Posted: November 15, 2013
By T. Scott Gilligan, NFDA general counsel
In the NFDA report on state right of disposition laws done in 2011, it was noted that Hawaii was one of only two states without a right of disposition law (Alaska is the other state). Without a right of disposition law, there was great uncertainty in Hawaii as to whether and how an individual could control the method of disposition after death. Additionally, there were no mechanisms to deal with funeral and disposition disputes among family members, or taking away the right of disposition from uncooperative or estranged relatives, or those who criminally caused the death. Of equal concern, funeral homes, crematories and cemeteries had no immunity protection if they were sued for relying upon dishonest claims by family members.
Hawaii, as had nearly a dozen other states over the past decade, decided to address the situation. It obtained from NFDA one of the model right of disposition laws that are available to state associations. NFDA has several versions of the model right of disposition law which vary depending upon whether the state wishes to provide an individual with the right of disposition directly or through an agent. The model law can also be modified to allow an individual to control his or her disposition by will, by preneed contract, by sworn affidavit, or through any combination thereof.
Hawaii used the NFDA model law which allows an individual to control the funeral and disposition by placing instructions in a will, by entering into a preneed contract, or by signing written instructions that are notarized. Alternately, a person may appoint an agent who then has the right of disposition, even over a spouse.
If a person does not take any steps during their lifetime to control the disposition, the new Hawaiian law establishes a detailed priority list. The spouse or a partner from a civil has the top priority, followed by a majority of adult children, then parents, siblings, grandparents and finally grandchildren. If none of those individuals exist or can be located, the guardian has priority followed by the personal representative of the estate and then more distant relatives. The final category is anyone who is willing to assume the responsibilities to act and arrange the final disposition after attesting in writing that a good faith effort had been made to notify any individuals on the priority list.
Hawaii's new right of disposition law contains all of the key provisions found in NFDA's Model Right of Disposition Law that helps both the family and funeral directors in making arrangements. For example, it contains a provision which takes the right of disposition away from a person who is arrested for murder or manslaughter in connection with the death. The statute also takes away a person's right of disposition if they do not step forward within five days of notification of the death or within seven days of the decedent's death to make arrangements. If any proceedings had been started to terminate or annul the marriage or civil at the time of death, the right is also taken away from a spouse or civil partner. Finally, the Probate Court is given the authority to strip a person of the right of disposition if it finds that the person was estranged from the decedent at the time of death.
The Hawaiian law also includes the critical protections that funeral homes, crematories and cemeteries need. It allows any of those entities to rely upon the representation made by a family member without needing to further investigate it. Provided it has relied in good faith upon a representation, the funeral home, crematory or cemetery is immune from lawsuit. The funeral home, crematory or cemetery is also given the right to petition the court for relief and to maintain the status quo in the event there was a dispute without fear of a lawsuit. Finally, Hawaii also addresses the issue of unclaimed cremated remains by giving a funeral home, crematory or cemetery in possession of unclaimed cremated remains the authority to dispose of them sixty days after the cremation takes place.
While Alaska remains the only state without a right of disposition law, there are a number of states which could improve their existing right of disposition laws. For example, there are still up to 20 states that do not have provisions that allow the majority of relatives holding equal rights to control the disposition or which do not take away the right of disposition from relatives who cannot be located or who are uncooperative. Twenty-seven states still do not have a provision to disqualify a relative who is arrested for criminally causing the death. In addition, there are more than 10 states that still need to place immunity provisions in their laws to protect funeral homes, crematories and cemeteries from lawsuits.
If any state association or member wishes to obtain NFDA's Model Right of Disposition Law, please contact NFDA General Counsel Scott Gilligan at 513-871-6332
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