Who decides, and which decisions cannot wait

Find any written wishes, work out who has the legal right to decide, and sort every decision into now, this week or later, so only the urgent ones are made in the first day.

1. Look for written wishes and prepaid plans first Understand

Look for what the person wrote down before deciding anything that can wait. In the two states this chapter uses as examples, the person's own written directions come ahead of everyone else, including the closest family. Terms in this chapter are in the glossary.

• Washington, as an example. A person may control the disposition of their own remains without anyone's consent, and a written document signed in the presence of a witness is enough to authorize it. Where arrangements were prepaid, or filed with a licensed funeral establishment or cemetery, the survivors may not cancel or substantially revise them (RCW 68.50.160). Varies by state
• California, as an example. The state's Cemetery and Funeral Bureau says written directions that are clear, complete and fully funded are protected from change by others, and that a person may name someone to make the decisions (California Cemetery and Funeral Bureau, Consumer Guide to Funeral & Cemetery Purchases). Varies by state

Other states set other conditions on what makes written directions binding. Ask the funeral director, or the state's funeral board, what the law where the death happened requires.

Where to look

Wishes turn up in more than one kind of paper. Look for each of these, and write where you looked, even when you find nothing:

• A note or letter of instruction at home: a desk, a file box, a folder of important papers. AARP's checklist starts with a letter of instruction or a prepaid plan (AARP, What to Do When a Loved One Dies).
• A prepaid funeral contract, or cemetery papers such as a deed to a plot. The funeral home or cemetery named on them has a copy and can say what was arranged and paid.
• A designated agent form. A short signed document naming someone to make these decisions (next section).
• Copies with family, a friend or an attorney. The FTC tells people planning ahead to give copies to family and to their attorney (FTC, Planning Your Own Funeral), so ask the people closest to the person whether they were given one.
• A will. Look, but do not wait for it. The FTC says a will may not be read until after the funeral, and Funeral Consumers Alliance says wills are often read too late (FCA, Assigning an Agent to Control Disposition). Hand a will to the person named as executor; Information and papers covers that.
• A safe deposit box. The FTC and FCA both tell planners not to keep the only copy there (FCA, Four-Step Funeral Planning), so check the home first.
• A donor registration, and, for a death in military service, the person named on the Defense Department's DD Form 93 (next section).

Write each result on the found sheet: written wishes and where, a prepaid plan and with whom, a donation registration, and who has the right to decide and how you know.

Spoken wishes and plans that do not fit

Spoken wishes guide the person who decides. Whether they bind anyone is a question of the state's law, and this manual does not answer it. Ask the authority

Written wishes can also ask for something the family cannot do. FCA's state-by-state summary reports that a designated agent is not obliged in any state to carry out wishes that are highly impractical, illegal or financially burdensome. If a note asks for something that looks out of reach, write it on the decisions sheet as a decision with its question ("Scatter at the lake: allowed?") rather than treating it as settled either way. Burial, cremation and other choices covers what the place and the provider allow.

2. Who has the right to decide

The right of disposition is the legal right to decide what happens to a person's body after death: burial or cremation, where, and through which provider. Each state sets who holds it, in an order written in its law. The order has three layers, in the same sequence in both example states:

1. The person's own written directions, where the state honors them (section above).
2. A designated agent, someone the person named in a signed document to make these decisions.
3. Next of kin, in an order set by the state: usually a spouse, then adult children, parents and siblings, with the details varying.

Here are the two example states side by side, each from its own official text. They are examples, not the rule where you are. Varies by state

Three things the table shows that carry over to other states as questions to ask:

• A health care agent may or may not count. California places an agent under a health care power of attorney ahead of the spouse. Washington's order names a designated agent for disposition instead. FCA's summary says Arizona puts the spouse before a health care agent. Ask whether a health care power of attorney covers decisions after death in your state.
• "A majority of" matters when there are several children or siblings. In both example states a group of equals decides by majority. FCA's summary gives other rules elsewhere: in Ohio equal next of kin must all agree; in Texas and Wyoming one of them may act.
• The right comes with a cost. Washington's statute passes the duty to pay reasonable costs along with the right, and makes kin of the same degree and the estate jointly liable. Paying and benefits covers who pays.

A designated agent

A designated agent (some states say "agent to control disposition") is the person someone names, in advance and in writing, to make these decisions instead of the next of kin. Naming one is possible in most states, and the form differs from state to state:

• Washington: a written, dated document signed before a witness.
• New York: the state's "appointment of agent to control disposition of remains" form or a similar one, signed by the person and the agent and witnessed by two people (New York Attorney General, Funeral Services).
• Hawaii: written, notarized, and substantially following the statutory form (Hawaii Department of Commerce and Consumer Affairs, Planning Ahead).

If you find a document naming an agent, give a copy to the funeral provider and ask whether it meets the state's requirements. Writing your own is Your arrangements file.

A right that is not used can pass on

Some states end a person's right if they do not act on it within a set time, and it passes to the next in line. FCA's summary gives three examples: Alabama, two days after notification (or three days after the death); Tennessee, 72 hours after notification (or a week after the death); Mississippi, five days after notification or ten days after the death, whichever is earlier. Varies by state If the person with the right is unreachable or does not want to act, ask the funeral director what the state's law provides.

Telling the provider who decides

The funeral provider needs to know whose signature it is taking. Permission to embalm and the authorization for cremation come from the person with the right to decide, and whoever signs the contract is the person responsible for paying it (Paying and benefits). Oregon's rule, as an example, requires written or documented oral permission for embalming from the person with the right to control disposition (Home Funeral Alliance, Oregon guide). Say at the first call who that is and how you know: "I am her only child; there is no spouse and no agent," or "We are three children and we will decide together."

When family members disagree, the order in the state's law is still the starting point; speaking first is not part of it. Two practical steps keep the urgent decisions moving: tell the funeral director there is a disagreement, so the home knows to wait for the person with the right, and agree on body care (refrigeration) while the rest is talked through. Sharing the work covers dividing the work so the disagreement does not stall everything else.

3. What cannot wait

Very few decisions have to be made in the first day. Those that do have a clock set by someone else: the state, the provider, the medical examiner, a faith tradition or a donation program. The decisions sheet marks them Now.

Body care: refrigeration, embalming and the time limits

Some states require a body to be refrigerated or embalmed once a set time has passed. Three examples, each from official text or a statute quoted in full:

• California: embalming is not required by law; if a body is not embalmed, the funeral establishment must refrigerate it once it has been held over 24 hours. The same guide says home death care does not require embalming or refrigeration. Varies by state
• Oregon: remains held longer than 24 hours must be embalmed or refrigerated at 36 °F or below until disposition. The rule applies to funeral service practitioners. Varies by state
• Alabama: disposition within 48 hours after death, or after release by the coroner or medical examiner, unless the body is embalmed with permission or kept refrigerated (Home Funeral Alliance, Alabama guide). Varies by state

Nevada's code sets a similar 24-hour rule for crematories, funeral establishments and direct cremation facilities (Nevada Administrative Code 451.015). Read these as rules on the provider. They are why a funeral home asks about body care on the first day: once the body is in its care, the clock is the home's to meet, and it will offer refrigeration or embalming to meet it.

Embalming needs permission

Embalming is the chemical treatment of a body to slow decomposition for a time. Under the federal Funeral Rule, a funeral provider may charge for embalming only if the law requires it in the circumstances, or if it got prior approval from a family member or other authorized person, with a narrow exception for a family that could not be reached. The provider has to disclose that embalming is not required by law except in certain special cases (16 CFR 453.5). Federal rule

The FTC's consumer page adds that direct cremation and immediate burial do not require embalming, that refrigeration is often an acceptable alternative, and that many homes require embalming for a public viewing. It suggests asking about a private family viewing without embalming (FTC, The FTC Funeral Rule). So when the person collecting the body asks "May we embalm?", it is a decision you can decline or put off. A useful answer when nothing else is decided: "Not yet. Please refrigerate until we decide on the arrangement." Goods, prices and the statement covers embalming as a purchase.

Waiting periods and clearance before cremation

Some states set conditions before a cremation can take place, which can push its date past the first day or two:

• Florida: cremating a body before 48 hours after death is unlawful (Florida Statutes 872.03). Varies by state
• Virginia: a body of someone who died in Virginia may not be cremated or buried at sea until a medical examiner certifies that no further inquiry is needed, whatever the cause of death; the medical examiner's fee is paid by the applicant (Code of Virginia 32.1-309.3). Varies by state

These need no decision from you; they explain the date a provider gives you.

Timing set by faith

Some traditions ask for burial very soon after death, and for no embalming. The family's own clergy or community sets the practice; the descriptions below are each body's own, given as examples. Convention

• Conservative Judaism. The Rabbinical Assembly's guide says burial should take place "as soon as possible, preferably within 24 hours of death." It allows delays for legal reasons, transporting the body, close relatives travelling long distances, and avoiding Shabbat or a holy day. It says to consult the rabbi first, and that embalming is not done unless civil law requires it (Rabbinical Assembly, Guide to Jewish Funeral Practice).
• Muslim practice at two US mosques. The All Dulles Area Muslim Society describes swift burial, ideally within 24 hours, and discourages embalming and autopsy unless the law requires them (ADAMS, Islamic Funeral Traditions FAQ). The Islamic Center of America in East Orange, New Jersey, says the funeral prayer is ideally held within 24 hours, with exceptions for an unexpected death (Masjid Ahlis Sunnah, Funeral (Janaazah)).

If the person kept a tradition, call its leader or community before you sign anything with a provider. The leader can say what has to happen first and may know providers who follow the tradition. Where faith timing meets a medical examiner's investigation, the office's release still comes first; tell the office about the tradition when you call.

4. What can wait, and the decisions sheet

Most decisions can wait days or weeks once the body is in a provider's care: the marker, the ashes and the thank-you notes on any route. The service and the notice depend on the route. With a memorial after a direct cremation or direct burial, they can wait weeks. With a funeral with the body present, the date is set with the provider soon, because the provider keeps the body until the service.

• The service. With a direct cremation or a direct burial, the body is cremated or buried soon after death, with no viewing and no embalming, as the FTC defines them (FTC, Types of Funerals). A memorial service, without the body, can follow at any time. A funeral with the body present cannot wait that long: its date is set with the provider early, around refrigeration and any faith timing. AARP quotes a funeral director saying a memorial "can be held at any time, any place," and gives an example of a Jewish burial within 24 hours followed nine months later by a celebration of life (AARP, How to Plan a Memorial Service). Family's choice This week for a funeral, Later for a memorial
• The ashes. The FTC says cremated remains may be kept, buried, placed in a niche or scattered. None of that has to be settled before the cremation. Later
• The marker or headstone. A cemetery sets its own rules for markers (Burial, cremation and other choices). Later
• The obituary or notice. It carries the service time and place, so it follows the service plan (Notices and telling people): this week for a funeral with the body present, and for a memorial weeks later it can wait for the memorial plan. This week for a funeral, Later for a memorial
• The thank-you notes. AARP suggests asking someone to keep a list of well-wishers for them. Later

If you are choosing between a funeral with the body present soon and a direct arrangement now with a gathering later, that choice is This week, not today, as long as the body is refrigerated. The service or gathering plans the service.

The decisions sheet: now, this week, later

The decisions sheet holds every decision in one list with four facts each:

Mark a decision provisional when it is made but depends on something not yet confirmed, such as a provider's rules or a family member's agreement, and open when it still needs a person or a fact.

5. The state examples side by side Go deeper

6. See it: a handwritten note and a family that disagrees See it

Free sources behind this chapter:

• RCW 68.50.160: Washington's whole statute on the right to control disposition, short enough to read in five minutes.
• California Cemetery and Funeral Bureau, Consumer Guide: a state regulator's plain-language guide, including who decides and home death care.
• FCA, Assigning an Agent to Control Disposition: a compiled 50-state summary of agent rules and the order of kin; confirm each entry with the state.
• FTC, The FTC Funeral Rule: the consumer summary of the rule, including embalming permission.

7. Practice: the search and the decisions sheet Practice

Minimum: the found sheet says who decides and how you know, and the decisions sheet lists the decisions marked "now," each with a status. Time: about 30 minutes, plus the search. Materials: the person's papers, a phone, the found sheet and the decisions sheet.

1. Search for written wishes, using the list in where to look. Write each place on the found sheet, with what you found or "nothing."
2. Write who has the right to decide and how you know: "only child; widowed; no agent found," or "spouse, per the funeral director." If you do not know, write the question and who will answer it.
3. Ask the provider or facility what has to be decided today. Add each answer to the decisions sheet as "now."
4. Add the decisions that can wait, each as this week or later: the service, the ashes or the grave, the marker, the notice.
5. Give each decision a status: decided, provisional or open, and a name in the who-decides column.
6. If there is a faith tradition, write "call the faith leader" as a "now" decision, and make the call before signing.

8. Your arrangements Your arrangements

The box below reads your setup: your role, the state and what you know about written wishes.

9. Check your work Check your work

Criteria

• Does the found sheet list every place you looked, including places where you found nothing?
• Does the found sheet name who has the right to decide, and say how you know or who will tell you?
• Has the funeral provider been told who decides?
• Is every "now" decision on the sheet decided or provisional, with a name in who decides?
• Is embalming either declined, put off with refrigeration, or agreed to as a choice?
• If there is a faith tradition, was its leader called before anything was signed?
• Does every other decision have a "when"?

Worked example

Sam's sheets (fictional example) meet each criterion. The found sheet lists the desk (the note), the file box (no agent form, no prepaid plan) and the driver's license (no donor registration). It says "Sam, only child; Ellen widowed; no agent found." Sam told the hospice nurse and will tell the provider at the first call. The two "now" rows have names and statuses: body care is decided (refrigeration, no embalming) and the provider is open but has a plan. Sam's sheet records no faith tradition, so there is no leader to call. The gathering and the ashes are "later." The one open question about the note, a witness, does not change who decides.

The Marsh family's sheet (fictional example) meets them differently: who decides is a question with a named person to answer it, and the "now" rows are decided anyway, because refrigeration does not need the disagreement settled.

Common mistakes

• Waiting for the will before deciding anything. A will may not be read until after the funeral; look for other papers first.
• Assuming the person who called the funeral home has the right to decide. The state's order decides that, not who arrives first.
• Agreeing to embalming at the removal because it was asked as a routine question. It needs permission, and refrigeration is often an alternative.
• Putting every decision in the "now" column. Only the ones with a clock set by someone else belong there.
• Signing a contract before calling the faith leader, when a tradition sets the timing or the provider.

What is still unresolved

This chapter names who decides and sorts the decisions. It does not settle a dispute over the right to decide or which state's law applies; the funeral director, the state funeral board or an attorney does. The facts and papers that the death certificate and later steps need are Information and papers. Choosing the provider is Funeral homes and your rights, and choosing burial, cremation or another option is Burial, cremation and other choices.

10. Knowledge check and scenario

Checklist

• I looked for written wishes and a prepaid plan, and wrote where I looked on the found sheet.
• The found sheet names who has the right to decide and how we know, or the question and who will answer it.
• The funeral provider knows who decides.
• The decisions sheet lists the "now" decisions, each with a status and a name.
• Every other decision is marked this week or later.
• I read my own state's statute on the right of disposition, or asked the state funeral board. (Go deeper; optional)