Fulfilling Last Wishes

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Who gets to decide on after-death care?

Disposition of the deceased or after-death care of a loved one is an often emotional and stressful situation often with a sense of urgency to provide a respectful good-bye to a family's loved one.

By law, the deceased must be buried or cremated. The planning of a funeral arrangement will involve a variety of funeral service professionals. It's important to know the rules around preparing for the funeral.

Families and funeral service staff are required to follow Section 5 of the Cremation, Interment and Funeral Services Act in deciding who gets to make those important decisions regarding the care of a loved one after their death. This section of the Act sets out the order of priority for those who will make those decisions regarding funeral arrangements and whether burial or cremation will occur.

Section 5 lists this order of priority in determining who can make decisions regarding final arrangements -

  1. the personal representative named in the will of the deceased;
  2. the spouse of the deceased;
  3. an adult child of the deceased;
  4. an adult grandchild of the deceased;
  5. if the deceased was a minor, a person who was a guardian who had care and control of the deceased at the date of death;
  6. a parent of the deceased;
  7. an adult sibling of the deceased;
  8. an adult nephew or niece of the deceased;
  9. an adult next of kin of the deceased, determined on the basis provided by section 23 (5) of the Wills, Estates and Succession Act;
  10. the minister under the Employment and Assistance Act, or if the Public Guardian and Trustee is administering the estate of the deceased under the Wills, Estates and Succession Act, the Public Guardian and Trustee;
  11. an adult person having a personal or kinship relationship with the deceased, other than those referred to in paragraphs (b) to (d) and (f) to (i).

Definitions -

"spouse" -  is married to another person, is united to another person by a marriage that, although not a legal marriage, is valid at common law, or has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person's death.

"adult" - means someone who has reached the age of majority or 19 years of age.

"child" - a person under the age of 19

"parent" - the natural parent of a person, also includes a guardian or guardian of the person of a child, or a stepparent of a child if the stepparent contributed to the support and maintenance of the child for at least one year, and the determination for recognition by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child.

Further definitions that help to define family members in British Columbia can be found in the Family Law Act available here.

Basic Rules For Claiming the Right To Determine Final Care

1) If the person at the top of the list in the order of priority set out above, is unavailable or unwilling to give instructions, the right to give instructions passes on to the person who is next in rank on the priority list. Should this  right not be exercised by the first person identified, it is not transferable by that individual  but instead passes to the next person identified from the list.

2) If, under the persons named on the priority list, the right to control the disposition of human remains or cremated remains passes to persons of equal rank (e.g. brothers and sisters), the order of priority is determined in accordance with an agreement between or among them, or if they can't agree, the right begins with the eldest of the persons and descends in order of age.

3) If someone still feels that, despite all of the above, they should be given the sole right to control final wishes they may apply to the Supreme Court to be granted those rights.

Respecting the Preferences of the Deceased

It is important to remember that if the deceased gave written instructions in their will or in a pre-need funeral contract regarding their instructions for final disposition(i.e. burial or cremation); then the person with the right to give instructions must follow those instructions unless it could be considered unreasonable, impractical or cause a hardship.