When someone dies
Whether a person dies at home or not, the senior next of kin have certain responsibilities. While they are under no legal obligation to accept responsibility for arranging the funeral, they are required to provide personal details of the deceased within one month of the death so that the death can be registered. If no next of kin are available, anyone who knows the facts can be asked to provide this information.
When the deceased has appointed an executor in their will, it is the executor’s responsibility to organise the funeral. The executor has a right to the possession and custody of the body until it is buried or cremated and is not bound by specific directions left in the will. However, under the Human Tissue Act 1983 (Part 5), the executor is not empowered to make decisions about organ donation and post-mortem examinations; this right falls to the ‘senior available next of kin’.
If there isn’t a will or an executor hasn’t been appointed, the next of kin is responsible for the body. The police may be asked to find the next of kin and tell them about the death. If the next of kin doesn’t want to be involved, the funeral may be arranged through the government contractor.
Who is the next of kin?
In most cases, the next of kin will be the deceased’s husband or wife, de facto partner, or parents. In NSW, the Property (Relationships) Act 1984, section 4 defines a de facto relationship as that between two adult persons living together as a couple who are not married to each other or related by family.
‘Next of kin’ can therefore include lesbian and gay partners. Despite this, if a person in a same-sex relationship dies without leaving a will, their partner’s wishes may be ignored by the family unless the partner can establish that a de facto relationship existed. This can be an important issue for a lesbian or gay person who may want their partner rather than their family to control the funeral arrangements. For this reason, it is especially important for lesbian and gay people to make their wishes clear in a will. Even then the executor is not bound by the directions left in the will. Disputes over ownership of the body or decisions about funeral arrangements are referred to the Supreme Court for hearing. Costs are met by the disputing parties.
Deaths at home
When someone dies at home, a doctor should be called to pronounce the person dead and to issue a medical certificate of cause of death. (In NSW, the law states that a person is dead when their brain stops functioning or their blood circulation stops, and these processes cannot be reversed.) If the doctor cannot, for any reason, issue a medical certificate of cause of death, they must notify the local police. The police will arrange to remove the body to the nearest forensic mortuary and a coronial investigation begins.
Once the cause of death has been certified, either the family or the doctor should contact a funeral director chosen by the next of kin to arrange to move the deceased to a funeral home.
Keeping the body at home
If the next of kin wishes, they may ask the funeral director to prepare the body so it can be kept at home until the time of the funeral. It is common among some communities to dress the body themselves and have the body at home for viewing until the time of the funeral.
However, if the deceased has not been embalmed, they cannot be left unrefrigerated for more than eight hours because of the risk of deterioration (Public Health (Disposal of Bodies) Regulation 2002, clause 16).
The preferred procedure is for the deceased to be taken to the funeral home for embalming, and then to the family’s home. The NSW Department of Health requires that a funeral director know where the deceased is at all times. Transport is provided by the funeral director. It is a health risk (and otherwise problematic) to transport a deceased person in a private vehicle.
Deaths in hospitals and institutions
About 90 per cent of people who die each year in NSW do so in a hospital or other institution. After a medical certificate of cause of death is issued, the body is kept at the institution’s morgue until the next of kin makes arrangements for a funeral by contacting a funeral director. If there is no morgue at the institution, the next of kin must have the body moved to a funeral home as soon as possible.
If there is no next of kin
Where a person who dies in hospital has no next of kin or friends to arrange or pay for the funeral, and had no money or other assets, and the coroner is not involved, the hospital where they died must accept responsibility for arranging and paying for the funeral through the government contractor.
If a person died at home, and has no next of kin or friends to arrange or pay for the funeral, had no money or other assets, and the coroner is not involved, when a doctor has issued a medical certificate of cause of death, the police will complete a burial/cremation of a ‘Deceased Destitute Person’ form P372, which is sent to the Director of Public Health Unit (PHU) of the relevant Health Service. The government contractor will be contacted by the PHU to organise a funeral. If a medical certificate of cause of death was not issued, the body is taken to the coroner’s morgue.
The coroner issues an ‘Order for Disposal of a Destitute Person’ and forwards it to the Director of the relevant Health Service’s Public Health Unit (PHU). The PHU, in turn, contacts the government contractor who forwards the invoice to the PHU for payment by the Area Health Service. See the section on destitute funerals. If a Coroner’s case involves a destitute person, and there are next of kin, the counsellors at the Department of Forensic Medicine can be approached by the family to assist with funeral arrangements.
If the deceased has no next of kin, but did have money or assets, the case is referred to the NS W Trustee and Guardian who arranges and pays for a funeral from the estate.
Rest Assured: a Legal Guide to Wills, Estates and Funerals in New South Wales, 5th edition, by Rosemary Long and Trudy Coffey. Published by The Federation Press, 2011.
Online edition published by the Legal Information Access Centre, State Library of NSW. The online version has been updated to reflect changes to the law. Last updated October 2014.
�� Library Council of New South Wales, 2011.