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When someone dies

16 Sep 2016 - 11:11 | Version 8 |

Contributed by MelissaYates and current to 1 May 2016

The death of a loved one can be a very difficult time for friends and family. In particular, the task of making arrangements following the death of a loved one can often be the cause of disagreement between well-meaning family members and friends due to uncertainty about what the deceased's wishes might have been. Funerals or funeral services themselves don't have to be formal or conducted by a funeral director or minister, however the process or burying or cremating a deceased loved one should be managed with the assistance of a funeral director to ensure compliance with regulations.

Steps to be taken when someone dies

When a loved one passes away, the following are some initial steps which should be taken (preferably by the deceased person's Executor if known) in order to make the process of finalisation of that loved one's affairs easier:
  1. Secure the deceased's home and other property such as motor vehicles, boats, tools, etc;
  2. Look through the deceased's belongings and personal papers to see if a will can be found or alternatively, make enquiries to see if a will exists;
  3. Determine if there are any cultural or religious considerations to take into account when dealing with the deceased's remains and funeral arrangements;
  4. Decide how the funeral costs will be paid;
  5. Engage a funeral director;
  6. Arrange for the deceased's burial, cremation or disposal in accordance with the law;
  7. Apply for a death certificate;
  8. Arrange for the administration of the deceased's estate.
The Public Trustee of the Northern Territory has information to assist loved ones with the completion of these tasks at: https://nt.gov.au/law/bdm/what-to-do-if-someone-dies/administer-the-estate.

Notification of the death

Part 6 of the Births, Deaths and Marriages Registration Act (NT) ('the BDMR Act') sets out the information that is required to notify the Registrar of Births, Deaths and Marriages (see Contact Points) of the death of a loved one and obtain a death certificate. It is a legal requirement to register all deaths in the Northern Territory or deaths of people who normally live in the Northern Territory with the Registrar of Births, Deaths and Marriages (see Section 32 of the BDMR Act).

Firstly, the doctor who was responsible for the person's medical care immediately before death or examines the body after death must notify Registrar of Births, Deaths and Marriages of the cause of death and other relevant particulars (see Regulation 5 of the Births, Deaths and Marriages Regulations for details of the particulars required) within 48 hours (see Section 34(1) of the BDMR Act). If a cause of death cannot be determined by the doctor, then the coroner will be notified under the Coroners Act (NT) for the purposes of investigation into the cause of death and the making of a finding. Where a death has been referred to the coroner, the Registrar of Births, Deaths and Marriages can still issue a death certificate, however the death certificate will contain a notation in the "Cause of Death" section saying "Incomplete registration - Cause of death subject to coronial enquiry". Once the cause of death is ascertained, a final death certificate with a cause of death can then be issued.

Where a body is released for burial or cremation by either the hospital or by the office of the Coroner and the body is then buried or cremated, a funeral director or other person who arranges for the disposal of human remains must notify the Registrar of Births, Deaths and Marriages within seven days confirming that the remains have been properly buried or cremated (or otherwise disposed of) (see Section 36 of the BDMR Act).

Approximately 2-4 weeks after the notice of disposal of remains is provided by the funeral director to the Registrar of Births, Deaths and Marriages, a death certificate will be issued.

Stillborn babies and notification of death

A stillborn baby is a baby who displays no sign of respiration, heartbeat or other sign of life at birth. To be defined as a stillborn baby under the BDMR Act, the child must be at of least 20 weeks gestation or weigh at least 400 grams at birth (see Section 4 of the BDMR Act). The birth of the still-born baby must be registered however a notation is made on the child's birth certificate that they were born still-born (see Section 12 of the BDMR Act). A death certificate is not issued nor is a death registered of a still-born baby (see Section 32(6) of the BDMR Act). The doctor, midwife or healthcare worker responsible for the professional care of the mother at birth or who examined the body of the stillborn child after birth has to provide the Registrar of Births, Deaths and Marriages with a doctor's certificate certifying the cause of foetal death.

Coronial inquests

Section 12 of the Coroners Act (NT) gives the coroner the power to investigate a death in certain circumstances including:

  • any case where the cause of death is unknown or unexpected;
  • any case where the death occurred while the person was in care or custody;
  • any case where the identity of the deceased is unknown; or
  • any case where the death occurred while a person was under anaesthesia or where the death occurred as a result of anaesthesia.

Usually, a coroner will first order an autopsy (see What is an autopsy? ) and if the circumstances surrounding the death, along with a consideration of the relevant medical and autopsy reports require it - the coroner may either make a finding about the cause of a person's death or an unknown deceased's identity or they may hold an inquest into the cause and manner of the deceased person's death.

The coroner may also hold an inquest into the cause and manner of a person's death if they think it is appropriate in the circumstances. Any death that occurred whilst a person was in care or custody (or shortly before the death the person was in care or custody) must be the subject of an inquest (refer section 14 and 15 of the Coroners Act (NT)). An inquest is a public court inquiry which investigates the circumstances surrounding a death or deaths. The coroner presides over the hearing and hears evidence to assist them in determining the manner and cause of a death. In holding an inquest, a coroner cannot decide whether someone is liable (either criminally or from a civil liability perspective) for a person's death.

Most deaths which are investigated by the coroner do not result in an inquest being held. Concerned family members of a deceased person or members of the public may apply to the coroner to request that the coroner hold an inquest into a death.

An inquest is held in Magistrates Court. For more information about coronial inquests see Health consumer rights and Courts and tribunals . For further information visit the website: http://www.nt.gov.au/justice/courtsupp/coroner/ which provides information in relation to the coroner and coronial inquests.

What is an autopsy?

An autopsy, also known as a post-mortem examination, is a medical procedure that consists of a thorough examination of a human corpse to determine the cause and manner of a person's death and to evaluate any disease or injury that may be present. An autopsy is carried out by a forensic pathologist.

During the process of an autopsy, samples of blood and tissue will be taken for analysis. In some cases, the coroner may require whole organs to be removed for special examination or specialist testing. If such a procedure is required, the senior next of kin will be advised by the Coroner's Office.

If the senior next of kin of the deceased objects to an autopsy being performed, the coroner will advise them in writing of the decision to order an autopsy. Within 48 hours after receiving notice of the coroner's decision to carry out an autopsy, the senior next of kin of the deceased person may apply to the Supreme Court for an order that an autopsy not be performed and the court, in its discretion, may make an order that no autopsy be performed (refer section 23 of the Coroners Act (NT)).

Who is the 'senior next of kin'?

The definition of a 'senior next of kin' is set out in section 3 of the Coroners Act.

Generally, the senior next of kin is:
  • where a deceased person was, at the time of death, married - the person's spouse (husband or wife), including a de facto partner
  • where the person was not married or, if married, the spouse is not available - the person's son or daughter aged 18 years or over
  • where a spouse, son or daughter is not available - the person's parent
  • where a spouse, son, daughter or parent is not available - the person's brother or sister aged 18 years or over
  • where a person is an Aborigine - a person who, according to customs of the community or group to which the deceased person belongs, is an appropriate person.

Who may receive the coroner's findings?

During the course of their enquiries, the coroner will issue a certificate of disposal which will release the body of the deceased to the deceased's executor or senior next of kin (or a funeral director arranged by them). Once complete, the coroner will then issue a copy of their findings to the senior next of kin whether an inquest is held or not.

Other persons may request to obtain a copy of the findings, which will only be made available if the coroner decides it is appropriate.

Donating organs

The Transplantation and Anatomy Act (NT) regulates when tissue may be removed from a deceased person for the purposes of transplantation or for therapy, medicine or science.

Where a person dies in a hospital or is taken there after death, the person in charge - generally the medical superintendent - can authorise the removal and use of human tissue if it appears that in their lifetime the deceased expressed a wish or consented to donate organs or tissue. The medical superintendent can also authorise removal where the deceased didn't expressly object or consent, as long as the senior available next of kin doesn't object, and all of the circumstances have been taken into account (see Section 18 of the Transplantation and Anatomy Act (NT)).

Where more than one senior available next of kin is available, an objection from one will prevent donation. Senior available next of kin is defined differently in the Transplantation and Anatomy Act (NT) than in the Coroners Act (NT). Senior available next of kin for a child is, in order of priority, a parent, a sibling over 18 years of age or a guardian. Senior available next of kin for others is, in order of priority, a spouse (including a de facto spouse), a son or daughter over 18 years of age, a parent or a sibling over 18 years.

Where the deceased is not hospitalised, their consent or expressed wish during their lifetime is sufficient authority for the removal of tissue for transplantation or therapeutic, medical or scientific purposes. When there is no evidence of such a wish or consent, the senior available next of kin may consent in writing to a removal only when they have reason to believe the deceased had not expressed an objection to donation or removal (see Section 19 of the Transplantation and Anatomy Act (NT)).

Views about the donation of organs and tissue should be expressed to next of kin in writing, particularly where they are strongly held.

Suicide

It is not an offence to commit suicide or to attempt to suicide in the NT. It is illegal to aid and abet (assist) someone to commit suicide. Under section 162 of the Criminal Code, any person who helps another person suicide or attempt suicide, including counselling them to kill or attempt to kill themselves, is guilty of a crime and is liable to a term of imprisonment.

Suicide is also classified as a reportable death under the Coroners Act (NT).

Organising the funeral

The law concerning burials and cremation is contained in the Cemeteries Act (NT) and its Regulations. The Minister in charge of burials and cremations is the Minister for Local Government.

Once cause of death is ascertained and the body released, a body can be taken for burial or cremation. In practice, a body is usually transported to a funeral director who then takes charge of proceedings. A person who is organising a funeral themselves can ask that the body remain at the local hospital mortuary until the day of the funeral.

Custody of the body and ultimate control of its disposal rests with the representative where one is named in the will. If no representative is named, an interested relative or friend can organise the funeral. Next of kin are not obliged to arrange a funeral.

Note that in a dispute between blood parents and foster parents over the right to determine how a child is to be buried, it has been held that the common law recognises that the blood parents have a duty and therefore the right to bury their dead children, subject only to their having the means to do so (Warner v Levitt (unreported, SC (NSW), 23 August 1994).

The wishes of the deceased

A person has no legal power to dictate how they are disposed of after death. Any direction in a will is merely expressing a desire; it is not binding. This position comes from the legal principle that no-one can own a dead body, not even the dead person themselves. The only exception to this relates to cremation.

Section 18(1) of the Cemeteries Act (NT) allows the next of kin to object to having the body of their family member cremated. The objection is made to the Board of the crematorium or the Minister. The Board or the Minister must refuse to grant a permit to allow a body to be cremated unless the deceased left a specific wish in their will that their body be cremated.

Funeral directors

Once a body is released for burial several choices must be made. First a decision needs to be made as to whether or not to use a funeral director. The charges for the services offered by funeral directors vary widely, and depend on the kind of service offered. Costs can be reduced by giving consideration to the type of service required. A funeral director's charges might reasonably include:
  • use of a hearse
  • the transportation and disposal of remains
  • making arrangements with the cemetery or crematorium
  • taking care of legal requirements.
Funeral directors also offer extra services if desired, however, these are not necessary to comply with legal requirements. Such extra services might include flowers and wreaths, the use of a funeral parlour chapel, mourning coach, a 'celebrant' to conduct a service, press notices and embalming. Charges may include a coffin or casket or these items can be bought separately.

The law doesn't require a funeral service to be a formal ceremony or include a minister of religion. Legally a death notice doesn't have to be published or a coffin delivered to the cemetery or crematorium by hearse. A certain level of decorum is, however, usually required by cemeteries and crematorium trustees. If the coffin is transported privately, it should be done, for example, in a covered vehicle, such as a panel van, with curtains on the windows.

Paying a funeral director's fees

Instructions to a funeral director to take charge of a funeral amount to a contract. Funeral expenses are usually paid from the estate of a deceased in priority to other debts or creditors. If the estate of the deceased cannot afford to pay for the funeral and there is no insurance or pre-paid funeral plan in place to assist with these costs, then the person who engages the funeral director is usually held liable for the costs of the funeral.

Complaints

Complaints against funeral directors for unsatisfactory service or overcharging can be made to the Office of Consumer Affairs (see Contact points).

Cemeteries and crematoriums

Each public cemetery is run by its own board of trustees. In the NT the local council that controls the area in which the public cemetery is located is vested with the powers of the board of trustees (refer section 184 of the Local Government Act (NT)). As a result any reference to 'the board of trustees' is in fact a reference to the local council. A board of trustees is a legal entity in its own right that can sue and be sued in its own name (see Section 8(3) of the Cemeteries Act (NT)).

A board of trustees can delegate some or all of its powers and can make up its own by-laws to control and manage a public cemetery (see Sections 12 & 13 of the Cemeteries Act (NT)). By-laws regulate such things as funeral charges and licensing fees for funeral directors.

Burial

When the cost of headstones, burial plots and monuments are included, a burial generally costs more than cremation. Funerals are paid for at the time of burial. Usually, the funeral director pays a cemetery's board of trustees or their agent, passing on the cost later as part of their fee.

A permit must be obtained for any burial in a public cemetery (see regulation 15 of the Cemeteries Regulations (NT)). Regulation 16 of the Cemeteries Regulations (NT) provides that, in order to obtain a burial permit, the person arranging the burial has to provide to the board of trustees or curator certain documents including:
  • a Notice of Internment (Form 1)
  • a description of the coffin, including length, breadth and depth
  • a medical cause of death certificate or a notice from the coroner authorising burial.
Monuments or tombstones can only be erected after submitting a plan for approval to the board of trustees or curator of the cemetery, together with a fee of $3 (see regulation 26 of the Cemeteries Regulations (NT)).

Burial outside a cemetery

A body cannot be buried outside a cemetery except with the prior written approval of the Minister. Where burial takes place without permission, a fine can be incurred. To obtain the Minister's approval, a formal written application must be lodged. Generally, the Minister won't approve any burials on private property within council areas, including Litchfield. This is due to the fact that the properties may be sold in the future. An exception may be made where a person is already buried on the piece of property in question, and a relative of that person is seeking to be buried there. Approval is usually given for burial on Aboriginal land by indigenous persons.

Burial at sea

Burials at sea are now allowed, although the Minister's approval must be obtained. There are some requirements on how and where it can be done. The casket usually has to have holes drilled in it and be weighted down so that it sinks and remains on the seabed. There is a designated zone for sea burials in Darwin; it is located 18 nautical miles due north of Darwin City. Some funeral services conduct sea burials, but a sea burial can also be arranged privately.

Cremation

Cremation is generally less expensive than burial because it dispenses with the need for costly monuments and headstones. However, because cremation destroys the body, additional legal requirements must be met.

A cremation must be done in accordance with the Cemeteries Act (NT). Section 16 of the Cemeteries Act specifies the requirements that have to be met before a permit for cremation can be obtained. A board of trustees can only grant a permit if it receives one of the following:
  • a certificate signed by two legally qualified medical practitioners stating that the death was due to natural causes
  • if a post-mortem was performed, a certificate from the doctor who conducted it
  • if a coronial inquest was held, a certificate signed by the coroner stating that no further examination of the body is necessary or required.
If it is an urgent situation where there is reasonable cause for not allowing the cremation to proceed, the Solicitor for the Northern Territory, the Director of Public Prosecutions, a justice of the peace or a police officer can stick a notice on the door of the crematorium and serve notice on its supervisor, forbidding the cremation. The body may be taken into custody if they think it appropriate.

Coffins and caskets are completely cremated and never reused, although metal handles and trims on coffins and caskets are occasionally removed and sold as scrap metal.

After cremation a small container marked with the deceased's name and containing their ashes can be collected from the crematorium on payment of a fee or, for an additional cost, disposed of in the cemetery grounds. Some local churches inter a parishioner's ashes in a memorial garden at substantially lower cost.

Cremated remains can be disposed of by any means; permission to scatter ashes is not required. Cremaines, as they are often called, are not classified as a human body so there are no requirements.

Other issues

Transporting a body from interstate

A person wishing to bring a body to the NT from interstate must observe the laws of the State where death occurred. No special cars or coffins are required, but a standard of decorum should be maintained.

Transporting a body overseas

Due to the complexity of obtaining and complying with the requisite consular documents required for transporting a body to a different country it is highly recommended that families contact a funeral home to make arrangements. A body that is to be transported overseas must first be embalmed. The funeral home will make the travel arrangements, organise documentation and embalming of the body.

Death notices

Legally, the publication of a death notice, in a newspaper for example, is not required. A death notice is primarily a social formality, but can serve important legal functions, like notifying creditors, debtors, representatives and potential beneficiaries.

Death certificates

A death certificate proves a death. Death certificates are needed for a variety of reasons. For example, next of kin need a certificate to obtain funeral benefits (see Other benefits below). A certified copy or an extract of the death certificate can be obtained from the Registrar of Births, Deaths and Marriages.

Exhumations

Exhuming remains is regulated by the Cemeteries Act (NT), which makes it a local government matter although a coroner has the power to exhume a body if it necessary for the investigation of a death. It is an offence to exhume human remains without the Minister's consent. The penalty for this offence is $30,600 or 12 months imprisonment (see section 30A Cemeteries Act (NT)). A next of kin (as defined in section 30C(1) of the Cemeteries Act (NT)), an executor of the deceased's estate, or an interested person, can apply to the Minister for an exhumation. The Minister requires the applicant to notify all the next of kin of the application, who may object.

Paying for a funeral

When a person dies, most banks will release part of any money the deceased holds in accounts to meet funeral expenses. Usually, if the executor or next of kin takes a copy of the medical death certificate, a copy of any death notice in the paper and a copy of the funeral director's account, the bank will draw a bank cheque payable to funeral director from the funds held in the deceased's accounts, if available.

If, however, there is no money available, the options are:
  • getting financial help from a close relative. Before instructing a funeral director, a person assisting with funeral arrangements can obtain a written indemnity for costs from a close adult relative. The board of trustees or curator of any public cemetery can waive or postpone any fee or charge.
  • apply for government assistance through Centrelink. Under conditions set out in the Social Security Act 1991 (Cth), the Federal Government provides financial assistance to people who have been affected by a death. A Bereavement Allowance is available to people who have been recently widowed, have no dependent children and have not been getting a payment from Centrelink. Bereavement Allowance helps give people an adequate level of income while funeral arrangements are made and financial affairs settled. Centrelink doesn't provide financial assistance to cover actual funeral expenses.
  • apply for government assistance in the form of a repatriation allowance. Under the Veterans' Entitlements Act 1986 (Cth), the Department of Veterans' Affairs provides a benefit of up to $2000 for the funeral expenses of a veteran who dies of war-related causes, in very poor circumstances, in an institution, while proceeding to or from an institution, or after being discharged from an institution while being terminally ill [s.99]. A grant of up to $2000 may also be made to pay for the funeral expenses of certain dependants of the veteran [s.100].

When there is no money and no family

Where there are no funds from an estate or from family or friends to cover the cost of burial, an application can be made to the Indigent Persons Funeral Scheme. This scheme funds the burial of deceased people who have not been claimed by family members, and can provide funeral services where a financial need for assistance has been established. It provides funeral services only, not financial assistance. Payments are only made to the funeral service provider, not to the next of kin.

Burial services are available throughout the NT. Cremations are only possible in Darwin. The transport of remains to remote communities within the NT can also be arranged. The scheme does not cover services outside the NT.

The applicant for assistance must be a person who is authorised to act in matters relating to the funeral of the deceased, for example the executor of the estate, the Public Trustee or a senior next of kin. An application is made to the Office of the Coroner of the NT, which manages the fund (see Contact points). An applicant will need to provide information and documentation about their financial situation in order to assess eligibility. Money paid out under the scheme can be recouped from the deceased person's estate, should any money become later available upon the settling of the estate.

Funeral benefits may also be obtained through life insurance, health funds, workers' compensation, social clubs, funeral funds or superannuation schemes.

Indigenous burial rites

Australian Indigenous cultures vary regionally and tribally in the way that they deal with death so it is important to be sensitive and to seek advice from local Indigenous Elders or community leaders when assisting with an indigenous funeral or death.

It is common for relatives to express grief of a deceased relative in a number of ways which may include possibly distressing displays of self-harm or specific dress or body painting or calling out or wailing to express respect for the deceased. During this grieving process, it is important to be extremely sensitive as to whether your presence within an indigenous community is offensive to the family members during this time.

Care should also be taken in relation to the use of a deceased's name after they pass away as some indigenous cultures have very strong beliefs around the use of a deceased person's name or image after they pass away.

Often a body will be taken to a place where a smoking ceremony will take place and the body is prepared for burial in accordance with local custom. This process may take days or weeks depending on the circumstances.

Assistance for funding funerals and burial costs can often be obtained from the local indigenous land council or shire.

Sometimes, an indigenous person may come from two clans or tribes who have conflicting ideas about where the body of the deceased should be laid to rest. If contested in court, the court will look at what is practical whilst still maintaining respect and decency. The case of Calma v Sesar [1992] NTSC 17; 2 NTLR 37; 106 FLR 446 is a good example of this. Where possible, dispute resolution should be attempted within the communities themselves to avoid an culturally inappropriate result occurring. It is even more important, if possible, therefore, to ensure Indigenous Australians appoint an executor in their will to ensure that no conflict can arise over who is take on this role. See Prue Vines 'Consequences of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights' (2004" 8(4) Australian Indigenous Law Reporter 1-10.

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