Funeral and Burial Instructions: Report (html)

5. Options for reform

Introduction

5.1 In its consultation paper, the Commission invited community members to comment on four options for reform:

1. Enshrine the common law position in legislation.

2. Oblige the person with the right to control the disposal of a body to make appropriate funeral and burial arrangements after taking relevant factors into account.

3. Allow people to leave binding funeral and burial instructions.

4. Allow people to appoint a funeral and burial agent.

5.2 Proposals for alternative options for reform were also sought.

5.3 This chapter examines responses to these options and explains why the Commission favours the creation of a legislative regime that allows people to leave binding funeral and burial instructions and/or appoint a funeral and burial agent.

5.4 The Commission concludes that where a person does not leave instructions, the person with the right to control the deceased’s funeral and burial arrangements should be allowed to make any arrangements, provided they are not unlawful or contrary to the known beliefs or values of the deceased.

Option 1: Enshrine the common law position in legislation

5.5 At common law, the executor of a person’s will has the right to decide what happens to the person’s body when they die. If a person dies without a will, their likely administrator has that right.^[1]

5.6 The executor, or likely administrator, may dispose of the body in any manner they wish, provided it is not unlawful,^[2] wholly unreasonable^[3] or exercised in a way that prevents family and friends from expressing their affection for the deceased in a reasonable and appropriate manner.^[4]

Responses in favour of Option 1

5.7 In its online survey, the Commission asked respondents to indicate which of the four options they supported.^[5] Nine per cent of respondents said they supported the common law position on funeral and burial arrangements.

5.8 Some community members supported the current position because it accords with their belief that the deceased’s wishes are secondary to the needs of the bereaved in relation to making funeral and burial arrangements. One person told the Commission:

the law conforms to my complete disbelief in any life hereafter. Where a person dies believing that his/her remains will be disposed of according to certain wishes, it is ultimately not them but the grieving and sometimes conflicted relatives who are in any way affected.^[6]

5.9 More frequently, community members supported the current position because it allows the funeral and burial to be held quickly, and prevents disputes. Maurice Blackburn Lawyers’ submission stated:

Decisions on funeral arrangements must be made as promptly and efficiently as possible after the person’s death. Allowing the discretion as to disposal of the body to remain reposed in the legal personal representative (or other right holder) facilitates this … Removing, or introducing additional hurdles to, the exercise of the discretion risks increasing the incidence, severity and duration of disputes and litigation.^[7]

5.10 Participants in the Commission’s consultation with the Jewish Community Council of Victoria noted that being able to hold the funeral and burial quickly was important because Jewish custom dictates that a person should be buried within 24 to 36 hours of their death, or as soon as possible thereafter. If it was easier for an aggrieved party to formally challenge the appointment of the person with the right to control the funeral and burial arrangements and/or any arrangements that person made, the deceased’s funeral could be unnecessarily delayed by the lodging of baseless complaints.^[8]

5.11 In addition, Maurice Blackburn Lawyers observed that the deceased’s executor is the most suitable person to arrange the deceased’s funeral and burial:

In most instances, the executor has been selected to carry out the wishes of the deceased as a consequence of the relationship of trust and confidence that exists between the executor and the deceased.^[9]

5.12 Anne Cregan, Special Counsel, Gilbert + Tobin, favoured the current common law position for similar reasons to Maurice Blackburn Lawyers, and cautioned against attempting to solve a problem that changes to legislation cannot solve.^[10]

5.13 Both Maurice Blackburn Lawyers and Ms Cregan identified concerns they had in relation to the other reform options, including that obliging the person with the right to make funeral and burial arrangements to make appropriate decisions was too great a burden to place on that person, and that people might change their mind after leaving written instructions. In this context, they argued, the current position was preferable.^[11]

5.14 When expressing its support for retaining the current common law position, State Trustees observed that enshrining this position in legislation would make it easier for non-lawyers and lawyers to find and understand. State Trustees said that when asked about the authority of the executor in relation to funerals and burials, it currently ‘responds by quoting fairly lengthy extracts of case law and commentary’.^[12]

Responses against Option 1

5.15 The vast majority of community members rejected this reform option. Most frequently, they opposed it on the grounds that it did not sufficiently uphold the wishes of the deceased. One person told the Commission:

It is totally unsatisfactory that another person can determine how MY funeral and burial will take place and potentially organise something completely against my wishes and beliefs.^[13]

5.16 This reform option was also rejected for not adequately upholding the wishes of all of the bereaved. Christine Hennequin, Manager of Support and Development, Spiritual Health Victoria, told the Commission that it is extremely important to acknowledge the grief of all of the significant people in the deceased’s life in their funeral and burial arrangements. Failing to do this not only harms the bereaved, but also society more broadly.^[14]

5.17 The Law Institute of Victoria shared the view that enshrining the current position in legislation would not ‘be adaptive to the developments of Australian modern society’.^[15]

5.18 In addition, the Law Institute of Victoria argued that this option would not provide the requisite certainty needed by everyone involved in the funeral and burial process.^[16] More specifically, it stated:

There is anecdotal evidence from our members [i.e. lawyers] that funeral operators tend to follow the wishes of those who assert themselves as the decision maker, rather than seeking out instructions from the executor or the likely administrator. When the executor or likely administrator is identified it is usually too late as the funeral and burial process has already commenced. The lack of a clear process can cause unnecessary and considerable distress to immediate family.

Enshrining the common law position would face the same difficulties currently experienced and would not provide an adequate solution.^[17]

5.19 Professors Philip Hamilton and Prue Vines independently observed that there was no good reason to adhere to the rule on which the common law is based, that being that there is no property in a dead body.^[18] Professor Hamilton stated that ‘the time has come when the old and outdated rules about disposal of corpses should be themselves disposed of’.^[19]

Conclusions

5.20 When those involved in a dispute are aware of the law, and the executor or likely administrator is known and available, the common law position provides a great deal of clarity and certainty. It prevents disputes from going to court as there are few grounds on which to challenge the authority of the executor or likely administrator, and it allows funerals and burials to take place quickly.

5.21 A disadvantage of the current law, however, is that one person is granted near-absolute control over the deceased’s funeral and burial arrangements even though they were not necessarily selected by the deceased to fulfil that role. Moreover, the deceased has few legal alternatives available to them to ensure that their wishes are carried out.

5.22 As discussed in Chapter 2, the law on funeral and burial instructions emerged in 19th century England when it was presumed that everyone wished that ‘the bodies of those in whom he was interested in their lifetime should have a Christian burial’.^[20]

5.23 The society in which the law is now implemented is different from 19th century England in a number of respects. One third of marriages ends in divorce,^[21] one fifth of the population was born in a non-English speaking country,^[22] and people identify with a variety of religions, hold no religious beliefs or affiliations, or reject religion and its teachings and practices.

5.24 In addition, many more people expect that they should be able to decide for themselves how they want their identities and relationships to be honoured in their funeral and burial arrangements.

5.25 Accordingly, the Commission considers that it would be inappropriate to enshrine the common law position in legislation.

Option 2: Oblige the person with the right to control the disposal of the body to make appropriate funeral and burial arrangements after taking relevant factors into account

5.26 In New Zealand, the person with the right to control the disposal of a body must make appropriate arrangements after taking into account the deceased’s wishes, the views of family members and the deceased’s cultural or religious background. They may also take into account the need to bury the body without undue delay.^[23]

5.27 If an aggrieved party feels the arrangements are not appropriate, they may ask a court to review the appropriateness of the right holder’s decisions.^[24]

5.28 The Commission asked community members whether the obligation to make appropriate arrangements after taking relevant factors into account should be imposed on the person with the right to control the deceased’s funeral and burial arrangements in Victoria.

Responses in favour of Option 2

5.29 In the Commission’s online survey, this reform option attracted the most support, with 56 per cent of people indicating they were in favour of it. However, respondents were permitted to express their support for more than one option, and this figure includes those who viewed this option as the most desirable option, as well as those who viewed it as the second most desirable option after binding funeral and burial instructions.

5.30 Many people who favoured this option over funeral and burial instructions did so because it would allow the bereaved to override instructions that were defective in some way. Funeral and burial instructions that were perceived to be defective included those that were outlandish or extravagant,^[25] beyond the capacity of the estate^[26] and made many years before the person’s death.^[27]

5.31 It was also said that the deceased’s funeral and burial instructions should be disregarded in the event of unforeseen circumstances.^[28]

5.32 One community member told the Commission about a person whose carefully crafted funeral and burial plan was overridden by their adult child. The person asked that their body be kept at home for three days after their death so that family members and friends could sit with them and say goodbye if they wished. On the second day, the deceased’s child became distressed and arranged for the body to be taken to a refrigerated storage facility. The person had died in summer, and their child was upset by the body’s deterioration.^[29]

5.33 Several people argued that the bereaved have a range of needs that ought to be respected when making funeral and burial arrangements, even when those needs are contrary to the instructions of the deceased.^[30] These people emphasised the fact that failing to address the needs of the bereaved in the deceased’s funeral and burial arrangements can cause significant harm to the bereaved, which can then impact on society more broadly.^[31]

5.34 Molly Carlile, a member of Palliative Care Victoria, told the Commission that a number of bereavement factors leave people unable to move through the stages of grief and, consequently, in need of counselling or other interventions. One such factor is being unable to comprehend that the death has occurred. This may arise where the bereaved did not see the deceased’s body or spend time with the deceased.^[32]

5.35 A lesbian told the Commission that she did not intend to follow her mother’s funeral and burial wishes because they were rooted in prejudice and adhering to them would cause her great distress. This person had cared for her elderly mother for many years, and had recently been told by her mother that she had given her son money and directions for her funeral and burial. Although the woman knew that her mother had not accepted her sexuality, she nonetheless believed that she had a loving relationship with her mother. However, her mother’s instructions to her son were that neither she nor any of her lesbian friends should be allowed to attend her funeral and burial.^[33]

5.36 This person felt that her situation demonstrated why it was important to allow the person with the right to make funeral and burial arrangements to take all relevant factors into account, rather than requiring that person to adhere to the deceased’s instructions.

Responses against Option 2

5.37 Many people opposed this option on the grounds that an individual’s wishes for their funeral and burial should ordinarily override the views of all others.^[34]

5.38 The Law Institute of Victoria, the Victorian Bar and the Victorian Aboriginal Legal Service all stated that relevant factors should be taken into account by the person with the right to control the funeral and burial arrangements, but only when the deceased had not left instructions.^[35]

5.39 In contrast to the position of the lesbian daughter discussed above, a number of LGBTI groups and individuals argued against allowing the person with the right to control the disposal of the body to set aside the deceased’s wishes.^[36] As discussed in Chapter 3, the Commission heard many accounts of funeral and burials that had been ‘straightwashed’,^[37] including by preventing the deceased’s partner and LGBTI friends from attending.^[38]

5.40 Participants in the Commission’s consultation with Transgender Victoria were concerned that the expression ‘appropriate arrangements’ could be manipulated to suit the needs of a deceased’s transphobic family members.^[39]

5.41 Some who opposed this option did so on the ground that the requirement to make appropriate arrangements would place a significant, and potentially harmful, burden on the decision maker.^[40]

5.42 Anne Cregan, Special Counsel, Gilbert + Tobin, said: ‘Obliging a person to take on a weighing up exercise may be too burdensome for someone in grief and without legal training’. Ms Cregan stated that the decision maker would be in a particularly difficult position in the event of a dispute, and noted that ‘these problems may be further exacerbated in disadvantaged groups where people have less access to advice on their obligations’.^[41]

5.43 State Trustees told the Commission that ‘requiring an executor to take factors into account before making a decision could pose evidentiary issues in the event that a particular case is litigated’. While administrative decision makers are often required to undertake a balancing exercise of this kind, they are also usually subject to record-keeping requirements. State Trustees expressed concern that individuals would struggle to prove whether they had or had not taken the prescribed factors into account.^[42]

5.44 Some objected to this option because of the time it would take to resolve challenges to the appropriateness of the decision maker’s decisions. For these people, it was important for the deceased and/or the bereaved that the funeral and burial take place quickly.^[43] Participants in the Commission’s consultation with the Jewish Community Council of Victoria observed that delaying the funeral beyond 24 to 36 hours would be too long.^[44]

Conclusions

5.45 The Commission does not support the adoption of this option in Victoria.

5.46 The Commission considers that this option does not provide the requisite level of certainty needed by those who feel strongly that a particular course of action should be taken after their death. This accords with the Commission’s earlier conclusion that society’s emphasis on individual autonomy should be better reflected in the law on funeral and burial instructions.

5.47 In addition, what constitutes ‘appropriate arrangements’ for one person may not do so for another, creating significant potential for confusion and disagreement.

5.48 If the appropriateness of the decisions of the person with the right to control the arrangements was challenged in court, that person would be required to defend the procedural and substantive merits of their decisions. Where that person was a close family member or friend of the deceased, this experience would undoubtedly compound the distress they were experiencing as a result of their loved one’s death.

5.49 Many of those who favoured this option did so because they were concerned that the needs of the bereaved would not be adequately taken into account if people were allowed to leave binding funeral and burial instructions. However, under the Commission’s proposed legislative regime, the needs of the bereaved could be incorporated into a person’s funeral and burial arrangements in a number of ways. These include:

• allowing the deceased to leave binding funeral and burial instructions that address the needs of the bereaved

• allowing the person with the right to control the arrangements to deviate from the deceased’s instructions with the permission of the court where complying with the instructions would cause unforeseen and unnecessary distress to the bereaved^[45]

• in the absence of instructions, requiring the person with the right to control the arrangements to seek the views of those close to the deceased before making the arrangements.^[46]

Option 3: Allow people to leave binding funeral and burial instructions

5.50 In some jurisdictions in Canada and the United States of America, people are allowed to leave funeral and burial instructions that are binding on the person with the right to control the disposal of their body.

Responses in favour of Option 3

5.51 In the Commission’s online survey, 53 per cent of respondents expressed support for allowing individuals to leave funeral and burial instructions that are binding on the person with the right to control the disposal of their body. Of those who expressed support for more than one option, most identified this as their preferred option.^[47]

5.52 The following statements are typical of the responses the Commission received from community members who believed that the wishes of the deceased should be granted primacy:

I believe every person should have the right (under law) to have their wishes carried out including following their death.^[48]

The wishes of the deceased should not be overridden by the views of the family, who might have no tolerance for, or understanding of, views different from their own.^[49]

Carrying out the funeral and burial instructions of the deceased is the last duty to the deceased … [and the] deceased deserves respect.^[50]

5.53 Many people who supported binding funeral and burial instructions told the Commission about funerals and burials they had attended, or had been barred from attending, that failed to respect the deceased’s beliefs and values. One person told the Commission:

My friend only saw his family for two hours a fortnight because they made him mentally unstable. They didn’t know him nor did they respect his wishes for his body to go to medical science and for no funeral to be held. The funeral was a farce with the most recent photo being more than ten years old. I knew there was no point trying to fight the family but my friend’s wishes were not respected and it doesn’t seem right that estranged families can do that.^[51]

5.54 Chapter 3 contains more accounts of this kind.^[52]

5.55 Christine Hennequin, Manager of Support and Development, Spiritual Health Victoria emphasised the fact that people evolve over the course of their lives, adopting different identities and moving through different phases of their spirituality, faith and personal relationships.^[53] In this context, it should be the deceased who decides what happens to their body when they die. As Marta Sandberg observed:

I do not feel that the family should have any rights enshrined in law to determine the funeral arrangements of a person … this is inviting problems. What happens when grown children have changed their religion away from their families? Or [a person] is part of a gay marriage that the parents or children strongly [disapprove] of? Or any form of divorce followed by a re-marriage and more children?^[54]

5.56 A representative from the Islamic Council of Victoria expressed support for binding instructions, noting that people of particular religions in Australia come from many different countries, each of which has different religious practices.^[55] In this context, it is useful for individuals to clearly articulate what they want to happen to their body when they die.^[56]

5.57 The Commission was told about a Muslim man who, shortly before his sudden death, told his brother that he wanted his parents to attend his funeral. As his parents lived overseas, this would have meant delaying his funeral beyond 24 hours after his death.^[57] The brother of the deceased man intended to carry out the deceased’s wishes, but other more senior community members objected to the wishes on religious grounds, and they buried the deceased within 24 hours without the deceased’s parents present. The person who recounted this story believed the deceased’s wishes should have been upheld.^[58]

5.58 Some community members observed that binding funeral and burial instructions were needed to prevent the bereaved from failing to carry out the wishes of the deceased in order to obtain a financial benefit. In its preliminary consultations, the Commission was told about an adult son who chose not to bury his mother in the plot she had bought, opting instead for a ‘quick cremation’.^[59] He then obtained a refund on the plot, allowing him to keep the money that was left over.^[60]

5.59 A cemetery trust representative told the Commission that they were familiar with this practice of ‘cashing in’ the right of interment. In a case recounted to the Commission, ‘The wish of a husband to be buried with his wife was changed in favour of a cheap cremation, thereby providing a significant financial saving to the deceased’s daughter.’^[61]

5.60 Some community members stated that carrying out the instructions of the deceased enables the bereaved to derive comfort from the fact that they are doing what the deceased would have wanted.^[62] Chris Hall, CEO, Australian Centre for Grief and Bereavement, told the Commission that clients had said they appreciated the fact that the deceased had left instructions because it relieved them of the burden of getting it wrong.^[63]

5.61 Relieving the bereaved of the responsibility of making the arrangements can be particularly important when people are struggling with the death of a loved one.

Chris Hall told the Commission:

People are significantly cognitively impaired in that immediate post-bereavement period … People regress and those who have English as a second language may revert to their mother tongue. There is a challenge around cognitive incapacity; immune systems depress; it is a trauma for many people. People’s decision-making and communication skills become markedly impoverished.^[64]

5.62 Similarly, the Victorian Bar stated:

Those involved in a funeral and burial dispute are often in the early stages of grief and are numbed and vacillating in stages of denial and anger. The anecdotal experience of assisting those involved in a funeral and burial dispute is that better outcomes tend to be achieved if a will or statement of wishes records the deceased’s wishes in relation to disposal of the body. This is often because the document can be used as an aid in the process of persuading the disputants to join together to give effect to the deceased’s wishes, and to accept them, rather than to seek to impose their personal views in the early stages of the grief process.^[65]

5.63 A broad range of people expressed support for binding funeral and burial instructions, including lawyers whose clients had expressed frustration that they could not leave binding instructions,^[66] Aboriginal people,^[67] LGBTI people,^[68] and cemeteries and crematoria industry bodies.^[69] Representatives from the Islamic Council of Victoria and the Chinese Cancer Society of Victoria were also in favour of binding instructions.^[70]

Responses against Option 3

5.64 The reasons people gave for opposing binding funeral and burial instructions have already been discussed in this chapter. In summary, people were of the view that:

• The funeral and burial are solely or predominantly for the bereaved, and thus the deceased’s wishes should act as a guide only.^[71]

• The funeral and burial are for both the bereaved and the deceased, and thus determining whose wishes should be given priority will depend on the circumstances.^[72]

• The instructions might be old or defective in some other way.^[73]

• As compared to the current position, under which the executor or likely administrator is granted near-absolute discretion, allowing people to leave funeral and burial instructions that could be challenged in a court would increase disputes and/or litigation.^[74]

Conclusions

5.65 In accordance with the considerable support for individual autonomy in Victoria today, the Commission considers that people should be allowed to leave funeral and burial instructions that are binding on the person who controls the disposal of their body.

5.66 A new Act should be introduced for this purpose. Though related, the subject matter of the Commission’s proposed Act is substantially different from existing legislation on wills and estate administration^[75] and on the disposal of bodies in cemeteries and crematoria.^[76] Amendments to existing legislation would not sit easily with the Commission’s proposed legislative regime. Further, a stand-alone Act on funeral and burial arrangements would be easier for people to find and understand.

5.67 While the majority of people the Commission consulted with supported this view, a significant number of people did not. The Commission’s proposed legislative regime addresses some of the frequently cited concerns of those who did not support this option.

5.68 While the Commission’s proposed legislative regime grants primacy to the wishes of the deceased where the deceased chooses to leave instructions, it also enables the person with the right to control the deceased’s funeral and burial arrangements to deviate from those instructions when appropriate.^[77] If a person does not hold strong views about their funeral and burial arrangements, they may elect not to leave instructions.

5.69 Where a person has not left instructions, the Commission considers that the person with the right to control the arrangements should be prohibited from making arrangements that are unlawful or inconsistent with the known beliefs and/or values of the deceased at the time of their death.

5.70 This prohibition is a variation on the common law which allows the executor or likely administrator to dispose of the deceased’s body in any manner they wish, provided it is not unlawful, wholly unreasonable or exercised in such a way as to prevent friends and family from expressing their affection for the deceased in a reasonable and appropriate manner.^[78]

5.71 The Commission is of the view that the common law concept of ‘wholly unreasonable’ is difficult to apply in the modern context, particularly because the common law does not provide a clear and definitive interpretation of what sort of funeral and burial arrangements would be considered ‘wholly unreasonable’.

5.72 Moreover, in the context in which it was applied, it is clear that making arrangements that were opposed to the wishes of the deceased was not considered to be ‘wholly unreasonable’. This is contrary to one of the primary considerations underlying the Commission’s proposed legislative regime, namely, enhancing the capacity of individuals to determine what happens to their body after they die.

5.73 The Commission is also of the view that preventing a family member from expressing their affection for the deceased may be appropriate in certain circumstances. For example, it would be appropriate to prevent an abusive or estranged family member from attending the deceased’s funeral where the deceased had strongly indicated that they wanted that person to be excluded. Accordingly, the Commission concludes that the common law restriction on preventing family and friends from paying their respects to the deceased should not be retained.

5.74 A more appropriate approach would be to prohibit the person with the right to control the funeral and burial arrangements from making arrangements that are inconsistent with the beliefs or values of the deceased at the time of their death. For example, arranging a religious funeral for an atheist deceased would be inconsistent with their beliefs and values at the time of their death. Similarly, denying a deceased transgender person’s identity by solely referring to them by their birth name and gender would be inconsistent with their beliefs and values at the time of their death.

5.75 The person with the right to control the deceased’s arrangements cannot be expected to adhere to beliefs and values that are not known to them. However, the Commission expects that the core beliefs and values of the deceased will commonly be known to the person with the right to control the deceased’s arrangements by virtue of their relationship to the deceased and the information they solicit when adhering to the obligation to seek the views of those close to the deceased at the time of their death.^[79]

Option 4: Allow people to appoint a funeral and burial agent

5.76 In some states in the United States of America, people are allowed to appoint an agent to control the disposal of their body when they die. Agents are bound by the instructions of the deceased, but where none are left, it is up to the agent to decide what happens to the body.^[80]

5.77 The Commission asked community members whether Victorians should be allowed to appoint an agent to control their funeral and burial arrangements.

Responses in favour of Option 4

5.78 In the Commission’s online survey, 40 per cent of respondents expressed support for allowing a person to appoint a funeral and burial agent to control the disposal of their body.^[81]

5.79 The Law Institute of Victoria and the Victorian Bar both supported this option.^[82] The Victorian Bar identified a number of situations in which a person may wish to appoint a funeral and burial agent, including when they:

• believe their executor or likely administrator is unlikely to carry out their funeral and burial wishes

• do not want to burden the executor or likely administrator with the task of arranging their funeral and burial

• anticipate a dispute and want to avoid it

• are in prison and are concerned that their estranged family members will not carry out their wishes.^[83]

5.80 The Victorian Aboriginal Legal Service supported this option, although it expressed concern that the role could be used by some to obtain an improper financial benefit.^[84] This concern is addressed by the Commission in the next chapter.^[85]

5.81 When expressing their support for this option, two community members likened it to people being able to appoint a substitute decision-maker for their end-of-life care.^[86] Molly Carlile said that people may choose a particular person to act as their executor because of their business acumen, but may nominate a different person, whom they trust, to act as their medical agent.^[87]

5.82 A group of consultees who identified as older feminist lesbians supported this option because it would allow them to ensure that someone other than their estranged next of kin could control their funeral and burial arrangements.^[88]

5.83 Sally Goldner, Executive Director, Transgender Victoria and Treasurer, Bisexual Alliance Victoria also supported this option.^[89]

5.84 Christy Hawker, a dispute resolution practitioner who has previously assisted Aboriginal families involved in funeral and burial disputes, observed that appointing an agent could be a way of appointing someone who could help the community work through their differences of opinion about a deceased person’s arrangements. An elder could be appointed as an agent, for example.^[90]

Responses against Option 4

5.85 The most common reason people gave for rejecting this option was that appointing another decision maker would complicate matters rather than simplify them.^[91] Professor Prue Vines told the Commission:

The Executor continues to be the best person to be charged with carrying out the burial instructions. The advantages of using the executor include the fact that an executor has already been appointed and a funeral director will already exist so there is no need to add another person to the people involved. For this reason I am not in favour of creating a class of ‘burial agents’ who are given instructions.^[92]

5.86 Russell Armstrong stated that deaths occur in different circumstances—sudden, protracted or suicide—and that each circumstance has its own subset of grief that may be further complicated by the involvement of an agent.^[93]

5.87 Both the Cemeteries and Crematoria Association of Victoria and the Geelong Cemeteries Trust told the Commission that allowing people to appoint an agent would be ‘a dangerous practice’ because the agent may make arrangements that are contrary to the wishes of the deceased and their family members, and thereby create more disputes.^[94]

5.88 Several people expressed concern that the appointment of an agent may exacerbate a funeral and burial dispute among family members.^[95] Kaz Gurney, Managing Lawyer, Goulburn Valley Community Legal Centre, told the Commission that the bereaved family would likely question why the agent had the power to make decisions over them, especially where those decisions were not culturally appropriate.^[96]

5.89 Another community member explained that appointing an independent agent who would be able to remain objective in the face of a dispute would be most suitable but that, in some cultures, this would not be realistic or possible because of the strong cultural emphasis on ‘keeping things within the family’.^[97]

Conclusions

5.90 The Commission concludes that the appointment of a funeral and burial agent should be an option available to people in Victoria. People who want to ensure their funeral and burial arrangements reflect their beliefs and values, even though they do not have specific arrangements in mind, could do this by appointing an agent.

5.91 There are various circumstances in which a person might find it desirable to appoint an agent. A single gay person who has been estranged from their birth family for many years may want to ensure a trusted friend is in charge of their funeral and burial arrangements, rather than their parents or siblings. Or a divorced person whose children do not speak to one another may want their sibling to organise their funeral and burial, rather than their disaffected children.

5.92 As the law stands, this could be achieved by appointing the trusted friend or sibling as the executor of the relevant person’s will. However, the trusted friend or sibling would then also be responsible for administering the relevant person’s estate.

5.93 The Commission considers that the task of controlling a person’s funeral and burial arrangements is different from the task of controlling someone’s assets after they die. A person who is suited to one task may not be suited to the other, and the law should reflect this.

Alternative options

5.94 The Commission invited community members to propose alternative options for reform to those outlined above.

5.95 Among the options put forward were:

• requiring the person with the right to control the funeral and burial arrangements to do what the deceased would have wanted

• expanding the role of advance care plans to incorporate funeral and burial wishes

• establishing an independent register for funeral and burial instructions.

Responses

5.96 Two community members suggested that ‘the best interests of the child’ test could be adapted to the situation under consideration so that the person with the right to control the deceased’s funeral and burial arrangements is required to do what is in ‘the best interests of the deceased’.^[98] The Commission understands this to mean that the person would be required to do what they believe the deceased would have wanted.

5.97 One of these people stated that where a deceased had expressed wishes as to how they wished to be disposed of, then carrying out those wishes would be in ‘the best interests of the deceased’.^[99] However, the other person expressed the view that what was in ‘the best interests of the deceased’ might not necessarily be what the deceased thought they wanted.^[100] This would be the case where the deceased had not understood how their wishes would impact on someone close to them and would have made a different decision had they understood.

5.98 Some people suggested that the scope of advance care plans could be extended so that they also covered funeral and burial wishes.^[101] At present, people use advance care plans to set out their values and wishes in relation to their personal and health care in the event they are no longer able to make decisions for themselves. People are often assisted to make advance care plans by health care and other professionals. Advance care plans require health care professionals to give due consideration to the patient’s wishes but they are not binding.^[102]

5.99 One proponent of this approach, Molly Carlile, told the Commission that there ought to be a cultural shift in palliative care so that carers see it as their duty to address all of a patient’s personal needs and that the duty to the patient extends until the body is disposed of. This would mean, for example, that carers might wash and prepare the dead body for the family, and provide support to the family when they view the body. In this context, it would make sense for advance care plans to incorporate all of a person’s wishes regarding the treatment of their body up to the moment of their disposal.^[103]

5.100 A cemetery trust stated in its submission that an independent register for funeral and burial instructions should be established:

we believe Victorians should have the right to self-determination regarding what happens to their body when they die. To that end, we welcome the initiative to develop a mechanism that would facilitate this and enshrine it in law. The creation of a register, independently administered, in which people could lodge their wishes and include the necessary means for their legal plans to be financed, is one such mechanism for these wishes to be honoured.

… Anyone who wanted to register their wishes (and who had the means to pay for those wishes) could lodge their plan via the register, thereby making those wishes binding.^[104]

Conclusions

5.101 The Commission acknowledges the contribution of those who submitted alternative options for reform. Each of them gave thoughtful consideration to the issue of funeral and burial wishes.

5.102 Having regard to ‘the best interests of the deceased’ when making funeral and burial arrangements is a sound starting point that encourages people to consider what the deceased would have wanted. However, the Commission considers it problematic because it would require a retrospective examination of what the deceased would have wanted during their lifetime, and the bereaved may have different views on what the deceased would have wanted.^[105] In these circumstances, it would be difficult to determine whose views should prevail.

5.103 Advance care plans empower people to record their wishes in relation to their medical treatment and end-of-life care. Patients usually complete advance care plans with the help of health care professionals such as nurses or social workers. Thus, extending the role of these plans to incorporate funeral and burial instructions is a reasonable suggestion.

5.104 However, as explained at [5.98], advance care plans are not legally binding. It is beyond the scope of this inquiry to consider changing the legal status of advance care plans.^[106] As the Commission is of the view that people should be able to leave binding funeral and burial instructions, it may cause confusion to recommend that instructions be incorporated into an otherwise non-binding document.

5.105 In addition, advance care plans are most often completed by hospital patients or nursing home residents who are asked and assisted to complete such plans. However, people outside of a healthcare setting may wish to leave funeral and burial instructions, and a more universal scheme for leaving these instructions would be appropriate.

5.106 The Commission’s conclusion in this regard accords with the views of representatives from Barwon Health Community Palliative Care who told the Commission that advance care plans are about a person’s medical decisions and therefore may not be an entirely appropriate location for funeral and burial instructions.^[107]

5.107 Under the Commission’s proposed legislative regime, patients wanting to leave funeral and burial instructions along with an advance care plan would be able to complete a separate form for their funeral and burial instructions, and the Commission would welcome an initiative of this kind.

5.108 Establishing an independent register for funeral and burial instructions and requiring people to register their instructions in order for them to be binding has some advantages, such as the high level of certainty and clarity established through registration.

5.109 However, a registration requirement may operate as an administrative hurdle that would unfairly reduce the number of people who leave binding instructions. Such a requirement may be particularly challenging for marginalised Victorians, including people from Aboriginal, culturally and linguistically diverse and rural communities. It may also be challenging for terminally ill people in care facilities who cannot easily complete the registration process.

5.110 Although the Commission appreciates the alternative options put to it by community members, they do not appropriately balance the requirements of clarity, certainty and flexibility propounded in Chapter 4.

Recommendation

1 Victoria should introduce an Act that:

a) allows people to leave binding funeral and burial instructions and/or appoint a funeral and burial agent and

b) where no binding funeral and burial instructions have been left, allows the person with the right to control the funeral and burial arrangements of the deceased to make any arrangements, provided they are not:

(i) unlawful or

(ii) inconsistent with the known beliefs and/or values of the deceased at the time of their death.

1. Smith v Tamworth City Council (1997) 41 NSWLR 680, 694; Keller v Keller (2007) 15 VR 667 [6]; Frith v Schubert [2010] QSC 444. See also Mourish v Wynne [2009] WASC 85; Re Dempsey (Unreported, Supreme Court of Queensland, Ambrose J, 7 August 1987); Re An Application by the Tasmanian Aboriginal Centre Inc [2007] TASSC 5.

   ↑

2. Leeburn v Derndorfer (2004) 14 VR 100, 104.

   ↑

3. Milanka Sullivan v Public Trustee for the Northern Territory of Australia (Unreported, Supreme Court of the Northern Territory, Gallop AJ,

   24 July 2002) 18 approving Grandison v Nembhard (1989) 4 BMLR 140.

   ↑

4. Smith v Tamworth City Council (1997) 41 NSWLR 680, 694.

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5. See Appendix C for survey questions.

   ↑

6. Submission 5 (Name withheld).

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7. Submission 29 (Maurice Blackburn Lawyers).

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8. Consultation 26 (Jewish Community Council of Victoria).

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9. Submission 29 (Maurice Blackburn Lawyers).

   ↑

10. Consultation 18 (Anne Cregan, Gilbert + Tobin).

    ↑

11. Submission 29 (Maurice Blackburn Lawyers); Consultation 18 (Anne Cregan, Gilbert + Tobin).

    ↑

12. Submission 30 (State Trustees).

    ↑

13. Submission 11 (Name withheld). Individual autonomy is discussed in more detail at [4.3]–[4.10].

    ↑

14. Consultation 13 (Spiritual Health Victoria). See [4.11]–[4.16] for further discussion on this point.

    ↑

15. Submission 36 (Law Institute of Victoria).

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16. Ibid.

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17. Ibid.

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18. Submissions 1 (Professor Prue Vines), 16 (Professor Phillip Hamilton).

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19. Submission 16 (Professor Phillip Hamilton).

    ↑

20. R v Price (1884) 12 QBD 247, 250.

    ↑

21. For marriages entered into between 2000 and 2002: Shail Jain, Lifetime Marriage and Divorce Trends, Australian Social Trends cat.no. 4102.0 (Australian Bureau of Statistics, 2007).

    ↑

22. Victorian Multicultural Commission, 2011 Census: A Snapshot of our Diversity <http://www.multicultural.vic.gov.au/population-and-migration/victorias-diversity/2011-census-a-snapshot-of-our-diversity>.

    ↑

23. Takamore v Clarke [2012] NZSC 116 (18 December 2012) [156].

    ↑

24. Ibid [160]–[162].

    ↑

25. Submissions 1 (Professor Prue Vines), 11 (Name withheld), 14 (John Mahony), 16 (Philip Hamilton); Consultation 18 (Anne Cregan,

    Gilbert + Tobin).

    ↑

26. Consultation 18 (Anne Cregan, Gilbert + Tobin).

    ↑

27. Consultations 13 (Spiritual Health Victoria), 18 (Anne Cregan, Gilbert + Tobin).

    ↑

28. Submission 9 (Marta Sandberg).

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29. Citation withheld for privacy reasons.

    ↑

30. Consultations 13 (Spiritual Health Victoria), 21 (Barwon Health Community Palliative Care), 22 (Annie Whitlocke), 23 (Natural Death Advocacy Network), 25 (Molly Carlile, Palliative Care Victoria).

    ↑

31. Consultations 13 (Spiritual Health Victoria), 21 (Barwon Health Community Palliative Care), 23 (Natural Death Advocacy Network).

    ↑

32. Consultation 25 (Molly Carlile, Palliative Care Victoria).

    ↑

33. Consultation 7 (Matrix Guild Victoria Inc).

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34. Submissions 11 (Name withheld), 13 (Name withheld), 18 (Name withheld), 22 (Confidential), 23 (Confidential), 35 (Victorian Bar), 36 (Law Institute of Victoria), 39 (Victorian Aboriginal Legal Service).

    ↑

35. Submissions 35 (Victorian Bar), 36 (Law Institute of Victoria), 39 (Victorian Aboriginal Legal Service).

    ↑

36. Submission 37 (Victorian Gay and Lesbian Rights Lobby); Consultations 7 (Matrix Guild Victoria Inc), 16 (Transgender Victoria).

    ↑

37. Submission 37 (Victorian Gay and Lesbian Rights Lobby).

    ↑

38. See [3.45]–[3.52] for further discussion of disputes involving families of LGBTI deceased.

    ↑

39. Consultation 16 (Transgender Victoria).

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40. Consultations 5 (Australian Centre for Grief and Bereavement), 18 (Anne Cregan, Gilbert + Tobin); Submission 30 (State Trustees).

    ↑

41. Consultation 18 (Anne Cregan, Gilbert + Tobin).

    ↑

42. Submission 30 (State Trustees).

    ↑

43. See [4.17]–[4.20] for further discussion of the need to bury the body without delay.

    ↑

44. Consultation 26 (Jewish Community Council of Victoria).

    ↑

45. See [6.195]–[6.198]

    ↑

46. See [6.241]–[6.248].

    ↑

47. Victorian Law Reform Commission, Funeral and Burial Instructions Survey (2015) <https://www.surveymonkey.com/r/funerals>.

    ↑

48. Submission 13 (Name withheld).

    ↑

49. Submission 10 (Name withheld).

    ↑

50. Consultation 28 (Marie Brittan).

    ↑

51. Survey respondent 224.

    ↑

52. See [3.13]–[3.19],

    ↑

53. Consultation 13 (Spiritual Health Victoria).

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54. Submission 9 (Marta Sandberg).

    ↑

55. Consultation 17 (Islamic Council of Victoria).

    ↑

56. Ibid.

    ↑

57. For Muslims it is important for a funeral and burial to take place within 24 hours of death occurring. However, a funeral and burial may be extended beyond this period if there are extenuating circumstances. Consultation 17 (Islamic Council of Victoria).

    ↑

58. Citation withheld for privacy reasons.

    ↑

59. A quick cremation, also known as a ‘no service cremation’ or ‘cheap cremation’, is a cremation without a chapel or service: Submission 28 (Confidential).

    ↑

60. Preliminary consultation with Australian Funeral Directors Association (4 August 2015).

    ↑

61. Submission 28 (Confidential).

    ↑

62. Submission 20 (Name withheld); Consultation 8 (Council on the Ageing).

    ↑

63. Consultation 5 (Australian Centre for Grief and Bereavement).

    ↑

64. Consultation 5 (Australian Centre for Grief and Bereavement)

    ↑

65. Submission 37 (Victorian Gay and Lesbian Rights Lobby).

    ↑

66. Submission 16 (Professor Phillip Hamilton); Consultation 24 (Rachael Grabovic, Rigby Cooke Lawyers).

    ↑

67. Consultations 4 (Victorian Aboriginal Community Services Association Ltd), 15 (Helen Bishop).

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68. Submission 37 (Victorian Gay and Lesbian Rights Lobby); Consultations 7 (Matrix Guild Victoria Inc), 16 (Transgender Victoria);

    Survey respondent 114.

    ↑

69. Submissions 27 (Cemeteries and Crematoria Association of Victoria), 25 (Confidential).

    ↑

70. Consultations 17 (Islamic Council of Victoria), 19 (Chinese Cancer Society of Victoria).

    ↑

71. See [5.8], [5.33]. See also [4.12].

    ↑

72. See [5.31]–[5.32], [5.35]–[5.36].

    ↑

73. See [5.13], [5.30].

    ↑

74. See [5.9]–[5.10], [5.12].

    ↑

75. Wills Act 1997 (Vic); Administration and Probate Act 1958 (Vic).

    ↑

76. Cemeteries and Crematoria Act 2003 (Vic).

    ↑

77. See Recommendation 17.

    ↑

78. Leeburn v Derndorfer (2004) 14 VR 100, 104; Smith v Tamworth City Council (1997) 41 NSWLR 680; Milanka Sullivan v Public Trustee for the Northern Territory of Australia (Unreported, Supreme Court of the Northern Territory, Gallop AJ, (24 July 2002), 18. See [2.3]–[2.11] for further discussion of the common law in Australia.

    ↑

79. Where the deceased did not leave instructions, the Commission is of the view that the person with the right to control the arrangements should be required to seek the views of those known to be close to the deceased at the time of their death where it is reasonable in the circumstances to do so. See [6.241]–[6.248] and Recommendation 21.

    ↑

80. See eg Tex Code Ann § 711.002(a) (2015); 12 Del Code Ann § 265 (2016); Minn Stat § 149A.80(2) (2016). See also Appendix E: Alaskan Disposition Document.

    ↑

81. Victorian Law Reform Commission, Funeral and Burial Instructions Survey (2015) <https://www.surveymonkey.com/r/funerals>.

    ↑

82. Submissions 35 (Victorian Bar), 36 (Law Institute of Victoria).

    ↑

83. Submission 35 (Victorian Bar).

    ↑

84. Submission 39 (Victorian Aboriginal Legal Service).

    ↑

85. See [6.63]–[6.64].

    ↑

86. Consultation 25 (Molly Carlile, Palliative Care Victoria); Survey respondent 231.

    ↑

87. A person may appoint a medical agent under an enduring power of attorney (medical treatment): Medical Treatment Act 1988 (Vic) s 5A.

    ↑

88. Consultation 7 (Matrix Guild Victoria Inc).

    ↑

89. Consultation 16 (Transgender Victoria).

    ↑

90. Consultation 3 (Christy Hawker).

    ↑

91. Submissions 1 (Professor Prue Vines), 29 (Maurice Blackburn Lawyers), 30 (State Trustees), 34 (Ballarat General Cemeteries Trust); Consultations 14 (Rumbalara Aboriginal Co-operative and Goulburn Valley Community Legal Centre), 18 (Barwon Health Community Palliative Care).

    ↑

92. Submission 1 (Professor Prue Vines).

    ↑

93. Consultation 21 (Barwon Health Community Palliative Care).

    ↑

94. Submissions 24 (Geelong Cemeteries Trust), 27 (Cemeteries and Crematoria Association of Victoria).

    ↑

95. Consultation 14 (Rumbalara Aboriginal Co-operative and Goulburn Valley Community Legal Centre).

    ↑

96. Ibid.

    ↑

97. Consultation 12 (Aldo Taranto).

    ↑

98. Under section 5 of the Children Youth and Families Act 2004 (Vic), relevant actors must determine whether a decision or action is in the best interests of the child.

    ↑

99. Consultation 16 (Transgender Victoria).

    ↑

100. Consultation 21 (Barwon Health Community Palliative Care).

     ↑

101. Consultations 21 (Barwon Health Community Palliative Care), 25 (Molly Carlile, Palliative Care Victoria).

     ↑

102. Consultation 27 (Royal Children’s Hospital, Paediatric Palliative Care Program); Department of Health and Human Services, Government of Victoria, Advance Care Planning and the Law <https://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/end-of-life-care/advance-care-planning/acp-law>.

     ↑

103. Consultation 25 (Molly Carlile, Palliative Care Victoria).

     ↑

104. Submission 28 (Confidential).

     ↑

105. See [6.145]–[6.148].

     ↑

106. The Victorian Government stated in June 2016 that it would introduce legislation allowing people to leave binding advance care directives: Department of Health and Human Services, Government of Victoria, Simplifying Medical Treatment Decision Making and Advance Care Planning (2016). As at 31 August 2016, the Government had not introduced such legislation.

     ↑

107. Consultation 21 (Barwon Health Community Palliative Care).

     ↑