By Leader Contributor Michael Elliott, Senior Legal Counsel for Carriage Services, Inc.
When it rains, you want an umbrella. Luckily, every one of you has an umbrella to protect your firm.
In the last article, we looked at expectation setting when serving families. For this article, I’d like to explore your umbrellas and how to use them. 
Here are some of my favorite umbrellas:
- “If a funeral service … makes arrangements with a person other than a next of kin, designated person, agent, or guardian … [it] shall be immune from civil liability unless such act, decision, or omission resulted from bad faith or malicious intent.” – Virginia; Va. Code Ann. § 54.1-2807.02;
- “If a funeral establishment … relies in good faith upon the instructions of an individual claiming the right of disposition … and such individual is later determined to have falsely or fraudulently represented himself … the funeral establishment … shall not be subject to criminal or civil liability or subject to disciplinary action ….” – Georgia; O.C.G.A. § 31-21-7(f); and
- “If a cemetery authority … or a funeral establishment … has made a good faith effort to locate the [next of kin], [they have] the right to rely on an authority to bury or make final disposition of the human remains, executed by the most responsible party available, and [they] may not be held criminally or civilly liable ….” – Washington; Rev. Code Wash. § 68.50.160(5).
As you can see, what I am calling umbrellas are really just your state’s laws. While it might seem obvious to “follow the law,” fitting within the specific, technical language of a particular law is where your protection will come from.
For example, in Texas, if the children are the next of kin, “any one of the” children “have the right to control” disposition. Tex. Health & Safety Code § 711.002(a). Texas also says that if a person who has the right to control disposition “fails to make final arrangements or appoint another person” within 6 days of learning of her loved one’s death or the 10th day after death, whichever is earlier, “the person is presumed to be unable or unwilling to control the disposition.” Tex. Health & Safety Code § 711.002(a-1) (underline added). Based on this statute, the question I like to ask is: If you let a son choose cremation, and you cremate his mother on the morning of the 5th day after death, what happens when the daughter comes in the afternoon of the 5th day after death and wants burial? The daughter had every bit as much control over the disposition as her brother. You might point to the Texas law that says a firm “shall not be liable for carrying out the … directions of any person who represents that the person is entitled to control the disposition of the decedent’s remains.” Tex. Health & Safety Code § 711.002(i). It’s a fair argument and might even be a winning defense in a lawsuit. However, it is not your best defense under the Texas legal umbrella.
As noted above, a person is presumed unable or unwilling to participate in Texas disposition arrangements if they do not take action within a certain amount of time. Waiting for that time period to run out when you know there are other people in the same level of priority (children, siblings, etc.) is your best approach in Texas because then you take advantage of the presumption, which is a huge legal shield given to Texas firms by the legislature.
While families might be put off by a delay, my last article discussed expectation setting. That theme ties in nicely when making the best decisions to protect your business from potential liability, and, just as critically, to protect the family from an awful situation where a cremation or burial occurs before the family learns other next of kin are deeply opposed to the services that took place.
Another situation that I see is where a deceased tried to designate someone to handle his disposition arrangements. Most often, it’s a life partner or a close friend that the deceased, for whatever reason, trusts more than his family.
Let’s take Rhode Island’s approach to this designation, which gives the agent full priority to make arrangements (absent a pre-need). R.I. Gen. Laws § 5-33.2-24(2)(i). The designation must be signed and notarized in duplicate (at the very least) so that “a signed notarized original [is] given to the principal executing the form, the primary funeral planning agent, and the alternate funeral planning agent, if any.” R.I. Gen. Laws § 5-33.3-4(b). The designated agent also has to “sign the designation accepting the appointment.” R.I. Gen. Laws § 5-33.3-3(d).
In other words, for this designation to be valid in Rhode Island, at the very least:
- It must be notarized;
- Notarized originals must have been given to the person making the designation and the agent; and
- The agent must accept the appointment in writing.
That’s a lot of rules! You have probably been given designation forms that you feel are incomplete or that you don’t fully trust. Trust your judgment because getting something like this wrong, meaning letting the wrong person make arrangements, can be devastating to families, your reputation, and your bottom line.
To be clear, this short article barely touches the surface of the various laws and rules that govern our industry when serving families. A deep, technical knowledge of your state’s legal framework will help ensure that even when it rains, you are under the best possible umbrella.
About the Author: Mike Elliott is the Senior Legal Counsel for Carriage Services, Inc. and serves as the Chief Compliance Officer for Carriage’s Registered Investment Advisor. He has been with Carriage since January 2017. Prior to working at Carriage, Mike defended complex, nationwide pharmaceutical and medical device mass tort lawsuits and then had a busy trial practice. Mike earned his undergraduate degrees from the University of San Diego and earned his law degree from the George Washington University Law School. Mike can be reached at (713) 332-8452 or at [email protected].
 The articles I write are for informational purposes only and are not legal advice or a solicitation of an attorney-client relationship. If you have a need for legal advice, you should seek legal advice from your legal counsel. Do not act on any information in the articles without seeking out legal advice for your specific situation and locality. By reading the articles, no attorney-client relationship is created between us. I exclusively represent Carriage Services and its affiliates as an attorney and do not engage in private practice.