Many times, when we sit with someone and the subject of final disposition is discussed, we usually start by explaining who has the legal right to authorize the funeral arrangements of their loved one or friend. In New Jersey, you cannot preauthorize your own final disposition. You can certainly prearrange the details and prepay for services but the final arrangements, after death, must be signed by the legal next of kin as described below by the New Jersey Funeral Directors Association:
Unless a court of competent jurisdiction has given other directions, the right to control hierarchy is as follows:
Funeral Agent or designee on an active duty service member's DD Form 93*
Legal spouse, NJ registered domestic or civil union partner**
Majority of surviving children over the age of 18
Surviving parent(s) of decedent
Majority of surviving siblings over the age of 18
Other relatives according to the degree of relationship
If there are no known living relatives as outlined above, the funeral director may accept the written authorization of other interested parties (i.e., friend, neighbor, colleague).
Let us look at the first bullet point above. So then, what is a Funeral Agent? Once again, as described below by the New Jersey Funeral Directors Association at www.njsfda.org:
Funeral Agent
There are times when people outlive their family members, become estranged from living relatives or are unsure that remaining family members will abide by their final wishes. By law, you cannot authorize your own funeral and disposition (burial, cremation, etc.), so what can you do?
In New Jersey, you have the right to appoint a funeral agent. Once named, an agent has the absolute right to arrange for a decedent’s burial or cremation and make final funeral arrangements. The funeral agent’s right to control supersedes the rights of all others, including a spouse, civil union and domestic partner, children, parents, siblings and any other relatives.
Appointing a Funeral Agent
The funeral agent option is the legal way for you to appoint a specific person to make decisions for your funeral at the time of your death.
New Jersey law provides two options for those seeking to appoint a funeral agent.
The first method is through a will or a codicil to a will. Those wishing to appoint a funeral agent by this method should talk to an attorney and explain that they wish to designate an individual as a funeral agent according to N.J.S.A. 45:27-22. The executor of a person’s will is not automatically the funeral agent, unless a specific appointment and wording is included in the will.
The attorney will either draw up a will or amend the existing will to include language similar to the following to appoint a funeral agent:
Appointment of Funeral and Disposition Representative
"I hereby nominate, constitute and appoint [insert name] to serve as my Funeral and Disposition Representative, pursuant to N.J.S.A. 45:27-22. My Representative shall have the authority and power to control the arrangements for my funeral and the disposition of my remains. My Executor shall notify my Representative of this appointment, and shall advise my Representative of the financial means available to carry out the Funeral and Disposition arrangements. In the event [insert name] should predecease me or for some other reason not qualify to serve as my Funeral and Disposition Representative, then I nominate, constitute and appoint [insert name of alternate] as my Funeral and Disposition Representative."
The second method is through the execution of a form approved by the New Jersey Cemetery Board. The form must be signed by the intended funeral recipient and two witnesses and notarized. The form can be found on the New Jersey Cemetery Board’s website: https://www.njconsumeraffairs.gov/cem/Applications/cadf.pdf
Who can be a Funeral Agent?
The executor of an estate, a friend, a specific relative, lawyer or other acquaintance can be named as a funeral agent. To avoid any perceived conflict, a funeral director should not be named as a funeral agent.
If you are designated a funeral agent, you are in charge of making the funeral arrangements for the deceased. Following death, but prior to probate, the executor of the will must inform you of your appointment as funeral agent and let you know what finances are available for the funeral expenses. A funeral director will guide you through the arrangement process and help you understand the decisions you need to make.
In closing, many people are not aware of the right to control hierarchy and especially not aware that they can name a funeral agent to handle their final arrangements. A funeral agent is especially valuable in situations where there is no next of kin or if a person has family but is estranged from such family. Please feel free to contact us to discuss your specific situation. We are always more than happy to assist you.
