Beginning July 1, 2009, an Indiana resident may execute a Funeral Planning Declaration (“FPD”). If validly executed, an FPD will operate to control an individual’s funeral plans and services, and even the ultimate disposition of his/her remains. A valid FPD will control . . . even against the competing wishes of a surviving spouse, children, parents, etc., . . . and even against a conflicting power of attorney or conflicting provisions in a Will.
Through the use of an FPD, an Indiana resident can acquire the right to control his/her
funeral and burial. The FPD is the final and controlling document, but is limited in scope to only the specific elements of a funeral or disposition set forth therein. Prior law as set forth in the Funeral Directors Practice Act (ID 25-15-2), the Indiana Cemetery Act (IC 23-14-33), the Preneed Act (IC 30-2-13), and the Indiana Cremation Act (IC 23-14-31) no longer controls.
Conditions to Creating a Valid FPD
In order to be effective, and valid, an FPD must meet the following conditions:
♦ Be made by a person of sound mind who is at least 18 years of age (the “declarant”);
♦ Be voluntary;
♦ Be in writing;
♦ Name an individual to serve as the declarant’s “designee” (the person who is to carry
out the declarant’s instructions);
♦ Be signed by the declarant or another person who acts at the declarant’s request and in
the declarant’s presence;
♦ Be dated; and
♦ Be witnessed by at least two (2) competent witnesses who are at least 18 years of age.
Note: Some persons are not permitted to serve as witnesses; they are:
♦ Any person who signs an FPD on behalf of a declarant;
♦ A parent, spouse or child of the declarant; and
♦ An individual who is entitled to any part of the declarant’s estate (whether testate
or intestate and even if a Will is declared invalid).
Who May Not be a Designee?
The following persons and/or entities may not serve as a designee:
♦ A provider of funeral services;
♦ Any person/entity given responsibility for disposition of remains; and
♦ Any person associated with any entity responsible for providing funeral services or the
making of disposition of remains.
But, an individual related to a declarant by birth, marriage or adoption may still be a
designee notwithstanding the stated prohibitions.
Must the Provider of Services Honor it and Act Pursuant to a Designee’s Declaration?
Yes, but only if the provider of services/merchandise (funeral home, cemetery, or other
person providing a services or merchandise or other property specified in the declaration)
receives consideration for the service, merchandise or other property. As a matter of practical reality, an FPD should be coupled with a fully funded preneed contract.
What is or May be Covered by the FPD?
The FPD may be used by a declarant to specify his/her specific wishes/instructions
concerning any of the following:
♦ Disposition of remains after death (i.e., burial, cremation, etc.);
♦ The identity of the person/entity responsible for directing the disposition of remains;
♦ The identity of the entity who is to provide funeral services;
♦ A description of any ceremonial arrangements to be performed after death;
♦ A statement of the merchandise that the declarant prefers for the disposition of remains
and any ceremonial arrangements;
♦ The identity of the person who is to direct ceremonial arrangements to be performed
after death; and
♦ The declarant’s preference concerning a grave memorial.
What Happens if the FPD is Incomplete and Covers Only the Funeral Service but Does Not Mention or Direct Any Specific Disposition of Remains?
An individual need not make a complete or fully descriptive FPD. It is possible to specify
funeral arrangements only and not mention any aspect of disposition of remains, and vice versa. However, when this is done the law states that when no decision is made the designee is given the discretion to make the decision. But in a situation where a designee is “unable or unwilling to serve,” the following constitutes the order of priority for those matters (right to control disposition, or to make funeral arrangements, or to make other ceremonial arrangements):
♦ An individual granted the authority in a health care power of attorney executed by a
decedent under Indiana Code 30-5-5-16;
♦ The decedent’s surviving spouse;
♦ A surviving adult child of the decedent;
♦ A surviving parent of the decedent;
♦ An individual of the next degree of kinship under Indiana Code 29-1-2-1 to inherit the
estate of the decedent.
Can You be Liable if You Rely on an FPD that Ultimately Turns Out to be Defective?
No. One who acts in good faith reliance on an FPD is immune from liability to the same
extent as if the person had dealt directly with the declarant had he/she been alive and competent. In the absence of actual knowledge to the contrary, you may presume that:
♦ A declaration has been validly executed;
♦ The declarant was competent at the time the declaration was executed.
The directions set forth in a declaration are binding just as if the declarant were alive and
You can download a Funeral Declaration Form here. Northern Indiana Funeral Care encourages you to call us at 1-877-382-2756 if you have any questions about completing this form or to talk to us about advance funeral planning in general.
The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.