Trick or Treat

Trick or Treat....

A few years ago, at 6 p.m. on Mischief Night, I took a telephone call from a woman who found Barron & Posternock, LLP on the internet. The caller, a very nice but distraught woman from Atlantic County, explained that she and her mother were upset and wanted to know about professional malpractice. I asked what kind of professional malpractice to which she replied, “Undertaker malpractice”. After listening to this poor woman’s story, I was fairly depressed but soon realized that our conversation was not just about a tricky legal issue, but presented a great opportunity to treat our readers to a unique and timely legal issue: undertaker malpractice. What better topic for a Halloween blog item?

The caller’s story was sad and may be fairly common. She was estranged from her father who had passed away without her knowledge. Her father’s paramour, without notice to the family, arranged for the funeral and had the body cremated, despite her father’s specific desire to be buried in the normal fashion. To make matters worse, the paramour had not retrieved the remains and had stiffed the funeral home with a bad check.

Notwithstanding this vile behavior on the part of the paramour, the caller seemed more perturbed at the funeral home and was incensed that she nor any member or her family was not contacted about the handling of her father’s remains. As she said, “Why didn’t they contact us? Don’t they have an obligation to contact family members? What can we do about this?”

My initial impression is that undertakers, like almost every type of business, have an obligation to act reasonably. If someone who has an obvious connection to the deceased said that he/she wished to be cremated and that there was no next of kin, the undertaker could reasonably rely upon such representations in the absence of obvious evidence to the contrary. This would especially be true if that person was paying for the funeral arrangement. This general impression was not received with much enthusiasm by the caller, so I hopped onto the internet and found a statute, N.J.S.A. 45:7-95, that provided a precise answer to the question of what is an undertaker’s duty. My instincts were right on. The statute, only enacted in 2003, provides that a funeral director may permit the “funeral, disinterment or disposition of human remains on the written authorization of a person who claims to be, and is believed to be, a person who has the right to control the funeral, disinterment or disposition as provided by [law]”. The statute goes on to say that a funeral director shall not be liable for acting pursuant to such a written authorization “unless it had reasonable notice that the person did not have the right to control the funeral arrangements.” Finally, the statute said that if there are no living relatives, a funeral director may rely on the written authorization of any person “acting in good faith on behalf of the decedent.”

The statute references N.J.S.A. 45:7-22, which provides specific rules about who has the authority to make funeral arrangements. A person appointed in a will to make funeral arrangements has top priority, followed by a surviving spouse or domestic partner, the majority of any surviving children, any surviving parents, the majority of any brothers and sisters, and any other surviving next of kin. Finally, in the absence of surviving relatives, a person “acting on behalf of the decedent” may authorize the disposition of the remains.

There are no reported cases interpreting the statute, which suggests that embalmers and funeral directors malpractice is not going to be a hot practice area. Although there can be some debate about how much inquiry a funeral director must make, I believe that in most instances, unless there is specific knowledge on the part of the funeral director, a funeral director will be justified in accepting the written authorization of an interested party who claims that there are no known relatives.
Well, I hoped to “bury” this topic in our blog and web site, but I know that the spiders of the giant search engines will crawl all over it and send it into the web. Some things are legal zombies that never die.
--Tom Barron

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