Who Makes Funeral or Cremation Planning Decisions When You Can’t?

By: Erie County Cremation Service
Tuesday, October 10, 2017

When it comes to handling your funeral or cremation planning, the best way to ensure that your wishes are respected is to pre-plan while you’re still alive. Following death, things can become much more complicated.

Fortunately, in New York State, your rights are protected under section 4201 of the Public Health Law. It’s extremely easy for you to name the person you’d like to handle your affairs. The Appointment of Agent to Control Disposition of Remains form lets you specify an agent who you’d like to make decisions about your remains or cremated remains, as well as two successors in case something happens to your first choice. It’s pretty straightforward and can be completed at home. Once you’ve chosen your agent, you can be confident knowing that the responsibility will fall to someone you trust.

If you don’t specify an agent, the law attempts to use a hierarchy that runs through a list of family members that should have your best interests in mind. While well-intentioned, each family is unique. For whatever reason, there could be family members that you don’t want to be involved. If you’d like to keep them out of the picture, then it’s important to be explicit in who you’d like handling your remains or cremated remains.

While the duty falls to your spouse if not otherwise specified, things can get complicated if they are incapacitated and unable to decide for you. If there’s a tragedy and both you and your spouse are killed, then it’s good to have a plan. There are many benefits to planning ahead.

We’ve included an excerpt from the Public Health Law below that lists who can make decisions on your behalf. Think about the relatives that fall under each category and whether or not you’d like them making decisions about your funeral or cremation:

  1. The person designated in a written instrument executed pursuant to the provisions of this section;

  2. The decedent's surviving spouse;

    1. (ii-a) The decedent's surviving domestic partner;

  3. Any of the decedent's surviving children eighteen years of age or older;

  4. Either of the decedent's surviving parents;

  5. Any of the decedent's surviving siblings eighteen years of age or older;

  6. A guardian appointed pursuant to article seventeen or seventeen-A of the surrogate's court procedure act or article eighty-one of the mental hygiene law;

  7. Any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the estates, powers and trusts law, with the person closest in relationship having the highest priority;

  8. A duly appointed fiduciary of the estate of the decedent;

  9. A close friend or relative who is reasonably familiar with the decedent's wishes, including the decedent's religious or moral beliefs, when no one higher on this list is reasonably available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section; or

  10. A chief fiscal officer of a county or a public administrator appointed pursuant to article twelve or thirteen of the surrogate's court procedure act, or any other person acting on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section.

The law makes it clear: you can decide who’s responsible for making decisions on your behalf, but you MUST specify it in writing.

If you need help with pre-planning or completing any of the Appointment of Agent to Control Disposition of Remains, we can help. Contact us to set up an appointment. When the time comes, we want the process of making your final arrangements to be stress-free for you and your family.


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