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Duties and Powers to Bury or Cremate

Airborne CemeteryThe loss of a loved one is a difficult and unfortunate event.  The surviving family’s tasks following death can present additional challenges.  Between coping with grief and loss, planning funeral arrangements and handling estate matters, the last thing anyone wants to deal with is uncertainty over who has the duty and power to make funeral and burial arrangements.  Or, sometimes, mortuaries do not honor the written wishes of a beloved family member.  Fortunately, Arizona law provides guidance.  Here is a summary of some of the key provisions.

Burial duties are set forth in A.R.S. § 36-831.  The duty of burying the body or providing other disposition arrangements, such as cremation, for a deceased person are assigned first to the deceased person’s surviving spouse.  If the deceased person was single, legally separated, or divorced, the responsibility shifts to the agent under a power of attorney of the decedent that was given the authority to make decisions regarding the disposition of the decedent’s remains.  The list goes on to impose the duty on the following persons in descending order: the parents (if the deceased was a minor), adult children, parent, sibling, grandchild, grandparent, “an adult who exhibited special care and concern for the dead person,” the guardian, any other person who has the authority to dispose of the body and, if none of the foregoing, “on any person or fraternal or charitable or religious organization willing to assume responsibility.”

The problem with the design of this statute is that, instead of giving priority to a person appointed to be in charge of the decedent’s remains and disposal, this duty is given to whoever is simply “first on the list.”  For example, if a deceased person stated in their will that they wanted their adult child to be in charge of the disposition of their remains and not their spouse, that direction would be ignored by A.R.S. § 36-831, instead giving this responsibility to the surviving spouse.  This can be problematic if the family strongly wanted to follow the decedent’s written wishes, or the surviving spouse does not want the responsibility of disposing of the decedent’s remains.

A.R.S. § 32-1365.01(A) permits a legally competent adult to prepare and sign a written statement directing the cremation or other legal disposition of the adult’s own remains.  The statement may be in a last will and testament or in a separate document.  If the directive is made in a separate statement, it must be signed and dated.  “The document shall be notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present when the legally competent adult signed and dated the document and that the legally competent adult appeared to be of sound mind and free from duress at the time of execution of the document.”  If a document (a will or separate direction) is signed per this section, the crematory, cemetery or funeral establishment is authorized, but not required, to follow the written direction without obtaining the approval of any other person.  The establishment is not required to follow the written direction unless the adult made financial arrangements to fulfill the directions.  A facility that follows the direction in good faith reliance upon an apparently genuine document is not subject to criminal, civil or administrative liability.

In turn, under Section 36-831.01(A), “if the person on whom the duty of burial is imposed pursuant to section 36-831 is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”

This statute also places the burden of paying for the disposition of the decedent’s body on the person who is given the responsibility for disposal.  However, according to A.R.S. § 36-831, if the appointed person is not financially capable of providing for a burial or disposition arrangements, the duty then falls to someone else who can, or a fraternal, charitable or religious organization who is willing to assume the responsibility or, ultimately, the county in which the person died.  So, if the appointed person with the duty to bury is unwilling or unable to financially assume the responsibility, another person or organization may take over this duty, which could be contrary to the written wishes of the deceased person.  In other words, the person designated by the deceased or the person appointed by statute cannot be forced to make the arrangements.  Indeed, any family member listed in subsection A of A.R.S. § 36-831 may waive their rights to make decisions relating to disposition of the deceased’s body.

According to A.R.S. § 36-831.01, the individual responsible for the disposition of the decedent’s remains shall comply with the decedent’s wishes regarding the disposition of their remains, as long as that individual is aware of the wishes, the wishes are within reason, and do not impose an economic or emotional hardship.  However, this statute does not say that the mortuary must honor the directions of the individual wishing to comply with the decedent’s wishes.  While A.R.S. § 36-831.01 does say that no funeral establishment or crematory shall be subject to disciplinary action or civil liability for following disposition instructions in good faith, that is still not a guarantee that the establishment will follow the instructions in the first place.  This problem can often be solved by moving the decedent’s remains to a facility that will honor the directions of the deceased or person with authority to make the arrangements.

Deciding whether to bury or cremate your loved one and related decisions should be the least of your concerns.  Unfortunately, problems and conflicts may arise.  Fortunately, Arizona law provides some guidance.  Please contact us if you have questions.