I have received phone calls in the past from distressed family members in conflict trying to make funeral arrangements for a loved one. It would seem to be a simple question, “Who has authority to make decisions regarding funeral and burial arrangements?” A health care power of attorney and living will, commonly called advance directives, designate individuals to make health care decisions for an individual while they are alive, and grant no authority after death. A testamentary will makes provisions for the disposition of a decedent’s material assets after they are gone. The formal probate process is normally not started until sometime after the funeral.

The State of Wisconsin has developed a standardized authorization form to address this gap period between death and the start of probate proceedings, so that people can designate a person authorized to make “final disposition decisions.” This includes authority to make arrangements for a viewing, determining the type of funeral ceremony or memorial service, as well as the actual burial, cremation or other disposition of the body.

Completing advance directives for these matters should make proceedings easier for families, as well as funeral directors. Everyone should complete advance directives as a part of the estate planning process. However, the majority of adults fail to do any formal estate planning and often die without the appropriate documents in place. If a decedent does not have an advance directive for funeral and burial arrangements, the new law also designates the priority of individuals who will have authority to make decisions.

If the decedent did not have an advance directive, the first choice by statute would be the surviving spouse, if any. If no surviving spouse, the surviving children of the decedent, then the surviving parent or parents of the decedent, and then siblings of the decedent and more distantly related relatives if individuals in the first classes do not survive. If there is more than one child, the majority of the surviving children have control of the disposition, which appears to call for a majority vote. If there is no advance directive signed, it obviously could still lead to conflict if the children do not agree on the disposition of the body. It would obviously be preferable for an individual to name the specific individuals they want to make decisions to avoid a family conflict.

Individuals should inquire about this useful advance directive as a part of their estate planning process. It is also a good idea for elderly individuals to make their own funeral arrangements ahead of time when possible to avoid the conflict that might come when family members disagree on what their loved one wanted for funeral and burial arrangements.

Lance A. McNaughton practices estate planning, probate, business, and real estate law, including landlord-tenant cases, in both Lafayette and Green Counties in Wisconsin. He can be reached by e-mail at mcnaughton@swwilaw.com.