class. In the case of the adult children, this would require their signatures on the authorization form or a faxed copy. If a signature cannot be obtained, a verbal authorization is acceptable.
It is not always as straight forward as it appears. Common law arrangements, same sex partnerships, legal separations, multiple marriages and family estrangements can create a legal mess. At any time, when faced with an unfamiliar situation or circumstance causing doubt or uncertainty, the funeral/cremation provider should always seek legal advice prior to commencing cremation.
Cremations performed without proper authorization or on the basis of misrepresentations made by the authorizing party may result in serious legal problems for the funeral home and crematory.
A funeral home and crematory’s responsibility does not end with the signing of the cremation authorization form. The signature on this document does not ensure the authorizing party understands all that will take place and that the requirements for informed consent have been fulfilled.
A legal definition of informed consent, depending on the context in which it is being used, can be very complex. In general terms, informed consent is an agreement to do something or allow something to happen only after all the relevant facts are known. In contracts, an agreement may be reached if there has been full disclosure by both parties of everything each party knows which is significant to the agreement.
Although consent laws vary from province to province, the standard of care requires that funeral/cremation providers openly discuss and explain their services to the authorizing party prior to providing them. Furthermore, it is equally important for the authorizing party to fully comprehend the services they are authorizing and/or purchasing.
Funeral/cremation providers should, therefore, review the contents of the Authorization Form in detail, explain the step-by-step procedures and describe what the authorizing party should expect to receive at the end of the cremation process. But, does the cremation authorization form contain the information the authorizing party needs in order to provide true consent?
Issues and items that have been overlooked or assumed by one or both parties have a tendency to become critical, especially during litigation. To avoid claims of wrong doing or doubt, no part of cremation should be left to chance, assumption or someone’s imagination.
The following are some key elements of cremation that funeral/cremation providers may want to disclose to authorizing parties before performing a cremation. These items may be included on the authorization form or on separate forms which should then be attached to the authorization form and treated as one document:
- The funeral home is not performing the cremation rather it is contracting it out to an independently owned crematory (3rd party). The name and address of the crematory should also be included.
- The funeral home or their representatives will not be present to oversee the entire cremation process.
- The crematory is authorized to release the cremated remains to the funeral home. Otherwise, note the name, relationship and address of any other designated party authorized to receive the cremated remains.
- Any special handling requirements or scheduling restrictions (i.e. type of casket, size of the deceased, immediate release, use of more than one urn, etc.).
- Instructions for disposition (i.e. burial, scattering, inurnment, release to family, shipping instructions, name of cemetery, time and date of committal service, etc). A separate form is often used.
- Minimum container requirements accepted by the crematory. For example, the container should be rigid, closed, leak resistant and combustible.
- Acknowledgement as to the presence or absence of implants, radioactive devices, or prosthesis on or in the body and authorization, if applicable, for their removal and disposition by the funeral home or crematory.
- Acknowledgement as to whether the deceased died of an infectious and/or contagious disease and, if so, record same.
- Acknowledgement as to whether the body has undergone radiation therapy within the past year. If so, authorization for radiation safety personnel from the health care system to take radiation readings of the body, monitor the cremated remains and crematory to assess radiation contamination and, if required, recommend the types of funeral procedures and services required for the protection of staff, family members and general public.
- Full written explanation of the cremation process, including information about the cremation container, the heating process, what remains after the process, reduction of the bone/skeletal particles, unintentional commingling of microscopic particles and their disposition, destruction of personal items, disposition of non-combustible items and the return of all the cremated remains.
- Description of any special custom, tradition, ritual or witnessing to accompany the cremation and to be observed by the family (i.e. committal to flame).
- How, when, where and if applicable by whom, the identity of the deceased was determined.
- Description of the type of urn selected and , if applicable, its suitability for shipment.
- Information respecting shipment of the cremated remains, including shipping date, method of shipment and applicable guidelines.
- A policy respecting the storage and/or disposition of cremated remains not claimed by the authorizing party.
- Authorization for the segregation or proportioning of the cremated remains (i.e. such as when keepsake urns are selected).
- Acknowledgement that sufficient time has been provided to ask questions and understand the authorization being given.
Full disclosure will mean different things to different people. It will also depend on one’s own personal experiences. Although some of the disclosures may seem graphic and/or unnecessary, risk reduction cannot be practiced after something goes wrong.