The days following a loved-one’s death is a time for mourning and reflection.  Unfortunately, during this already-difficult time, decisions must be made quickly concerning the disposition of the deceased person’s body.  Discussions prior to the passing can help to alleviate guesswork about how the deceased would have wanted his remains to be handled.  Where there has been little or no discussion, deciding how to dispose of the deceased’s remains can be a daunting task.  Either way, however, someone must ultimately plan a funeral, arrange a memorial service, and provide for the deceased’s final resting place.

Recognizing that there must be an authorized person to make these final decisions, state legislatures have given some direction about who has that authority.  These statutes can be particularly helpful when there are diverging opinions about how the deceased would have wanted to be treated after his death.  Even in the case where the deceased has an estate plan, the immediacy of funeral arrangements can diminish the efficacy of planning primarily designed to provide for those who survive the deceased. 

The following provides a general overview of who has authority to make decisions for a deceased’s body in the Mountain West.  Each state has its own nuances and details that are not fully discussed here so it is important that appropriate legal advice be obtained if there is any question about who has the proper authority to make burial or other related decisions.

Arizona

Arizona allows a legally competent adult to prepare a written statement directing how the adult would like his remains to be disposed.  The statement may be part of the adult’s will or it may be contained in a separate document, such as a power of attorney for health care or a durable financial power of attorney.  The statement must be signed and dated and either notarized or witnessed by at least one other adult in the signer’s presence. 

The duty of burying the body or providing other funeral and disposition arrangements for a deceased person falls upon:

1. The deceased person’s surviving spouse;
2. The deceased person’s agent under his most recent power of attorney for health care or durable financial power of attorney if the power of attorney specifically grants the agent authority to dispose of the deceased’s remains;
3. If the deceased was a minor, the deceased’s parents;
4. The deceased’s adult children;
5. The deceased’s parents;
6. The deceased’s adult siblings;
7. The deceased’s adult grandchildren;
8. The deceased’s grandparents;
9. An adult who exhibited special care and concern for the deceased;
10. The person who was acting as the deceased’s guardian at the time of death;
11. Any other person who has authority to dispose of the deceased’s body;
12. A charity or religious organization willing to assume responsibility;
13. If the deceased was a prisoner, the department of corrections;
14. The county.

Colorado

In Colorado, a person may make a declaration specifying how the person would like his remains to be disposed, including appointment of a person to direct the disposition of his remains, the ceremonial arrangements to be performed after the person’s death, and the rights, immunities, or other terms relating to third parties dealing with the declaration.  The declaration must be signed and dated by the person making the declaration.  The declaration may also be notarized or witnessed in writing by at least one other person.

The right to control disposition of a deceased person’s remains and to make funeral arrangements belongs to:

1. The person named in a deceased person’s declaration described above;
2. A personal representative or special administrator appointed to administer the deceased’s estate;
3. The nominee for appointment as personal representative under the deceased’s will if the court has not yet appointed someone to administer the estate;
4. The deceased’s surviving spouse;
5. A person designated in a beneficiary agreement;
6. The deceased’s adult children;
7. The deceased’s parents or legal guardians;
8. The deceased’s adult siblings;
9. Any person who is willing to assume legal and financial responsibility for disposition of the deceased’s remains;
10. The public administrator who controls indigent burials in the deceased person’s county.

Idaho

In Idaho, a person may provide written instructions for disposition of the person’s remains as part of a “prearranged funeral plan.”  A prearranged funeral plan means a plan for the final disposition of the person’s remains that has been funded in advance of the person’s death.  The prearranged funeral plan is a contract between the person and those who have been hired to carry out the person’s desires after his death.

If the deceased person does not have a prearranged funeral plan, and for any decisions to be made that are not covered in a deceased’s prearranged funeral plan, the following persons have authority to make decisions regarding the deceased person’s remains and funeral arrangements:

1. The person designated in a written document signed by the deceased before his death.
2. The person designated as agent under a durable power of attorney for health care by the decedent, unless the power of attorney specifically denies such a right;
3. The person designated as agent under a durable financial power of attorney, but only if the right is specifically granted to the agent;
4. The deceased’s surviving spouse;
5. The deceased’s adult children;
6. The deceased’s parents;
7. The person appointed by a court as the personal representative or administrator of the deceased’s estate;
8. The person nominated as personal representative of the deceased’s estate if one has not been appointed by the court;
9. The deceased person’s nearest relative by degree of kinship;
10. The person acting as the deceased’s guardian at the time of death;
11. The person acting as the deceased’s conservator at the time of death.

Montana

Montana allows a person to enter into a prepaid funeral arrangement which is a contract with a mortuary to carry out the person’s funeral and disposition as directed in the contract.  The instructions given to the mortuary must be either in a signed, written document that has been witnessed by two people or in a replayable video that is accompanied by a signed attestation that has been witnessed by two people.

Montana also allows a person to authorize another person to control the disposition of his remains in a document that is not a contract with a mortuary.  Such an authorization is made in the form of a notarized affidavit or written instrument and may include specific instructions to the authorized person about the deceased person’s remains and funeral arrangements. 

In the absence of a prepaid funeral arrangement, or if the prepaid funeral arrangement does not name a person with the right to control disposition of the deceased person’s remains, the following people have the right to control the remains of the deceased person, including the location, manner, and conditions of the disposition, and arrangements for funeral goods and services:

1. The person named in an affidavit or written authorization described above;
2. The deceased’s surviving spouse;
3. The deceased’s children;
4. The deceased’s parents;
5. The deceased’s siblings;
6. The deceased’s grandparents;
7. The deceased’s guardian at the time of death;
8. The personal representative of the deceased’s estate;
9. The deceased’s relatives by the nearest degree of kinship;
10. The state or local public officer responsible for arranging disposition of the deceased’s remains;
11. Any other person, including the mortician with custody of the remains, who is willing to assume the responsibility to arrange for disposition of the deceased’s remains.

Nevada

A person may authorize another person to order his burial or cremation in Nevada in a validly executed will or durable power of attorney or may execute an affidavit before a notary public.  In Nevada, a will is validly executed if it is in writing, signed by the testator, and attested by at least two competent witnesses who sign the will in the presence of the testator.

The following persons may order the burial or cremation of a deceased person’s remains in Nevada:

1. The person granted authority in the legally valid document or affidavit described above;
2. The deceased’s spouse;
3. The deceased’s adult children;
4. The deceased’s parents;
5. The deceased’s adult siblings;
6. The deceased’s grandparents;
7. The guardian of the deceased person at the time of death;
8. Any other person willing to accept the legal and financial responsibility for disposing of the deceased person’s remains;
9. The county or state public officer responsible for the deceased’s remains.

New Mexico

In New Mexico, an adult may authorize his own cremation by stating his desire in a written statement signed by him and notarized or witnessed by two persons.  The person may also express his desire to be cremated in his will.  If a person leaves written instruction expressing his desires for burial or cremation, and he has named a personal representative in his will to administer his estate, then the nominated personal representative may carry out the deceased person’s written instructions prior to his appointment by the court.

If a person leaves no written instruction regarding the disposition of his remains, the following people shall determine that disposition:

1. The deceased’s surviving spouse;
2. The deceased’s adult children;
3. The deceased’s parents;
4. The deceased’s siblings;
5. An adult who has exhibited special care and concern for the decedent, who is aware of the decedent’s views and desires regarding disposition of his body, and who is willing and able to make decisions regarding the body’s disposition;
6. The deceased’s relatives by nearest degree of kinship;
7. The public official who has responsibility for disposing the deceased person’s remains.

Utah

The right and duty to control the disposition of a deceased person in Utah, including the location, manner, conditions of the disposition, and funeral arrangements is given to:

1. The person designated in a signed writing that is either notarized or witnessed by two other people;
2. The deceased’s surviving spouse, unless the deceased named another person as personal representative of the deceased’s estate during the marriage;
3. The person named to serve as personal representative of the deceased’s estate in a validly-executed will;
4. The deceased’s children;
5. The deceased’s parents;
6. The deceased’s siblings;
7. The deceased’s relatives, beginning with the closest degree of kinship;
8. The person who was the deceased’s guardian at the time of death;
9. Any public official charged with arranging the disposition of deceased persons;
10. Any person willing to assume the responsibilities to act and arrange the final disposition of the deceased’s remains.

Wyoming

In Wyoming, a person may leave written instructions regarding his entombment, burial, or cremation.  He may also designate a person with authority to direct disposition of the person’s remains.

If a deceased person did not leave instructions regarding disposition of his remains, then the following persons may direct the disposition:

1. The deceased’s spouse;
2. The deceased’s children;
3. The deceased’s parents;
4. The deceased’s siblings;
5. The deceased’s grandparents;
6. The deceased’s stepchildren;
7. The deceased’s guardian at the time of death;
8. Any person who identifies himself as a relative or friend of the decedent;
9. The county coroner where the mortuary is located.