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Who is in Charge?

The Right to Control the Disposition of Remains

It may seem like there’s an obvious answer when considering who will oversee one’s plans for final disposition. This responsibility is given to the legal next of kin, typically the surviving spouse, child, or parent. But what about when it’s not so clear cut. Who has the right to control disposition for a man who has no children, two surviving siblings and is estranged from his wife for over 30 years? Or the woman who is survived by her son and mother, but hasn’t spoken to her son since he left home at 18? Below, we will discuss who has the right to control disposition in New York State and what steps can be taken to put a plan in place for certain situations.

The Order of Hierarchy

In NYS, every funeral home must follow the legal order of hierarchy set forth in the New York State Public Health Law, Section 4201. This order of hierarchy allows a funeral home to determine who has the right to make the decisions regarding the final disposition of a decedent. The Order of Hierarchy is as follows:

§ 4201. Disposition of remains; responsibility therefor. Paragraph 2. (a) The following persons in descending priority shall have the right to control the disposition of the remains of such decedent:

(i) the person designated in a written instrument executed pursuant to the provisions of this section; (ii) the decedent's surviving spouse; (ii-a) the decedent's surviving domestic partner; (iii) any of the decedent's surviving children eighteen years of age or older; (iv) either of the decedent's surviving parents; (v) any of the decedent's surviving siblings eighteen years of age or older; (vi) a guardian appointed pursuant to article seventeen or seventeen-a of the surrogate's court procedure act or article eighty-one of the mental hygiene law; or (vii) a duly appointed fiduciary of the estate of the decedent.

(b) If a person designated to control the disposition of a decedent's remains, pursuant to this subdivision, is not reasonably available, unwilling or not competent to serve, and such person is not expected to become reasonably available, willing or competent, then those persons of equal priority and, if there be none, those persons of the next succeeding priority shall have the right to control the disposition of the decedent's remains.

Why is This Important?

As you read the order of hierarchy, the progression of who has the right to control disposition might seem logical. Naturally, one would expect a surviving spouse to have these rights, or a decedent’s children. But what about the situations we touched on earlier. In the first situation, despite their estrangement, the spouse still has the right to control disposition unless there is a legal divorce. In the second, regardless of the lack of communication for an extended period, the son still has the legal right to control disposition. At a time when emotions are already high, navigating these familial situations can be difficult and can slow down the process of completing the desired disposition.

Designation of an Agent

One might ask- is there a way to avoid these situations before they occur? Can I give the right to control my disposition to a chosen person? The answer is yes. You can designate, in writing, an Agent who will have the right to control disposition. To do so, an Agent Form must be completed by both the person appointing the agent and the person accepting the appointment. The form must also be witnessed by two people but does not need to be notarized. Once completed, the agent form should be kept on file with the funeral home of choice, an attorney or with important documents.

Who Can be Appointed Agent?

An agent can be anyone 18 years of age or older at the time of the appointment. This is often a trusted friend or family member but can truly be anyone the decedent wishes. In some cases, someone who is further down the order of hierarchy may be appointed the agent because they are trusted by the decedent to carry out their wishes for final disposition. When one accepts the appointment of agency, they are certifying that they will carry out any written wishes of the deceased to the extent that they are legal and possible.

Do I Need an Agent?

Everyone’s situation is different, but it is good to be prepared. When you look at the order of hierarchy and determine who will be in control of your final disposition ask yourself a few questions. Do I trust this person to carry out my intended plans for the disposition? Will this person be of sound mind to make these decisions when I pass if I have no other plans in place? Is my relationship with this person in good standing? If the answer to any of these questions is no, you may want to appoint an agent. By appointing an agent, you can give yourself peace of mind that your wishes will be followed.

When it comes to the person having the right to control final disposition, this determination must be taken very seriously by the funeral home. We are obligated by law to determine who we should be taking directive from. While in most cases, this determination is simple, it is not always so. By informing yourself about the Order of Hierarchy that funeral homes must follow, you can make educated decisions about what steps are right for you. As always, we recommend speaking with your trusted funeral director with any specific questions regarding the right to control disposition and the appointment of an agent.

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