By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship Attorney

I was recently asked to find authority permitting the Court appointed guardian to make advanced funeral arrangements for her ward, including payment and the details of the funeral. The guardianship judgement did not address this issue and there was no previous direction given by the ward to anyone. Note that the incapacitated person was/is still alive.

The issue with funerals is generally “who has the authority to make funeral arrangements at the time of “need” rather than pre-arrangements. Putting the funds into trust for that purpose is a different question relating to the authority of the guardian. If funeral arrangements are not covered in the appointment you may need to seek court permission.

In this juncture, there is no specific statute regarding an agent’s authority to pre-plan a funeral unless the guardianship order of appointment gives that power. It is however an implied power where a guardian is appointed agent of the person and property. I suspect this includes buying a prepaid funeral plan.  There is pending legislation that will allow a person to appoint a funeral representative outside of a will. Currently the only statute granting funeral authority is to an executor of a will before probate to handle disposition of remains.

There is already a law on the books allowing for the appointment of a “Designated Funeral Representative” in a will. It takes effect without probate. The proposed statute would permit it to be made in a separate writing.

To discuss your NJ Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.