Could the Josh Powell saga happen in Michigan?

By Marlaine C. Teahan Who has the authority to choose your burial place? Recent headlines are chock-full of stories about the family of Josh Powell who was trying to bury him in a cemetery in Washington State on a knoll that overlooks the grave of his two sons. The online community was horrified that this scenario could even be possible given that Powell murdered his children. The common sentiment was that Powell should not be buried in the same cemetery as his two little boys. People were not only questioning the appropriateness of the burial plots being sold to Powell's family, but were also questioning the legality and morality of the situation. Shouldn't the cemetery have refused to make this sale? Couldn't the children's maternal grandparents have stopped this unusual result? What would the result be here in Michigan? Oddly enough, subject to minor exceptions, under Michigan law you do not have legal authority to determine your own final resting place. Even if you state in your Will that you wish to be buried at a certain place or cremated, the terms of your last Will and Testament will not necessarily control. In addition, there are no laws that would prohibit a cemetery from selling a burial plot under circumstances similar to the Powell case. Who does control the final resting place of an individual, or decedent, after his or her death? Generally speaking, under Michigan law, the next of kin, in a certain order of priority, are presumed to have authority to make decisions regarding a decedent's funeral arrangements and the handling, disposition, cremation, right to possess the cremains, and disinterment of a decedent's body. The presumption that the next of kin has this decision-making authority could be challenged in a circuit court action brought by an individual without priority. Such a challenge could be based upon written instructions from the decedent, on a closer emotional relationship to the decedent, or some other ground. These types of challenges are not common; in most cases, the next of kin with priority makes all final decisions about a decedent's body. The person with the highest priority to make decisions about funeral arrangements and burial is the surviving spouse. If there is no surviving spouse, these decisions are made by majority rule among the individual or individuals 18 years of age or older, who are the next of kin in the following descending order of priority: children, grandchildren, parents, siblings, nieces and nephews, grandparents, aunts and uncles, then cousins. If the decedent had no living relatives, the following person would have priority: the decedent's guardian, the nominated personal representative, a special personal representative, the county public administrator, and finally, if the decedent was incarcerated, the director of the department of corrections. If there is a disagreement among the individuals with priority, any one of them could petition the probate court for an order to determine who has the authority to decide. Legislation recently introduced, if it became law, would permit a change to the statutory priority described above for members of the armed forces, a reserve branch of the armed forces or the Michigan National Guard. For more information, see House Bill 4639 at: www.legislature.mi.gov. An exception to the general priority rules stated above includes a gift of one's body, made during life, for the purpose of transplantation, therapy, research, or education. A person can make a gift of his body during life. If you wish to make a gift of your body, the best practice would be to make such a gift in a writing other than a Will. Since Wills are often not found right after death, or are not read until after a determination of the disposition of a body is made, your wish to gift your body will more likely be implemented if your gift is made outside of your Will. For more information on making gifts of your body, including body donor forms, contact MSU's Willed Body Program at (517) 353-5398 or go to http://anatomy.msu.edu/WilledBody/index.html. Other ways to control your own resting place, burial, or cremation involve creative estate planning. A Will or Trust could include a penalty clause that disinherits, or eliminates gifts to, those individuals who prevent your burial wishes, stated in your Will, from being implemented. In order to make this approach more likely to work, the funeral, burial and/or cremation wishes should be made known to those who are the named beneficiaries in the Will or Trust to give them incentive to follow your directions and to make a Probate Court more likely to allow the penalty to be enforced. Alternatively, you can get the commitment of a loved one, without priority, that after your death they will go to court to try to enforce your wishes for funeral, cremation and/or burial if the person with the decision-making priority will not follow your written directions. Contact attorney Marlaine C. Teahan of Fraser Trebilcock at 517-377-0869 or mteahan@ fraserlawfirm.com for more information on these topics and for help with estate planning, probate and trust administration. Published: Thu, Mar 1, 2012

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