Can a person entitled to a military [police, etc.] funeral make the arrangements themselves?

Factual Questions
1

One issue that interests me and that I have been researching for a long time is the power of a person to make binding arrangements for what will be done with their body after they die, rather than leave the organization of this / the final decisions to their survivors. There is one aspect of this question to which I have found it difficult to find an exact answer; this would be a question for those who have either worked as funeral directors or who have been involved in veterans affairs or mortuary affairs in the military. Before posing the question, I will illustrate the practical situation that it relates to with a situation in the TV show “Six Feet Under”, set in a funeral home:

In the episode “Brotherhood”, a man called Paul Kovich comes into the funeral home. He is extremely bitter about the death of his brother Victor, who died following health problems resulting from his service in the Gulf War. Paul wants his brother cremated and does not want any kind of ceremony, let alone a military funeral. This doesn’t feel right to Nate, one of the funeral directors, and he finds out from someone at the veterans’ hospital (IIRC) where Victor died that Victor had written down his wishes to be buried at a national cemetery. David, Nate’s colleague and brother, thinks that, seeing as Paul the brother is their client, they should honor his wishes over those of his decedent. But Nate can’t accept this, and so, after they receive the urn with Victor’s cremains and Paul comes to pick it up, he is astounded to find that Nate has arranged for a military funeral, which is about to take place, has taken it upon himself to invite some other veterans that Victor had met, and has also arranged for subsequent burial in the local national cemetery, and is in informed that this is “an option that can be cancelled at no cost to you”. When told that this is in line with Victor’s stated wishes, an infuriated Paul is at first in denial that they actually are his wishes; ultimately, faced with what is effectively a done deal, he allows the funeral to proceed.

Now on to my practical question. Victor, the decedent, was entitled to a military funeral, but did not communicate his wishes to his brother, presumably because, as his brother admitted when he realized these were actually his wishes, he knew Paul would have highly disapproved and tried to talk him out of it. But was there anything Victor could have done while alive and in the VA hospital to bypass Paul on the question? Could Paul have, without telling his brother, pre-planned his funeral with a funeral home, explicitly demanding a burial with military honors at the national cemetery as part of the funeral - and would the funeral home have had the right to request the execution of Victor’s wishes by the military even if Paul, as next-of-kin, objected?

I am aware that my question is at least partly incumbent on whether in that particular state, there is a general rule of law as to whether the descedent or his/her survivors have the ultimate legal right to decide what happens to their remains after death. this link summarizes the laws on this particular question in all American states. Assume that what I am asking pertains to a state where the general rule of law is that a decedent’s stated wishes for the disposition of their remains prevail over any contrary wishes of their family. With that assumption in mind, can a person who is an eligible veteran of the US Armed Forces arrange alone through a funeral home that their funeral will include the military honors (and possible burial in a national cemetery) that they are entitled to? I.E. will the military honor their request if it comes from the veteran him/herself and not from a member of their family?

I will summarize what my research has found so far. In effect, the actual federal law, that is, 10 U.S. Code § 1491 (a), provides that “The Secretary of Defense shall ensure that, upon request, a funeral honors detail is provided for the funeral of any veteran, except when military honors are prohibited under section 985(a) of this title.” Note that this provision does not state who may make the said request. However, the general information I have found about this matter on a number of Veterans’ Affairs website interpolates “if requested by the family”. But what if a veteran made the request him/herself through a funeral home with which he/she was pre-planning his/her funeral and did not involve their family? ** (some people, BTW, don’t have any family to see to their burial). Before arranging for the funeral detail, would the military want to know that the request was coming directly from the next-of-kin, or would they simply honor the request made by the funeral director in the name of the stated wishes of the decedent him/herself?**

I have also found this in DoD Instruction 1300.15, which governs these things in more detail: “Upon request of the next of kin, authorized representative, or authorized funeral director, the military funeral honors coordinator arranges the provision of funeral honors for an eligible beneficiary.” Can the “authorized representative/funeral director” be one that was authorized by the decedent him/herself?

Above, I have limited my question to those who die as honorably discharged veterans of the United States Armed Forces. To expand the topic, if we talk about active duty members of the US military (thus those who may be killed in action), a different regulation governs them than veterans. They are supposed to designate a “person authorized to direct disposition of their remains” (PADD) who will decide what happens to their body if they die on active duty. In the past, this had to be someone somehow related to the service member, but as I understand, current law allows one to designate anyone as PADD (not sure if it can be someone working for an organization, such as a funeral home). I presume this would give the service member some power in the matter, I.E. as a minimum to choose someone likely to honor their wishes, though I am a bit confused as to whether the PADD (as opposed to the Primary Next of Kin, who may or may not be the same person) is authorized to make decisions about whether or not the funeral will be a military one or a private one, or only the decision of whether the body is buried or cremated, and where.

In case there is anyone here knowledgeable about these things as they regard another country’s military, or a different outfit (e.g. a specific police department, fire department), can you imagine a situation where a serving member would be able to make binding arrangements while still alive, that if they are killed in the line of duty, etc., they will receive the military/police/fire department/state etc. funeral they are entitled to, even if for some reason their next-of-kin is opposed to it and would prefer a private funeral or no funeral at all?

2

You’re asking two separate questions:

  1. Is the soon-to-be-deceased eligible for a military funeral?

  2. If so, can the soon-to-be-deceased ensure, prior to death, that their wishes will be respected and they’ll get a military funeral?

The first question depends on the laws and customs of the particular military. Dunno the answer to that.

But on question 2, if the soon-to-be-deceased is capable of making a will, they can line up the military funeral themselves. Assuming they’re in a jurisdiciton where they have complete choice over their executor, they don’t have to have their next-of-kin as their executor.

If they can line up someone else who doesn’t have any problems with a military funeral and is willing to be executor, then they have their will drawn up, naming that person as an executor, and giving explicit instructions in the will that it is their wish to have a military funeral, consistent with the laws and customs of the military branch in which they served.

They could also include in the will that they have specially arranged with this person to carry out their last wishes, have considered other options, and have concluded that the person they have named as executor will not have any moral or ethical objections to ensuring a military funeral, and can be trusted to carry out their funeral as desired.

None of this is meant as legal advice, of course, since so much depends on the law of the place where the person dies. Just meant as a comment on a hypothetical situation.

3

Said another way. …

As a matter of law, the decedent can arrange things such that their wishes are to be followed.

As a matter of fact, the decedent is depending on the living to implement those wishes. And has no practical way to enforce those wishes if the living choose post mortem to have different ideas. There is no government police department of deceased advocacy that will hold the living to their legal duties. it would require an aggrieved living person with legal standing to involve the courts to enforce the written wishes of the deceased. The court supervising the settling of an estate will have oversight over some of this. If the will is done right the court will have oversight of most of this. And yet stuff can still happen.

The specifics of a military or police funeral is just one narrow example of the general issue.

4

From what I recall, you’re from Canada - as am I (and you’re a piper? - I am that too). You mention executors. It is my understanding that in most Canadian provinces, the executor of your estate is the person who gets the final say in arrangements for the disposition of your remains, and if you have no executor, your next-of-kin. It’s certainly the case in Ontario (I checked with a funeral director while he was driving me to the burial of a veteran at whose funeral I was piping). However, at least two provinces give some protection to the wishes of the deceased - article 42 of the Civil Code of Quebec says that a person of full age may determine the manner of the disposition of their remains (and a minor with parental consent). I don’t know if any other provincial laws provide an explicit mechanism for enforcement. In British Columbia, section 5 of the Cremation, Interment and Funeral Services Act (titled “Control of disposition of human remains or cremated remains”) provides in paragraph 5 (1) (a) that the right to control the disposition of remains vests in and devolves on, in first priority, “the personal representative named in the will of the deceased”, thus an authorized representative appointed by the deceased for that purpose. Of course, these rules don’t govern the participation of external / third parties such as the military. Looking at the drill manual of the Canadian Armed Forces, there is only mention, in several places, of how the wishes of the next-of-kin are to be respected, without any reference to the wishes of the deceased, an executor or an authorized representative: https://www.canada.ca/en/services/defence/caf/military-identity-system/drill-manual/chapter-11.html#2-10 - the question is, how narrowly or broadly they would interpret “next-of-kin” - your actual spouse / closest relative, or for example, someone you designated as such for the purposes of your military life.

You are completely right that, once one dies, it is up to the living to have the will to carry out the wishes of the deceased and that there is not a “funeral police”. However, in many jurisdictions, a person may appoint a trusted representative to carry out their wishes, if for whatever reason they don’t want their next-of-kin to make those decisions. Were there to be a conflict with family members over the issue, the representative could supposedly take the matter to court. Besides the British Columbia statute mentioned above, a particularly good example of this is the law in New York State, where section 4201 of the Public Health Law allows a person to designate an agent to dispose of his or her remains and includes a statutory form that may be used. This legal rule was adopted as part of a legal reform that followed the September 11 terrorist attacks, where there were a lot of victims and, because the law prior to this tragedy was not clear enough on the matter, there were multiple cases where members of someone’s family argued over their remains.

In France, the right to determine the nature of one’s funeral is explicitly enshrined in a law of 15 November 1887, and there is, in addition, article 433-21-1 of the Penal Code, according to which someone who has given the deceased a funeral with a character contrary to his or her known wishes, or to a decision of the court on the matter, is liable to 6 months’ imprisonment and a 7500 EUR fine (“Toute personne qui donne aux funérailles un caractère contraire à la volonté du défunt ou à une décision judiciaire, volonté ou décision dont elle a connaissance, sera punie de six mois d’emprisonnement et de 7.500 euros d’amende”).

5

I checked w my wife, a retired US estate attorney. She practiced in several states over her career. Her answer:

As you suggest, in the US this is a creature of state statute. And frankly it’s rather rare that state statute provides a clear and unequivocal right for the decedent to specify the disposition of remains or to make a binding appointment of a decider.

In states lacking such clear statute including such instructions in a will, typically appointing the executor as the disposition decider, is a stopgap that may or may not prove effective. Mostly depending on just how hard the rest of the family is willing to fight. But no harm in trying to make that stick.

In the US this is deeply entwined with the gay marriage and gay rights flail, where so many families desperately want to prevent their deceased gay family member’s SO (or nowadays widowed spouse) from having any control over the body. A disgusting attitude in my view, but that’s the USA for you.

6

Yes, and one issue which has occurred is that a transgender person died and their family had the deceased’s appearance altered before the funeral to reflect the gender they were assigned at birth rather than the one that they identified with.

7

As another (very small) data point, in my prior career as a firefighter - another occupation known for big funerals - each of us would annually fill out a form in case of death. It applied to both line of duty and off duty death. Details of the funeral, disposition of any benefits, and who to notify. We never had cause to exercise anyone’s plans, but they were there. I can assure you the decedent’s decisons would be held to as much as possible, unless his spouse wanted to to downplay it. If the deceased had said no funeral or service, his wife could not request a big production. If he asked for a big production, we would hold something smaller if the family requested it.

Not every fire department does the planning thing, but our chaplain was very much on top of that sort of thing.