The Law Handbook 2024

920 Section 9: Health, wills and other legal issues affecting older people the executor of the deceased and if that person applies, release the body to the executor. However, if the executor does not apply, then the body is to be released to the senior next of kin as defined in the Coroners Act. Otherwise, the coroner is to consider the provisions of common law in deciding to whom to release the body (s 48). 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. Organising a funeral 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 is liable to pay the account. If there is an executor If there is a will that names an executor, then they have custody of the body for the purposes of the disposal of the remains and therefore the ultimate control of its disposal (but see ‘Cremation’ and ‘Donation of body for anatomical research’, below). If there is no executor 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. A person who takes out letters of administration of a person who dies intestate has the same powers and responsibilities as a proving executor for the disposal of the remains, once a grant of administration has been obtained. Burial, cremation and donation of remains 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 add to the cost). However, the cost of a grave is 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 means that the funeral director pays the trustees of the cemetery, or any authorised officer of the trustees, and the Secretary of the Victorian Government Department of Health for the grave being dug or the vault being made, and then claims reimbursement as part of their fee. All interments (whether in a public cemetery or otherwise) must be authorised. In the case of interments in a public cemetery, authorisation can be sought by applying to the cemetery trustees (ss 116–120). With approval in writing from the Secretary of the Department of Health (Vic), a dead body may be buried in any private ground or land specified by the Secretary of the Department of Health (Vic) (ss 121–127). A person who buries the body of a person elsewhere than in a public cemetery without approval from the Secretary of the Department of Health (Vic) is liable to a penalty of 600 penalty units or five years’ jail or both (s 114) (see ‘A note about penalty units’ at the start of this book).