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 here on the New Jersey Cemetery Board’s website.

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.

When it comes to planning a funeral and authorizing funeral arrangements, executors, guardians and people holding powers of attorney (POA) all play unique roles.

Power of Attorney

A Power of Attorney (POA) is a written authorization appointing a person to represent or act and make decisions on another individual’s behalf while they are alive. There are different types of Power of Attorney documents that grant different rights and privileges.  One type is a financial power of attorney for making financial decisions and another type is a health care power of attorney for making medical decisions.  Consult an attorney for further information on the different types of Power of Attorney appointments, the rights and when the role takes effect.

In most financial Power of Attorney documents, the appointed person has the ability to preplan and prepay a funeral based on the rights and privileges assigned.  However, the appointed person does not have the right to make funeral arrangements for the individual following their death.  A Power of Attorney document and the appointed person’s authority becomes null and void upon the individual’s death.

Guardians

A legal guardian is a person or agency appointed to act on behalf of a minor or an incapacitated adult to assure that the individual’s rights are protected and health, safety, and financial needs are met. 

A guardian may or may not have the right to make funeral arrangements for the individual following their death.  The right to control the individual’s funeral depends on the powers legally assigned to the Guardian.  Consult an attorney for further information on a guardian appointment.

Executors

An executor is someone appointed in a Will, or by a court, to take care of an individual’s financial obligations after death.  The executor has the responsibility to distribute estate property and pay estate debts and expenses according to the terms in the Will. 

Sometimes individuals believe that an executor of a Will or estate can plan and make decisions for the decedent’s funeral.  However, in New Jersey the executor of a Will does not automatically have the right to plan or control the funeral or decide on burial or cremation of the decedent, unless specific wording is included in the Will naming the executor as the person appointed to carry out those duties.  If another individual is appointed in the Will with the right to control the deceased’s funeral and disposition, the Executor is responsible to inform the individual of their appointment and advising them of the funds available for funeral expenses. 

Consult an attorney for further information on an Executor appointment in a Will.