Let’s talk about Powers of Attorney vs Executors of a will…the very difference is that a Power of Attorney is someone you appoint to assist you when you are alive and an Executor is someone you appoint to take care of your affairs upon your death. Once you die, your Executor takes over and your Power of Attorney is no longer able to make decisions.
The law is clear that whenever there is an Executor/Executrix, that person will have the authority to make funeral decisions regardless of whether there is a next-of-kin who wants to make those decisions. So then, if I name a friend as my executor, he/she will have the authority to decide that my body will be cremated even if it’s against the wishes of my family. In all honesty it has been my experience that executors who are not family are named to make it easier on family members and not to hinder them. Bottom line though is to name someone you trust and talk to that person about your wishes.
But what happens if there is no will and no executor? In these cases, the common law provides that the next-of-kin has the right to make the decisions regarding the disposition of the body. The order of priority that the common law (i.e. the judge-made law) has given to help decide which person is considered the next-of-kin is as follows:
(1) spouse (6) brothers or sisters
(2) children (7) grandparents
(3) grandchildren (8) uncles, aunts, nephews and nieces
(4) great grandchildren (9)collateral relatives of more remote degree
(5) father or mother
The Estates Act provision that addresses who should be named an administrator by the court defines “spouse” as “the person to whom the deceased was married immediately before the death of the deceased or person of the opposite sex or same sex with whom the deceased was living in a conjugal relationship outside marriage immediately before death.” Therefore, a husband, wife or person of the same or opposite sex who was living in a conjugal relationship with the deceased immediately before death should have priority over any of the family members in (2) through (9) above.
