FUNERALS AND RELATED ISSUES

Deaths are required to be registered with the Registrar of Births, Deaths and Marriages. Where a death occurs in hospital, these legal requirements will be seen to by the medical staff, and if the death occurs in a private house, by the funeral director.

There is a statutory requirement to notify a coroner or the police of a ‘reportable death’. This includes where a doctor could not discover the cause of death. The Coroners’ Act 2008 (Vic) will come into force on 1/11/2009 and defines ‘reportable death’ to include death in custody or patients within the Mental Health Act or as the consequence of a medical procedure.

Once the cause of death has been ascertained, usually by a medical practitioner, the body may be taken for burial or cremation. In practice this almost always means that the body is conveyed to the undertaker who takes charge of the proceedings.

At this stage several choices must be made. First, the choice of funeral director must be decided upon. The service charge varies between directors and consequently savings can be made by "shopping around". The service charge can be quoted to include the coffin or casket (unit pricing) or separately from the price of the coffin or casket (functional pricing). The service charge covers such things as the use of a hearse, the transportation and disposal of remains, making arrangements with the cemetery or crematorium, the taking care of legal requirements, etc.

The price of the funeral will vary greatly, depending not only on the choice of funeral directors, but also on the choice of burial or cremation, the choice of cemetery, and the number of extra services supplied by the funeral director. The law does not require a minister or formal ceremony, embalming, the placement of a notice in the press, or the delivery of the coffin to the cemetery or crematorium in a hearse. Decorum, however, will be required by the trustees; therefore, if private transport of the coffin is organised it should be undertaken in a covered vehicle (e.g. panel van) with curtains on the windows.

If there is a will that names an executor then they have custody and control of the body for the purpose of its disposal. Next of kin or a friend can organise the funeral without necessarily becoming obliged to administer the dead person’s affairs but whoever authorises the funeral director may be personally liable to meet the costs of the funeral unless it is clear the estate will be liable to pay the account.

The law concerning burials and cremation is contained in the Cemeteries and Crematoria Act 2003 (Vic) (‘CCA’).

The price of burial is generally more than that of a cremation as the price of headstones and monuments may greatly add to the cost. The payment for a burial occurs at the time of the funeral. Generally this will mean that the funeral director will pay the trustees of the cemetery and then claim reimbursement as part of the fee.

No corpse can be buried in a public cemetery until a permit has been signed by an authorised officer of the trustees, that is, generally after receiving a notice in the form prescribed in the Births, Deaths and Marriages Registration Act 1996 (Vic) signed by a legally qualified medical practitioner.

A person who wishes to erect or place a monument or tombstone in any part of any cemetery must, before permission is given, submit a plan of it to the trustees of the cemetery (or an officer authorised on their behalf). Under the CCA they may withhold permission and prevent the erection or placing of any monument or tombstone which appears to them to be inappropriate, unsafe or dangerous. The holder of a right of interment must keep the grave and monument in a safe condition.

A cremation is generally less expensive than a burial. However, because it is irreversible, more legal requirements must be met than for burials and penalties for contravention of them are harsher.

A cremation can be conducted in a public cemetery after permission to cremate the corpse has been signed by an officer of the trustees of the cemetery. A cremation can be undertaken outside a cemetery but only with the consent of the Secretary of the Department of Human Services.

Permission will not be given until the officer has received an application in the form prescribed in Schedule 3 of the Cemeteries and Crematoria Regulations 2005 (Vic) . This application is usually filled in by the executor or nearest surviving relative. It covers such matters as the relationship of the applicant to the deceased, the circumstances of death, directions, if any, by the deceased regarding the disposal of the body and the objections, if any, of near relatives to the cremation of the deceased.

The above form must also be accompanied by a form as set out in Schedule 4 of the C&C Regulations certifying that it is appropriate that the body be cremated. This must be signed by a different doctor to that who signed the earlier notification of death form.

After the cremation, on the giving of 48 hours notice, a small container marked with the deceased's name and containing the ashes can either be collected from the crematorium (a fee is payable) or disposed of according to the family's wishes in the cemetery grounds for an additional cost.

It should be noted that some local churches have provision for the interment of parishioners' ashes in a memorial garden. This may be substantially less costly than interment in the grounds of a cemetery. Otherwise, permission for the scattering of ashes is not generally required. However, if the ashes are to be scattered on private property or in some public places, the consent of the owners of the property should be obtained.

In Victoria a coffin is necessary for both burials and cremations. The Cemeteries and Crematoria Regulations 2005 (Vic) specifies that a coffin must be a hygienic closed receptacle soundly constructed of substantial wooden or other approved material in such a way as to prevent the escape of offensive liquids or exhalations.

Coffin makers (funeral directors' suppliers) often refuse to sell direct to the public and, for obvious reasons, funeral directors are unwilling to do so. By law, so long as the coffin fulfils the above requirements, it can be constructed by a private individual.

The price of a purchased coffin or casket will greatly affect the cost of a funeral. Coffins that taper to the heel are generally less expensive than the rectangular caskets.

A death notice is not required by law. It is primarily a social formality but can also have the effect of notifying creditor, debtor, executor and potential beneficiaries of the death.

Donation of a body for anatomical research is covered by the Human Tissue Act 1982 (Vic) ("the HTA"). Persons with lawful custody of a body may permit it to undergo anatomical examination unless to their knowledge the deceased expressed the wish that their body should not undergo such examination, or unless the surviving spouse or senior next of kin requires the body to be interred or cremated without such examination.

The option of donating one's body to anatomical research is no longer open in practice. Currently supply exceeds demand in the university medical schools and for the time being such donations are not being accepted. The position is different with regard to parts of the body such as kidneys and eyes which, if in good condition and removed from the body soon after death, may be used in transplant operations. The HTA provides that an adult may authorise the use of their body for transplant purposes. Appropriate notification should be carried at all times if this is desired

After the funeral the next of kin may need to obtain a death certificate, for example in order to obtain funeral benefits. A certified death certificate can be obtained from the Registrar of Births, Deaths and Marriages. Applications forms are available online at www.bdm.vic.gov.au as well as at the Registrar's Office and Post Offices. The price as at 30 March, 2009 was $25.80.

The instruction to a funeral director to take charge of a funeral is a personal contract. Most banks will release part of the deceased's money to meet funeral expenses. In the case where someone dies without either friends, relatives or funds to cover burial expenses, the costs will be borne by the state.

Pre-payment of funerals with funeral directors is becoming a more popular means of paying for a funeral in Victoria. The pre-payment is often in the form of an insurance bond. However, it is also possible to arrange insurance that will cover funeral costs.

If one wishes to bring a body into Victoria from interstate, the law of the place where the death occurred must be complied with when taking the body from that place. So long as all the legal requirements have been complied with, a body may be transported interstate from Victoria. This can be done by a private individual. No special cars or coffins are required, but a standard of decorum should be maintained.

Complaints against funeral directors for unsatisfactory service can be made to the Office of Fair Trading at Consumer Affairs Victoria . In the case of overcharging, a claim can be made through the Civil Claims List of the Victorian Civil and Administrative Tribunal (VCAT) where the amount does not exceed $5,000.

For more information on this subject refer to The Law Handbook chapter 20.3