Rights for deceased to determine arrangements

I responded to this post:

"they can say what they like. It doesn't give them any authority over the remains when the person passes."

I never said that they have authority over my dead body, they don't say it either, what they're clearly offering is a service and the basis of that service isn't set out in law, rather it is based on the wishes of the person who is paying for the service, in advance of their death.

You're also saying that the undertaker has no say in the funeral arrangements, or course they don't, but what they have is my money to provide a service as per my wishes as to how I want my funeral to go, as I said, if my next of kin wants to do something else, they will have to pay for it, so my undertaker is grand, he's made a nice wedge for doing nothing and I am dead, so I won't care.....

I didn't say I would be entitled to any refund.

Read again, I said:

"Would my next of kin then look for a refund from the undertaker that I chose, how would that work? I paid for it and I am dead?"

My source is direct personal experience. Do you have any direct personal experience or other source that contradicts this?

An arrangement whereby a person is taken to the final stage either cremation or burial, is called a 'direct funeral'. My mother wrote and signed a detailed 'letter of wishes' and this covered her funeral arrangements and disposal of ashes. This is not as binding as a will and at the discretion of family/executors. My brother died in Australia. The newspaper would only put a notice in once the Australian undertakers confirmed the death. Only undertakers can put in notices to RIP.ie

For the umpteenth time, as explained above on the link by Sage Advocacy, next of kin has no legal status and is simply a contact point.

We have broadly similar messages from four leading undertakers, none of which are hard-sell advertisings, explaining how pre-planned funerals can be arranged.

Would you like to present any legal proof that contradicts me?

In the blue corner, we have Ireland's largest undertaker, founder member of the Irish Association of Funeral Directors, telling you explicitly that; "We promise that the details of your Plan will be carried out, as agreed." and three other undertakers telling a broadly similar story.

In the red corner, we have a few random posters on boards.ie with vague assertions that "It wasn't like that with my granny" but no-one giving any actual specifics about what did happen with their granny or any written source of any kind that supports their position.

Take your pick.

My condolences on your loss Loueze.

Three issues:

First, does a representation made in advertising or in negotiations form part of the contract? This, as you can imagine, is a legal issue with a lot of ramifications and one that leads to much heated argument, and not just in relation to funerals. There isn't a one-word answer to the question; the answer will differ depending on a host of facts and circumstances of each case where it arises.

But, rather than sidetrack the discussion into that fascinating but complex area of law, let's assume that in this case the answer is "yes - this promise does form part of the contract". That bring us to the second issue:

Who can enforce this promise? The contract was made between the undertaker and Joe who, of course, when the time for performance of the contract arrives is dead. Both legally and as a matter of practical reality, dead people cannot enforce contractual rights. If the contractual right survives Joe's death - and this one, I think, does - then it is enforceable by Joe's legal personal representatives - his executors, if he has made a will appointing executors, or the administrators of his estate, if he hasn't. The administrators will usually be close family members who apply for and obtain a grant of representation from the Probate Office.

Right. Others have pointed out that there won't be a grant of probate or grant of representation until months after the death so, unless Joe is going to be kept on ice for a long time, the promise is in practice unenforceable at the time it needs to be performed. But, no. Suppose Joe's family wants the undertaker to deliver the promised and paid-for funeral and the undertaker for whatever reason says "No. Sod off." In the short term, there is little the family can do except arrange a funeral with a different undertaker. But once the grant of probate/representation issues, the executors/administrators can now turn around and sue the first undertaker for breach of contract, seeking the full cost they incurred in arranging an alternative funeral, interest, expenses, damages for emotional distress, etc. And the knowledge that they can do this gives the first undertaker an incentive to perform the contract as promised, so he doesn't say "No. Sod off." So, even though the mechanism for enforcing this contract would take time, it is nevertheless effective enough to incentive the undertaker to perform the contract as promised.

But we are looking here at a different scenario, where the first undertaker is happy to perform the contract but the family don't want them to. How does that play out?

So, the third issue: The undertaker promised Joe that he would conduct Joe's funeral in accordance with Joes wishes. Can the undertaker deliver on this promise against the wishes of Joe's family, not because anyone forces him to, but because he wants to or feels bound to? The answer to this question is that, simply because you have promised to do something and have even accepted money to do it does not, in itself, give you the right or power to do it. I enter into a contract to sell alcohol to you, but you are under 18; I do not have the right to sell alcohol to you. I exchange marriage vows with you in the presence of the registrar and two witnesses, but I am already married to someone else; we are not married. I promise to leave Blackacre to you in my will, but Blackacre actually belongs to my brother; I cannot bequeath Blackacre to you. I accept money from you with a promise of getting all my family to vote for you in the coming election; I do not have the right to tell my family how they must vote. Etc, etc. In all these scenarios I might get into trouble for making the promise and incur various kinds of legal liability for doing so, but I still cannot deliver on the promise (or be penalised for not delivering on it).

And I think we're in a similar scenario here. Unless someone can point to a law which gives an undertaker the right to take possession of a cadaver from the next-of-kin, this is a promise which the undertaker simply cannot deliver on, without the assent and cooperation of the deceased's family, and he should not have made it in unqualified terms.

(And I suspect if we read the prepaid funeral contract in full, plus all the supporting documents and materials, we'll find that the promise is qualified - it's a promise to perform the agreed funeral in co-operation with the family, when called upon by the family, in accordance with the family's instructions, etc, etc. It may not say so in the ad, but it will say so somewhere in the documents, expressly or by implication. If it doesn't say that anywhere, then I'd say that the contract is badly drafted. But entering into badly-drafted contracts doesn't give you rights to do things that you had no right to do before.)

Well, the first point to note in the context of this thread is that it will not release your body to an undertaker. Whoever your next of kin is, it's not him, (unless by chance he happens to be your spouse, etc).

Legally, next of kin is a somewhat rubbery concept (as perhaps befits the almost infinite variety of personal and family arrangements that exist in messy reality). Historically, the law has mainly concerned itself with protecting people's property interests and your "next of kin" were your closest relatives; the ones who would inherit your personal property if you died (without making a will). This was precisely defined in law; your next of kin was your spouse, if they survived you; if you left no surviving spouse, your children jointly; if you left no spouse and no children, your grandchildren, so on for as many generations of descendants as you begat before dying; if you left no spouse or descendants, your parents; if you left no spouse, descendants or parents, your siblings; and so on to more and more remote relatives.

The rules about who will inherit you property if you die without a will are still regulated precisely by law. The legislation that does that now doesn't actually use the term "next of kin", but it's fundamentally the same concept.

There was never a law that said your next of kin (in the inheritance sense) had the right to make personal decisions on your behalf if you were incapacitated. If the decisions that needed to be made related to matters of money or property - always, as I said, the main interest of the law - then people could head off to court, have you declared a ward of court, and the court would make the decisions that needed to be made. Making decisions about personal care and medical treatment was another matter. Until relatively modern times this didn't arise quite so much, because medical science wasn't so great at keeping incapacitated people alive for a long time. For example, until tube-feeding was invented (which is quite recently) if you were incapacitated by a stroke you would starve to death within a few days because you couldn't eat.

But it did sometimes arise. When difficult medical choices had to be made, doctors would consult the near family because (a) they were most likely to know what the incapacitated patient wanted or would have wanted, and/or to have other relevant information, and (b) they were most likely to complain, and best positioned to complain, if they didn't like the choices the doctors made. So this was a matter of practicality and common sense, rather than a legal entitlement of the near family. But. even though the near family were likely also to be the next of kin in the inheritance sense, any right or expectation they had about being consulted didn't arise from the fact that they were the next of kin for inheritance purposes, but from the fact that they were likely to be personally close to the patient.

That's still basically the position today. There are now processes you can go to to, e.g. give someone an enduring power of attorney, etc. But if you don't go through those, and medical decisions have to be made, and you're not able to make them, there's no rule that says either your close family members or your next of kin have the right to make them. The doctors will consult them and attach great weight to their views but, in the end, its the doctors who make treatment decisions, and the legal obligations they owe are not to the family or next of kin but directly to the patient.

Right. Funerals. The legal position here is that the Succession Act 1965 s. 46 says that the estate of a deceased person is "assets for the payment of funeral, testamentary and administration expenses, debts and liabilities . . .". And this is the first priority; your estate is used first of all to pay your funeral expenses, the cost of administering your estate itself and any debts and liabilities that you may have and only after that is whatever is left over available for bequests and inheritances. Which means, if you think about it, that your executors/administrators can't complete the distribution of your estate until they know what your funeral has cost, and have paid it. And, since your executors/administrators have a duty to administer your estate, this means that they have a duty to see that your funeral proceeds. Which gives them a power, as well as a duty, to organise your funeral, if nobody else does.

There's a public interest in ensure that everyone is burned, buried or otherwise disposed of — we don't want the countryside littered with rotting cadavers. In the last analysis, if nobody else does it, the HSE will step in and give you a basic funeral on public health grounds. But they'd much rather not do that if at all possible. So if you're bed-blocking in the hospital morgue and the HSE are looking for someone to put pressure on, they'll put pressure on your family, and if the family is paralysed by disagreement they'll put pressure on the executors/administrators, because they have a duty and a power to do what needs to be done, and in the last analysis they can do it even though some members of the family don't want it done.

But it's extremely rare for matters to reach that pass. As already noted, typically many months will pass before the executors/administrators are formally appointed, and the HSE won't normally wait that long. They'll knock family heads together with the threat that, if you don't come to some kind of workable agreement about conducting a funeral, the HSE will take over and do one itself.

Completely out of the loop is an undertaker with whom the deceased made a prepaid funeral contract, but that the family wants nothing to do with. He has no standing at all to claim the body or bury it.

It has been asked in this thread - I think jokingly - if you could bring the undertaker into the loop by appointing him as your executor. I think the practical answer is that no undertaker in his right mind would accept the appointment - he'd land himself into an almighty family row, plus as executor he wouldn't just have to conduct the funeral; he'd have to administer the entire estate, which is not really part of the service undertakers offer. It would be a nightmare.

Thanks for the detailed response. It doesn't quite get to the heart of the issue.

Let's take one scenario.

Johnny dies in the hospice, leaving no family behind. He's arranged an advance funeral plan with the local undertaker, and has a note on his hospice file to contact the undertaker on his passing.

The hospice contact the undertaker, who shows up at the hospice to take his remains for burial.

What happens next?

Is there any particular legal requirements around this transaction? What documents do the undertakers need to show to be given Johnny's remains?

Have you any source for this please? Is it set out in legislation or HSE policy? Are you sure this tracing is a HSE role and not a TUSLA role, as they are generally responsible for social work activities?