Who Can Legally Handle Your Funeral Arrangements?
By Randall Mundt, Cremation Society of Wisconsin
Most people are aware of the importance of preplanning their final wishes. When the subject comes up, generally people don’t think about all the fine details that need to be planned. Or they figure they will just leave it to their family members to figure out once they’re gone. When you’re planning ahead for cremation, there are some important choices to make that can get sticky when leaving the decisions to your next of kin.
Do you want to be buried, cremated, or donated to science? Do you want a service? Do you want your ashes buried in a cemetery, or scattered somewhere meaningful? Having these discussions ahead of time can be therapeutic, and everyone hopes that their family members will carry out their wishes as they’ve laid them out. Sometimes things don’t go as planned.
In Wisconsin, you cannot legally authorize your own cremation (or funeral plans). You can write things down to every last detail, you can prepay for everything, and your next of kin can change all your plans and do what THEY want instead. Some people think that if they have a Power of Attorney before they die, that POA will be in charge of their final arrangements. However, Power of Attorney ceases at death, so that person has no legal standing.
Wisconsin law is very specific in who can control your “final disposition”. Final disposition means choosing between burial, cremation, or body donation. The law is, as you can imagine, very detailed and specific, so we’ll cover the highlights. The state statute (154.30 if you’re looking for bedtime reading) says that the first person in line is an adult individual whom you have designated as your representative by way of completing an “Authorization for Final Disposition”. However, this is something that most people do not even realize is an option, so we’ll cover more on that later.
Without having that document, the first person in line is your spouse. This is simple, as there is one singular person making the decisions. If you do not have a spouse, your surviving child, or children are next in line. From here on down the line of possible next of kin, this is where it can get tricky, because if you have multiple children, the law requires that the MAJORITY of adult children agree on the method of disposition. (Important note that all individuals authorized to control disposition must be 18 years or older.) If you have two adult children, they must both agree. If you have three, then two must agree, and so on, as long as there is a majority. If you have no children, next comes parents, then siblings, and so on in descending order of degree of kinship. Just because someone is “estranged” or you don’t like them, this does not mean they do not have any rights. If next of kin on the same level of authority cannot agree, the courts must get involved before things can proceed.
What happens if you know that your next of kin does not agree with your wishes, and will not carry them out? What if you are estranged from your next of kin and do not want them controlling your final disposition? What happens if you don’t have any surviving family members? If you have a significant other, not legally married, even if you have lived together for 30 years, they have no legal standing whatsoever when it comes to your final disposition (unless you appropriately designate them). These are all excellent examples of when filling out the aforementioned “Authorization for Final Disposition” document comes into play. Whoever you designate in this document is the first person in line to control your final disposition, even ahead of your spouse, or any other family member. The requirements of this document are very specific, but luckily the State of Wisconsin has prepared a fill-in form for you. This can be found at the following website: https://www.dhs.wisconsin.gov/forms/advdirectives/f00086.pdf
Please note that this form must either be signed in front of two witnesses, or in front of a notary. If you are preplanning with a funeral home, be sure they have a copy on file. It’s important to know your rights and options when it comes to your final wishes.