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The funeral procedure

Funerals can be expensive; cremations cost slightly less. Total expenditure may be far greater because added to the costs of the funeral itself is the price for headstones, memorials, etc.

The cost of arranging a funeral can be reduced substantially by members of the deceased’s family or friends arranging it themselves. (The law does not require the services of a funeral director or a minister, nor does it require a formal ceremony.) The use of this option, however, is extremely rare. There is, obviously, no encouragement from the funeral industry for the “do-it-yourself” approach. The psychological state of the consumer and ignorance about available alternatives is generally such that the services of an expert, the funeral director, are almost invariably obtained.

In this chapter, reference is made to the Registrar of Births, Deaths and Marriages.

Registry of Births, Deaths and Marriages
Ground Floor, 595 Collins Street, Melbourne Vic 3000
Tel: 1300 369 367
Email: via the website
Web: http://online.justice.vic.gov.au

Notifying the Coroner of death

The new Coroners Act 2008 (Vic) (“CA 2008”) came into force on 1 November 2009. All references in this section are to the CA 2008 unless otherwise advised.

There is a statutory requirement to notify a Coroner or the officer in charge of a police station of reportable deaths where there are reasonable grounds to believe the death has not been reported (s 12 (in respect of reportable deaths); s 13(1) (in respect to reviewable deaths); ss 14, 15). Such information generally originates from the public. The Coroners Court must notify the Registrar of Births, Deaths and Marriages (“the Registrar”) of the prescribed particulars found by the Coroner following an investigation of a death. It is an offence in Victoria to dispose of a body in the case of reportable death before the Coroner has had an opportunity to examine it (see “Coronial inquests”, below).

There is no exhaustive statutory determination of exactly what is a “reportable death”, but section 4(2)(a)–(j) of the CA 2008 does set out categories of cause of death that do constitute a “reportable death”. These cover the cases in which a doctor could not discover the cause of death. A legally qualified medical practitioner must certify that a person is dead. A person who has reasonable grounds to believe a reportable death has not been notified must do so as soon as possible (s 12). A member of the immediate family of a deceased where the death occurs within three months of discharge from an approved mental health service may report the death to the Coroner (s 12(2)).

The new CA 2008 came into force on 1 November 2009 (see note above). The definition of the categories of a reportable death appear in section 4(2)(a)–(j) of the CA 2008, and include the deaths of persons while in custody (s 4(2)(c)), or patients within the meaning of the Mental Health Act 1986 (Vic) (s 4(2(d)), or those who die during or as a consequence of a medical procedure as defined by the Act.

Where a registered medical practitioner is present at or after a death of a person, the medical practitioner must report the case to the Coroner without delay (s 10(1) CA 2008).

It is normal practice for the Registrar to report to the Coroner any reportable deaths that had not been investigated.

In the case of a reportable death, the body will be transferred to the Coroners Court by a funeral director who operates on a contract from the state government. No payment is required from the next of kin for this service and it is not necessary for the funeral director who transferred the body to the court to arrange the funeral.

Coronial inquests

The Coroner has jurisdiction to hold an inquest concerning any fire or reportable death as defined by the CA 2008. The Coroner must investigate a reportable death provided the death took place in Victoria and occurred within 50 years of the death being reported (s 14) and may investigate a death within 100 years of notification (s 15).

If any person buries, cremates or otherwise disposes of the body of any person who died in such circumstances before the Coroner has had an opportunity of viewing the body, that person is guilty of an offence.

The CA 2008 gives the Coroner wide powers regarding investigation of a death or the holding of an inquest (ss 14, 15). A Coroner is not required to continue an investigation into a reportable death if a medical investigator provides an opinion that the death was due to natural causes despite the fact that the person died unexpectedly. A Coroner is bound to order an autopsy if the they believe that the autopsy is necessary for the investigation of the death and it is appropriate to give the direction. Alternatively, the Coroner may not require an autopsy to determine the cause of death, instead relying on other sources of information available. Section 27 provides that any person may ask the Coroner to direct that an autopsy be held.

From 1 November 2009 the senior next of kin must be provided with any reports given to the Coroner (s 115(1)(a)). Interested parties given leave to appear at the inquest, if one is held, must be provided with a copy of the inquest brief (s 56). However, this right does not extend to general documents held by the Coroner (s 115(6)).

The CA 2008 now provides that a Coroner may provide a body to a medical investigator to enable a preliminary examination to be performed on a body, which consists of various non-invasive tests, such as taking and testing samples, X-rays, or similar imaging tests. Accordingly, a preliminary examination may provide sufficient information to establish the cause of death, without requiring the need for an autopsy. If an autopsy is ordered the Coroner must notify the senior next of kin (s 26(1)).

Such an autopsy can only be ordered where the Coroner believes it is necessary for the investigation of the death and it is appropriate to give such a direction (s 25(2)). Within 48 hours of receipt of notice from the Coroner, the senior next of kin may ask the Coroner to reconsider the decision (s 26(2)). The senior next of kin must be notified of the result of the Coroner’s reconsideration. The autopsy still cannot take place until 48 hours have elapsed from the time the senior next of kin is notified of the result of the Coroners’ reconsideration, so that the senior next of kin may apply to the Supreme Court to have the decision overturned (s 26(2), (3)) if they wish to take that step.

The Coroner has the power to make recommendations to any Minister, public statutory authority or entity regarding any matter where a death or fire has been investigated (s 72). The public statutory authority or entity receiving the recommendations is obliged to respond within three months (s 72(3)). Unless otherwise ordered by a Coroner, a Coroner’s findings, comments and recommendations made following an inquest must now be published on the internet (s 73).

Registration of death

A doctor who attended any person during the last illness or who examines the body after death must sign and send to the Registrar a notification prescribed by section 37(1) of the Births, Deaths and Marriages Registration Act 1996 (Vic) (“BDMR Act”) within 48 hours of the death.

This notification must be supplemented by a completed form given to the Registrar within seven days of the disposal of the body by the funeral director or person having custody of the body (s 39).

The name and address of the medical practitioner who certified the death can be found in the schedule 5 form (under the Births, Deaths and Marriages Registration Regulations 1997 (Vic)) entitled Notice of Signing Medical Certificate Concerning Death. A copy of this form must be delivered or sent to one of the persons required to notify the Registrar (see above) within 48 hours of the death. This notice, however, shall not be issued if the doctor is required to report the death to a Coroner or a police officer (s 37(4) BDMR Act).

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. If, however, the services of a funeral director have not been obtained and the death occurred in a private house, notification must be forwarded to the Registrar in the prescribed form, which can be obtained, free of charge, from the office of the Registrar.

Procedure prior to burial or cremation

Once the cause of death has been ascertained – either by a medical practitioner or by the Coroner at the Coroners Court where reportable death cases are taken – the body may be taken for burial or cremation. In practice this almost always means that the body is conveyed to the undertaker.

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 “shopping around” can make savings. 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, and the taking care of legal requirements. It may also provide for costly but unnecessary extras, such as the use of a funeral parlour chapel, mourning coach, press notices and embalming.

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 (of course, the wishes of the deceased should be followed in the making of this choice, which in some instances may preclude a cremation, see “Cremation”, below), 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 (see “Death notices”, below), 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.

Organisation of the funeral

If there is a will that names an executor then they have custody of the body and ultimate control of its disposal (but see “Cremation” and “Donation of body for anatomical research”, below). If there is no executor or interested relative, then a friend can organise the funeral without necessarily becoming obliged to administer the dead person’s affairs. The next of kin are not obliged to arrange a funeral. 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.

Burial

The law concerning burials and cremation is contained in the Cemeteries and Crematoria Act 2003 (Vic) (“C&C Act”), and the section references in this and the following “Cremation” sections are to that Act, unless otherwise specified.

The price of burial is generally more than that of a cremation (the price of headstones and monuments greatly adding to the cost). However, the cost of a grave will be far lower in less-used cemeteries, such as those in the outer suburbs or in a country town. 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, or any authorised officer of the trustees, and the Secretary of the Department of Human Services (“the Secretary”) for the grave being dug or the vault being made, and then claim reimbursement as part of the fee.

With approval in writing from the Secretary, a dead body may be buried in any private ground or land specified by the Secretary (ss 121–127). Every person who buries the body of another person elsewhere than in a cemetery without such approval is liable to a penalty of not more than 600 penalty units (s 114).

No corpse can be buried other than in a public cemetery, or even in a public cemetery, until a permit to bury it has been signed by an authorised officer of the trustees (ss 114–116).

The officer will not sign such a permit until the relevant documents have been produced. Generally, this means a notice in the form prescribed in section 37(2) of the BDMR Act (see “Registration of death”, above) signed by a legally qualified medical practitioner. If, owing to special circumstances, it is not possible for a notice to be signed by a medical practitioner, a statutory declaration to that effect by the undertaker or other person conducting the burial may be enough (s 116(3)(e)).

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). They may withhold permission and prevent the erection or placing of any monument or tombstone that appears to them to be inappropriate, unsafe or dangerous (ss 97–103). The holder of a right of interment must keep the grave and monument in a safe condition (ss 104–112).

Cremation

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

A cremation must be conducted in a public cemetery and cannot be conducted until permission to cremate the corpse has been signed by an officer of the trustees of the cemetery (ss 129, 130 C&C Act). A cremation can be undertaken outside a cemetery but only with the consent of the Secretary (ss 131–141). Ashes can be deposited in a public cemetery; however, there is no requirement to place them in one. If they are deposited in a public cemetery, it may be in perpetuity or for a limited tenure not exceeding 25 years (s 128 C&C Act).

Every person who cremates or assists in the cremation of a corpse in any cemetery or other place without the necessary consent or permission will be guilty of a misdemeanour, and on conviction may be liable for a fine of up to 600 penalty units or imprisonment for up to five years.

Permission by an officer of the trustees of a cemetery will not be given until the officer has received an application in the form prescribed by subsections 131(2) and (3) of the C&C Act (sch 3 Cemeteries and Crematoria Regulations 2005 (Vic) (“C&C Regulations”)). 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 schedule 3 form must also be accompanied by a form as set out in schedule 4 of the C&C Regulations, signed by a doctor who did not sign the notification of death form under subsection 37(2) of the BDMR Act, that it is appropriate that the body be cremated.

The person who has the charge or conduct of a cremation must notify the Government Statist by way of a signed certificate stating the name of the deceased, the date and place of cremation, and where practicable the names of the persons related to the deceased present at the cremation and the name of the minister officiating at any religious ceremony upon it (pt 9 div 3 C&C Act).

During cremation coffins and caskets are completely cremated. They are never reused. Occasionally metal handles and trims on coffins and caskets are removed; they are, however, smelted down separately and sold as scrap metal. The current trend is away from metal fittings. Where plastic ones are fitted to coffins and caskets, they are cremated without being removed.

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.

There is no statutory requirement for the disposing of cremated remains, but if one wishes to inter ashes within the grounds of an appropriate institution 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. 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 as a fee may be payable for the scattering of the ashes.

Coffins

In Victoria a coffin is necessary for both burials and cremations. It must be a hygienic, closed receptacle soundly constructed of substantial wooden or other approved materials in such a way as to prevent the escape of offensive liquids or exhalations (reg 13; pts 4, 5, 6 C&C Regulations).

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.

The funeral procedure :: Last updated: Sun Jun 30th 2013