Wills, Intestacies, Estates and Funerals

Funerals, Burial and Cremation in the Act

Sources of the Law Governing Funerals, Burial and Cremation in the ACT

The main pieces of legislation governing funerals, burial and cremation are the following:

• The Coroners Act 1997 (ACT) (Coroners Act);
• the Births, Deaths and Marriages Registration Act 1997 (ACT)(BDMA);
• the Births, Deaths and Marriages Registration Regulation 1998 (ACT) ( BDMReg);
• the Transplantation and Anatomy Act 1978 (ACT);
• the Cemeteries and Crematoria Act 2003 (ACT) (CCA);
• the Cemeteries and Crematoria Regulation 2003 (ACT) (CCreg);
• the Administration and Probate Act 1929 (ACT) ('the Administration and Probate Act'); and
• the Public Health Notifiable Conditions Determination 2005 and the Public Health (Reporting of Notifiable Conditions) Code of Practice 2006 (No 1) made under the Public Health Act 1997 (ACT).

It is worth noting that the CCA replaced and repealed the Cremation Act 1966 (ACT) and the Cemeteries Act 1933 (ACT) and the regulations made under those Acts.

Procedure before the Funeral

Medical Practitioner's Duty to Give a Medical Certificate

A. Stillborn child

If a child is stillborn, the doctor responsible for the care of the mother must give the Chief Executive Officer (CEO) of the hospital where the mother was admitted a medical certificate certifying the cause of foetal death: BDMA s 5(4). The CEO then forwards this to the Registrar-General of Births, Deaths and Marriages (the Registrar) together with the notification of birth.

A stillborn child means a child of at least 20 weeks gestation or, if it cannot be established reliably whether the period of gestation is more or less than 20 weeks, with a body mass of no less than 400 grams at birth, who exhibits no sign of respiration or heart beat, or other sign of life, immediately after birth: BDMA Dictionary.

If the mother has not been admitted to hospital within 24 hours after the birth, the doctor or midwife caring for her must forward this medical certificate directly to the Registrar: BDMA s 5(1).

B. Death other than stillborn child

When a person dies, the medical practitioner who attended during the dead person's last illness, or who viewed the body must give the Registrar notice of the death and cause of death within 48 hours after the death: BDMA s 35. BDMReg Regulation 4 sets out the requirements for the notice.

C. Death by infectious disease

The Public Health Act 1997 (ACT) s 102A(2) provides that a doctor must notify the chief health officer of certain deaths:

(2) A doctor commits an offence if--

(a) the doctor has reasonable grounds to believe that a dead person had, or may have had, a notifiable condition at the time of death; and

(b) the person was a patient of the doctor immediately before death, or was examined by the doctor after death; and

(c) the doctor fails to notify the chief health officer, in accordance with the applicable code of practice, about the person's notifiable condition as soon as practicable.

Maximum penalty: 5 penalty units.

General duty to report death

The Coroners Act s 77(1) imposes a duty to report death to the coroner or a police officer:

(1) A person commits an offence if the person--

(a) knows that a death has happened; and

(b) has reasonable grounds to believe that--

(i) a coroner would have jurisdiction to hold an inquest in relation to the death; and

(ii) the death has not been reported to a coroner or a police officer; and

(c) does not report the death to a coroner or a police officer as soon as practicable after becoming aware of it and having the reasonable grounds mentioned in paragraph (b).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

The police in turn have a duty to inform the coroner: Coroners Act s 77.

Inquest by the coroner

The Coroners Act s 13 provides that an inquest must be held if a person:

• is killed;
• is found drowned;
• dies, or is suspected to have died, a sudden death the cause of which is unknown;
• dies under suspicious circumstances;
• dies during or within 72 hours after, or as a result of- (i) an operation of a medical, surgical, dental or like nature; or (ii) an invasive medical or diagnostic procedure; other than an operation or procedure that is specified in the regulations to be an operation or procedure to which this paragraph does not apply;
• dies and a doctor has not given a certificate about the cause of death;
• dies not having been attended by a medical practitioner at any time within the period commencing three months before the death;
• dies after an accident where the cause of death appears to be directly attributable to the accident;
• dies, or is suspected to have died, in circumstances that, in the opinion of the Attorney-General, should be better ascertained; or
• dies in custody.

In most cases the coroner has a discretion to dispense with the holding of a full inquest if he or she thinks it unnecessary after making preliminary inquiries, but the coroner cannot make that decision if the death occurred in custody or within 72 hours of an operation: Coroners Act ss 13, 14. A post mortem examination may be ordered: Coroners Act ss 20-33.

The previous Coroner's Act 1956 (ACT) conferred a right on the family of the deceased person to request an inquest. The present Act confers no such right. However, the immediate family of the deceased can make certain requests of the coroner. They can ask to see the body, inspect the scene, have their medical practitioner present at any post-mortem. If the coroner refuses any of these requests, the family can ask the Chief Coroner to reconsider the decision.

If an inquest is held, witnesses or relatives often wish to have legal representation at it. The coroner may give leave to any witness or person who has sufficient interest to appear and cross-examine either in person or by a legal representative: Coroners Act s 42.

In the ACT the coroner sits alone: Coroners Act s 4(2). The object of the inquest is to determine the identity of the dead person, when and where death occurred, the manner and cause of death; and to determine if there is a prima facie case against any person for an indictable offence: Coroners Act ss 52 and 53. An inquest is not a trial, however, and the coronial inquiry is not bound by the rules of evidence: Coroners Act s 47.

Once the inquest is completed, members of the immediate family of a deceased for whom an inquest (other than an inquest into a death in custody) has been held may request a copy of the coroner's findings. Contact the Coroner's Court Registry on (02) 6217 4231 or write to: The Registrar, Coroner's Court, GPO Box 370 Canberra ACT 2601.

In coroner's cases the body is taken to the morgue in Kingston. A relative may be asked to identify the body there, and the usual procedure is that they are shown into a room with a curtained window, the curtain is drawn back and the body is seen through the window. (In theory there is no reason why the relative could not see the body directly).

Certificate under the Coroners Act: burial does not have to await the inquest but may take place as soon as the coroner issues an authorisation stating that there is no reason why the body should not be buried or cremated or taken out of the Territory: Coroners Act s 16.

Arranging the Funeral

Who organises the funeral?

If there is a will which names an executor, then he or she is normally entitled to custody of the body and has ultimate control of its disposal. As to disputes over possession of the body for disposal, see Reid v Love And North Western Adelaide Health (2003) SASC 214; Burrows v Cramley (2002) WASC 47; Smith v Tamworth City Council (1997) 41 NSWLR 680. The next of kin are not obliged to arrange a funeral. If there is no executor or relative interested, then a friend may organise the funeral without necessarily becoming obliged to administer all the dead person's affairs. See, however, Who pays for the funeral?. In the absence of any interested person the hospital usually refers the death to the Office of the Public Trustee for the ACT, which can arrange the funeral. Sometimes the police or hospitals refer deaths to the Welfare Branch, ACT Administration, which can also arrange the funeral.

Most ACT funeral directors produce helpful free publications about organising funerals.

Directions from the deceased as to the means of disposing of his or her body have no binding legal effect except in one instance. If the dead person directed before he or she died that his or her body not be cremated then any application for cremation must be refused: CCreg 8(1)(c). As to the use of the body or organs for scientific or medical purposes: see The Use of the Body or Organs for Scientific or Medical Purposes.

Who pays for the funeral?

A. Generally

The funeral directors will regard the person who authorises the funeral and enters into the contract with the funeral director as the person who undertakes the legal and financial obligation.

One of the major difficulties is the ACT practice where many funeral directors require payment of the total cost before the funeral takes place. In these cases, a family member will usually agree to become personally liable and settle the account with the funeral director. This can cause distress for family members who may not have access to the considerable sum required in a short time. Of course, individual funeral directors make individual arrangements depending on the circumstances. If the executor is arranging the funeral, the funeral directors often prepare a tax invoice and give that together with a copy of the medical certificate to the Bank who will often agree to release to the executor the amount of money from the deceased's bank account to pay the bill.

B. Pre-paid funerals

Pre-paid funeral arrangements with funeral directors are becoming more common. There is no industry standard contract in these circumstances. Many funeral directors are party to a plan honoured by funeral directors Australia-wide. If that is not the case, and the deceased has moved before death, that person may be able to have the funeral director transfer the arrangements to another funeral director near where they now live. If you have a pre-paid funeral plan, ensure you contact the funeral director when you move so that your plan can be honoured in the new location. A pre-paid plan certainly removes a financial burden on the family at a time of grief, and the family can also be sure that the funeral and burial arrangements are those the deceased wanted.

It is vital to make sure that your relatives know about your pre-paid funeral plan if you have one. There is no central registry of funeral plan payments, and your relative may be morally sure that you paid for a funeral plan, but may be unable to find and pin down a funeral director who will admit to having entered into the plan. If this happens, your relative will end up having to pay again in full for the funeral!

C. Get quotations

The person who arranges the funeral should obtain quotations as to the costs and be aware of exactly what the quote covers and whether there are other costs not covered. For example, most ACT funeral directors organise the death and funeral notices in the newspapers, and any cemetery fees and add them to the final account.

D. Deceased has few assets; Deaths referred to the Public Trustee

When a death is referred to the Public Trustee, he or she assesses whether the estate is sufficient to pay for a funeral. If it is, then the Public Trustee organises a funeral and recovers the cost from the estate.

If a death is referred to the Public Trustee and it is thought that the estate is insufficient, the matter is referred to the Welfare Branch of the Office of Children, Youth and Family Support, which is part of the ACT Department of Housing and Community Services (for contact details see Contacts and Links). The Welfare Branch makes the funeral arrangements with a local undertaker and pays the cost of the funeral. If any money is obtained from the estate the Public Trustee reimburses the Welfare Branch. In most cases deaths of destitute persons are referred directly to the Welfare Branch by the police or the hospital welfare workers or by relatives who are unable to pay. In the ACT, the contract to provide these funerals is sent out to tender every three years. The disbursements in each case are met by the government, and the undertaker receives a fixed contract price for each funeral. Like other funerals, there will be a service usually at the crematorium or cemetery, and the grave will have a plaque placed on it, in consultation with any family members.

E. Funeral benefits

Some possible sources of funeral benefits are:

(i) life insurance;

(ii) health funds;

(iii) Workers' Compensation;

(iv) Veterans' Benefits (available to survivor of a veteran or to veterans in charge of a funeral);

(v) The Department of Families, Housing, Community Services and Indigenous Affairs (through Centrelink) now contributes an additional pension payment as a contribution to funeral benefits.

(vi) social clubs;

(vii) trade unions; and

(viii) superannuation.

(See also Who pays for the funeral? and Type of costs).

Is it necessary to employ an undertaker?

Nothing in the law requires the employment of an undertaker. However, due to the nature of the task, the legislative requirements regarding certification, and the short time frame between death and burial, we have not discussed it further in this publication. The vast majority of people employ a funeral director.

Is it necessary to have a coffin?

For burials and cremations, an application for burial or cremation under CCA s 20, and CCreg 7, 8 and 9 (see also Procedure for burial) asks for the dimensions of the coffin. The Regulations now require that the human remains must be in a coffin, casket or other container approved by the chief health officer under the CCreg. The operator of the cemetery does not object to having a body brought to the cemetery in a coffin and then removed from the coffin and wrapped in a cloth, for example for Islamic burial.

If the body is going to be interred in the new Woden mausoleum, the body must be embalmed. If you are using an in-ground vault burial, or the crypt style burial at the mausoleum, the body must be embalmed and enclosed in a sealed corrosion resistant metal lined coffin: CCreg 10.

Health regulations require this procedure also if there is a delay of more than ten days between death and burial, or the body is being transported overseas for burial.

Arranging Burial or Cremation

A. Procedure for burial

The usual procedure is for the funeral director to approach the Cemetery Office to make a booking. If the intention is to have a headstone this must be made clear at the time of booking as large headstones are permitted in some sections of the cemetery only. The lawn cemetery now provides two sorts of small plaques. The first is the traditional brass flat plate that sits flush with the lawn. The second is a concrete headstone about 15 cm in length which sits about 10 cm high, with the brass plaque attached. Family members choose the wording to go onto the plaques in either case.

If the family require a crypt burial in the mausoleum at Woden, the funeral director can arrange that.

The funeral director then submits to the ACT Public Cemeteries Board on behalf of the person responsible for arranging the funeral, an application for burial: CCreg 6,7. The application must also contain the notice of death issued under s 35 BDMA, the Certificate (referred to at Inquest by the coroner) from the coroner if applicable: Coroners Act s 16). The operator of the cemetery needs to be satisfied that the body of the deceased is in a coffin, casket or other container approved by the chief health officer: CCreg 7(1)(d). The cemetery burial fees are paid at this stage by the funeral director on behalf of the responsible person and a receipt given. These fees are fixed by notice in the ACT Government Gazette (see www.gazettes.act.gov.au).

B. Where can burials take place?

The ACT Public Cemeteries Board now administers the Woden, Gungahlin and Hall General Cemeteries. Other than the public cemeteries, there are cemeteries at Tharwa and St John's Church. The Cemeteries Trust, funeral directors, or in some cases ministers of religion know how to contact the trustees of these other cemeteries.

Burial elsewhere than in a public cemetery or private burial ground requires the written consent of the Minister for Urban Services: CCAct s 7. No guidelines have yet been established as to when such consent will be given, but it would seem advisable to approach the minister with a specific proposal before death. Section 45 of the CCAct gives a right of appeal to the Administrative Appeals Tribunal if the minister refuses consent.

C. Procedure for cremation

Any cremation must occur within the ACT in premises licensed as a crematorium: s 25 CCAct. You cannot apply to the Minister for Urban Services to conduct a cremation elsewhere. The only Crematorium in Canberra is privately run - see Contacts and Links for contact details.

The funeral director submits to the operator of the Crematorium on behalf of the person responsible for arranging the cremation, an application for cremation: CCreg 6, 8. The application must also contain the notice of death issued under s 35 BDMA, the Certificate (referred to at Inquest by the coroner) from the coroner if applicable :Coroners Act s 16. For cremation, the additional requirements to burial are a certificate from a doctor designated as a medical referee under the CCAct stating there is no medical reason why the body should not be cremated. The operator of the cemetery needs to be satisfied that the body of the deceased is in a coffin, casket or other container approved by the chief health officer: CCReg 8(1)(d). The fees are paid at this stage by the funeral director on behalf of the responsible person and a receipt given. These fees are fixed by notice in the Gazette

In the case of cremation for a still-born child, the requirements differ slightly CCReg 9.

If the deceased directed that he or she not be cremated then the Crematorium must reject the application for cremation: CCreg (1)(c). In practice, any dispute within the family has to be resolved before the funeral director pursues arrangements for cremation any further.

D. Notice of cremation and time of cremation

The law does not require that any definite period of notice be given to the Crematorium. The Crematorium's facilities, however, are not unlimited and only a certain number of cremations a day are possible. The Crematorium operates Monday to Friday.

Possession of the Body and Moving the Body

Obtaining possession of the body

When a person dies in a hospital or nursing home, the family may contact the funeral directors of their choice. In turn, the funeral director contacts the hospital or nursing home administration, and collects from them the doctor's certificate regarding the cause of death, and an order to the mortuary attendant to release the body from the hospital mortuary into their care. When a person dies at home, the ambulance takes the body to the hospital, and the procedure outlined above is followed. The mortuaries of the public hospitals do not charge for storing a body. In a case involving the coroner the body will have been taken to the morgue in Kingston. The funeral cannot proceed until authorised by the coroner. The coroner has to issue a Schedule 2 Certificate (referred to at Inquest by the coroner) for this purpose: Coroners Act s 16.

Taking the body out of the ACT

The ACT Coroner has power to remove a deceased's body outside the ACT if requested to do so by an interstate coroner conducting an inquest into the deceased's death in that State: Coroners Act s 31.

Where a death has been reported to the coroner, a person wishing to remove the deceased's body out of the ACT must obtain a certificate from the coroner under the Coroners Act s 16 outlining the cause of death, and stating that there is no reason why the body should not be taken outside the ACT.

If the coroner is not involved, the funeral director or person responsible for organising the funeral has 28 days from the date of death to advise the Registrar in writing of the location and type of burial, the name and residential address of the deceased, a statement as to whether the death was reported to the coroner, the place and manner of disposal, as well as other matters required by the Regulations: s 37 BDMA. The law of the place to which the body is moved governs cremation and burial at that place, but the person organising it must still comply with these requirements.

The practice is for ACT funeral directors to complete a "removal from Territory" form, notifying the Registrar that the body has been removed from the Territory, and who the responsible funeral directors now are. The Registrar will then look to the newly nominated funeral directors to complete the matters required by s 37 BDMA.

Bringing the body into the ACT

The law of the place where the death occurred must be complied with when taking the body from that place. There is provision for using certificates under the law of the place where the death occurred instead of certificates under ACT law: CCreg 6(1)(d).

Religious Services

There is provision for dividing public cemeteries into different portions. The Canberra public cemeteries are divided into sections for General Cemetery, Returned Soldiers and different religious denominations. Religious Services can be conducted in accordance with the rites of different religious traditions at the cemetery.

The Use of the Body or Organs for Scientific or Medical Purposes

The law in the ACT is governed by the Transplantation and Anatomy Act 1978 (ACT) ('the Transplantation and Anatomy Act'). References are to section numbers in that Act. See also the Health Law Chapter at Organ Donation by Brain-Dead Persons, and Autopsies.

Transplants

A. Body in hospital

Where deceased wished organs to be used: if a person who dies in hospital, or whose dead body has been brought into hospital, has expressed in her or his lifetime the wish for, or consented, to the removal after her or his death of an organ or tissue for medical or scientific purposes, a medical practitioner in the hospital who has been designated for the purpose may authorise in writing the removal of the organ or tissue from the body: Transplantation and Anatomy Act s 27(1).

Such an authorisation can also be given, so long as the deceased was not known to have objected during life to such removal and the "senior available next of kin" (s 37) does not object to the removal: Transplantation and Anatomy Act s 27(2). "Senior available next of kin" is defined in the Dictionary. If there is no senior available next of kin, the authorisation can be given so long as the deceased was not known to have objected to such removal: Transplantation and Anatomy Act s 27(3). An objection by anyone defined as "senior available next of kin" will preclude the authorisation being made: Transplantation and Anatomy Act s 27(5).

The objection of a next of kin cannot however override the positively expressed wish of the deceased during her or his lifetime that organs or tissue be removed. The next of kin can object only under s 27(2) of the Transplantation and Anatomy Act and not under s 27(1) which means that the deceased's wishes will prevail over that of her or his next of kin.

B. Body not in hospital

If a person dies and the body is not in a hospital, a senior available next of kin may authorise the removal of an organ or tissue so long as no other next of kin objects and so long as the deceased had not expressed an objection to the removal: Transplantation and Anatomy Act ss 28(1) and (2).

Again, if the deceased had expressed a positive wish that her or his organs or tissue be removed, this will override any objection by a next of kin: Transplantation and Anatomy Act s 28(3).

If the deceased died in circumstances such that the coroner has become involved (see Inquest by the coroner), the coroner's consent to removal of an organ or tissue is required unless the coroner has specifically dispensed with the need for consent: Transplantation and Anatomy Act s 29.

Donation of body to medical schools

The position as described above in relation to organs and tissues is the same in relation to donation of the whole body to a medical school, a distinction again being made between authorization by a medical practitioner in a hospital: Transplantation and Anatomy Act s 37, and authorisation by a senior next of kin if the body is not in a hospital: Transplantation and Anatomy Act s 38.

Similarly, if the deceased expressed a positive wish during life (and did not change her or his mind) that her or his body be donated to a medical school, this will override any objection by a next of kin: Transplantation and Anatomy Act s 39.

If the coroner is involved he or she must consent to such use of the body: Transplantation and Anatomy Act s 40.

It is the responsibility of the medical school to dispose properly of a body which has been donated to it for training of medical students. This will save the family the costs of burial.

Donation of organs -- arrangements before death

Any person who wishes to have her or his body or organs used for medical or scientific purposes on death will expedite matters if he or she makes arrangements during life. (As mentioned above, an express statement during life that the person wishes her or his body or organs to be used for scientific or medical purposes will override any contrary wishes of surviving next of kin.)

A person can now register on line for the Australian Organ Donor Register ("the Register") This is accessible at www.medicareaustralia.gov.au/public/services/aodr/index.jsp. For further contact details see Contacts and Links. Alternatively, you can collect a form from any Medicare office and lodge it there.

The Register has been in operation since 2000 and is a joint initiative of the Commonwealth and State Governments. People who had already registered for organ donation in their State before that date were automatically transferred over to the Register. Unfortunately this is not the case for the ACT, so ACT residents must register again with the Register to be assured that their wishes will be granted. People who registered with the Health Insurance Commission should reregister, as the Register is now under the control of Medicare.

As well as registering, it is important for the person to make a written statement of their wishes and discuss it with their family.

Can you sell your body or organs?

The Transplantation and Anatomy Act s 44 prohibits a person from selling her or his body or organs. Criminal penalties apply to both parties in any such transaction, and the contract is void.

After the Funeral, Cremation or Burial

Notice of burial or cremation

After the final interment of the remains, the person in charge of the burial or cremation (normally the undertaker) will give to the Registrar of Births, Deaths and Marriages a notice in writing: BDMA s 37. That notice informs the Registrar of the name and last residential address of the deceased, whether the death was reported to a coroner and the place and manner of the disposal of the body. The Regulations set out the detailed requirements: BDMReg 9, 10.

What happens to the ashes after cremation?

The operator of the Crematorium may deliver the ashes to the person who arranged the cremation or to any other person with the consent in writing of the person who arranged the cremation: CCReg 11.

The person who obtains the ashes can arrange for them to be interred in a cemetery, or can dispose of them herself or himself as he or she wishes. It is becoming more common for family members to choose to have some portion of the ashes interred at the Crematorium, and some interred or scattered at a private location.

Alternatively, the operator of the Crematorium may give notice to the person who arranged the cremation asking what is to be done with the ashes. The Crematorium will inter the ashes at the request of that person (for example in a special wall, or under a rose bush) or, if they do not receive a reply within one year, they can inter them at the Crematorium, or deliver them to an adult family member of the deceased: CCReg 11.

Information for the Registrar of Births, Deaths and Marriages

The Registrar gets the necessary details (relating to the deceased's place of birth, age, marriages, children, parents, and so on) from a notice in writing which is lodged by the funeral director after the funeral: BDMA s 37.

Death Certificate

After the funeral the next of kin will in all probability need to procure a "Death Certificate" to prove the death. The Death Certificate is necessary in order to administer the estate of the deceased, and for other reasons, such as obtaining funeral benefits. The "Death Certificate" referred to here is the one issued by the Registrar of Births, Deaths and Marriages, not the Medical Certificate given to the Registrar by the medical practitioner. You can apply for a death certificate online at https://www.rgoonline.act.gov.au if you are next of kin as well as by mail or in person. The cost is $36.00. An additional $5.00 is charged if you require the certificate to be mailed to you.

Type of costs

The following list is a guide to the type of costs incurred:

• fees for the two doctors;
• coffin;
• cemetery plot;
• grave digging;
• plaque;
• crematorium -- plus a fee for collection of remains;
• newspaper notice: variable;
• application for death certificate ; and
• cost of the funeral: varies with the style of service required and the cemetery or crematorium selected.

It is very difficult to give an estimate of a basic, average cost. You should inquire from two or three funeral directors. This of course can significantly increase depending on the type of coffin chosen, and plaque and other expenses. See Who pays for the funeral? Under "A. Generally" for potential sources of funds. It is an expense borne by the estate of the deceased.

Many of these costs are avoided if the body is donated to a medical school: see Donation of body to medical schools.