Losing a loved one is one of the most difficult things we experience as human beings. And for many, the loss of a loved one requires the planning of a funeral, as well as other end of life decisions. In addition to honoring the wishes of your loved one, you will also want to be aware of laws regarding these decisions as governed by the State of New York.

As of 2006, and then revised in 2007, Public Health Law 4201, individuals were allowed to include in their estate plans an assignment for an agent in the disposition of remains. This gives the power to the person of your choosing to make a decision about burial or cremation of your remains.

The Appointment of Agent to Control Disposition of Remains is similar to a Health Care Proxy in that it designates a person or persons of your choice to carry out your wishes. It also provides directives concerning your remains if you wish to choose whether you are cremated or buried in a particular location.

At any time, an individual is free to revoke the power provided in previous appointments, which is beneficial for those who divorce and remarry, or experience other life changes. To be legal, the agent appointed is required to sign a document that accepts his or her appointment.

What Happens If I Don’t Designate an Agent?

If you fail to designate an agent, the responsibility will automatically fall to a decedent. Public Health Law 4201 gives priority is given in the following order:

  • Designee
  • Surviving spouse
  • Domestic partner
  • Children over the age of 18
  • Either parent
  • Any sibling over the age of 18
  • Guardian appointed by the Surrogate’s Court or Mental Hygiene Law
  • Person 18 years or older who is eligible to receive an estate distribution and a:
    • Grandchild
    • Great-grandchild
    • Niece or nephew
    • Grand-niece or grand-nephew
    • Grandparent
    • Aunt or uncle
    • First cousin
    • Great-grandchild of grandparents
    • Second cousin
  • Duly appointed fiduciary of the estate
  • Close friend or other relative aware of the decedent’s religious and/or moral beliefs
  • Public administrator

Why It’s Important to Create a Legal Arrangement for Your Remains

Essentially, if a person on the list does not exist, or is unwilling or unable to make a decision, the responsibility falls to the next person in line. Though the responsibility will automatically be given to a person’s spouse or immediate next of kin, in this day and age it’s important to make your wishes known.

According to the January 2014 edition of The American Journal of Preventive Medicine, the majority of adults in the United States do not have an advance directive. The study looked at nearly 8000 people, just over a quarter of which had advanced directives. This means most people will struggle to discern their loved one’s wishes and families will be forced to debate who controls important decisions. And for some, the preferred person to make funeral arrangements and decisions about the deceased’s remains might not be the automatic legal choice.

Appointing an agent to make funeral/burial decisions will ensure that your wishes are carried out during your family’s difficult time and limit any conflict that sometimes arises during such times.

If you have questions about Appointment of Agent Control Disposition of Remains, or you wish to assign someone control, we can help. Contact the Law Offices of Elan Wurtzel at 516.822.7866.

Source: NHPCO