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Funerals

When a person dies there are a number of issues, from organ donation to arranging a funeral, that may arise apart from those concerning the administration of the estate.

Organ Donation

As organ and tissue donation occur a short time after the pronouncement of death, it is essential that the intentions of the deceased are known to the next of kin. The Transplantation and Anatomy Act 1983 (SA) [s 5] provides that decisions concerning organ and tissue donation, can be made by, in order of priority, the person's:

  • spouse or domestic partner
  • son or daughter who has attained the age of 18
  • parent
  • brother or sister, who has attained the age of 18.

Consent is sought from the senior available next of kin for organ and tissue donation, therefore specific conditions in a will should be made known to that person.

People considering donating organs or tissues should:

  • discuss their wishes with their family
  • carry a driver's licence or donor card indicating that they wish to donate their organs in the event of their death.

Currently in South Australia, organs and tissue can be accepted for transplantation or grafting only if death occurs under special circumstances in hospital.

The legal meaning of death under the Death (Definition) Act 1983 (SA) applies to organ and tissue donation. The irreversible cessation of all functions of the brain is commonly called brain death [s 2a]. These patients are maintained in an Intensive Care Unit and depend on a respirator (life support). They are able to donate vascular organs such as kidneys, liver, heart, lungs and pancreas due to the supply of oxygenated blood to the organs. Brain dead patients are also able to donate tissues such as corneas (eyes), bone and skin, which do not deteriorate without a blood supply.

Tissue donation can occur when there is cessation of the circulation of blood [s 2b] and occurs in the operating theatre after the organ donation, or in the mortuary. The disposal of the body is the responsibility of the executor or administrator of the estate. Organ and tissue donation does not delay any funeral arrangements.

Donation of a body

In South Australia, human bodies may be willed for use by students of the medical schools of Adelaide and Flinders Universities.

To bequeath one's body involves providing full details and completing the appropriate forms which may be obtained by writing to the Professor of Anatomy at each of the universities. Under the Transplantation and Anatomy Act 1983 (SA) a notice may be published in the press stating that a deceased person has bequeathed her or his body to the University if the deceased person had formally consented to such publication during her or his lifetime.

The University of Adelaide takes all responsibility for the burial of bodies accepted under this arrangement and such burial is arranged in consecrated ground at the Hindmarsh Cemetery. There are no direct costs incurred by the deceased, unless transportation from outside the metropolitan area is involved, or if relatives wish to have a private burial or cremation after the remains leave the University.

If a religious ceremony is to be held, it is usual for relatives to arrange for this prior to the remains passing to the University.

Care when dying

With the advances in medical technology people are now living much longer than previously. Sometimes this may involve prolonging a person's life when that person's decision-making capacity is impaired.

This means another person or authority may need make a decision about the person's medical treatment on their behalf, see: When someone 16 or over can't consent.

People may wish to have some say in what treatment they receive in these situations. A competent adult can make an advance care directive, appointing a subsitute decision-maker and outlining their wishes in advance of such situations. See: Advance Care Directives. Previously the Natural Death Act 1983 (SA) and the Guardianship and Administration Act 1993 (SA) enabled a person to complete a form similar to an advance care directive. See Advance care directives before July 2014.

Section 17(2) of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) says that a medical practitioner responsible for the care of a patient in the terminal phase of a terminal illness is under no duty to use or continue to use life sustaining measures if the effect would be merely to prolong life in a persistent vegetative state or moribund state without any real prospect of recovery [s 17(2)(a)]. This is the case even if the patient or the patient's representative requests their use or continuation. However, if the patient or their representative requests that life sustaining measures be withdrawn, the medical practitioner must withdraw them [s 17(2)(b)].

Dying in Hospital

Most people die in a hospital or nursing home. A medical certificate of cause of death is issued and the body is kept at the institution's morgue until next of kin (see next of kin) or the executor or administrator of the estate make arrangements for a funeral or contact a funeral director. Where no one arranges or pays for a funeral and the deceased had no money or other assets, the hospital must accept responsibility for arranging (and paying) for the burial through the Government contractor appointed by the Department of Human Services (SA), see financial assistance.

Euthanasia

Euthanasia is commonly referred to as 'mercy killing' and came to prominence in the South Australian case of R v. Johnstone (1987) 45 SASR 482; 137 LSJS 290. Active euthanasia is the term used when death is quickly and deliberately caused - for example, when an overdose of drugs is deliberately taken or administered. Passive euthanasia is the term used when death is caused by withholding or withdrawing treatment that merely sustains life; for example, removing life support systems from someone in a coma, see Care when dying. With passive euthanasia, death is technically from 'natural causes'.

The law relating to euthanasia in South Australia comes under the Criminal Law Consolidation Act 1935 (SA) [s 11]. Under this Act, death through active euthanasia is murder. As death by passive euthanasia is from 'natural causes', a doctor who withholds medical support with or without the consent of the patient or their representative (see Care when dying) is not said to have caused death. The Act does not relieve a medical practitioner from the consequences of a negligent decision as to whether or not the patient is suffering from a terminal illness.

Coroner's Inquests

Under the Coroners Act 2003 (SA) an inquest can be held to establish the cause, or circumstances, of a reportable death.

Reportable death is defined in section 3 of the Coroners Act 2003 (SA). It includes the death of a person:

  • while the person is in custody; or
  • by an unexpected, unnatural, unusual, violent or unknown cause; or
  • on an aircraft during a flight, or on a vessel during a voyage; or
  • that occurs during or as a result, or within 24 hours, of certain medical procedures (some procedures are excluded by the Coroners Regulations 2005 (SA) reg 4); or
  • that occurs at a place other than a hospital but within 24 hours of the person having been discharged from a hospital after being an inpatient of the hospital or the person having sought emergency treatment at a hospital; or
  • of a patient in an approved treatment centre under the Mental Health Act 2009 (SA)

The definition of reportable death also covers other deaths such as some deaths in residential care facilities, deaths of residents in licensed supported residential facilities, deaths in treatment facilities for people being treated for drug addiction, deaths of people who fall under guardianship and other types of protection legislation and where there is no certificate as to the cause of death [see further, Coroners Act 2003 (SA) s 3].

Immediately after a person becomes aware of a reportable death they must notify police or to the State Coroner of the death, unless the person believes on reasonable grounds that the death has already been reported. Failure to do this is an offence, maximum penalty $10 000 or imprisonment for 2 years [s 28(1)].

The State Coroner decides whether an inquest will be held into a reportable death, the disappearance of a person, or into a fire or accident that caused injury to person or property [see Coroners Act 2003 (SA) s 21]. However, the Attorney-General may also direct the Coroner to hold an inquest into a particular case. The Coroners Act 2003 (SA) requires that an inquiry must be held where there is a death in custody, which is defined in section 3(1) of the Coroners Act 2003 (SA).

An inquest is an informal hearing, however the Coroner’s Court has many powers, including the ability to summon people before the Court and require people to swear that they will truthfully answer questions [see s 23(1)(c)]. Any person the Coroner considers has a sufficient interest may appear in an inquest. The facts are established by calling witnesses who are examined and cross-examined and documentary evidence may be tendered.

The Coroner is not bound by the normal rules of evidence and may inquire into any issues as she or he thinks fit. The Coroner must act according to equity, good conscience and the substantial merits of the case, but without regard to technicalities and legal forms [see s 24]. However, the normal rules of natural justice and procedural fairness still apply.

If a person has been charged with a criminal offence of causing the event that is to be inquired into the Coroner may not proceed until the criminal proceedings have been disposed of [s 21(2)].

As soon as practicable after the completion of the inquest the Coroner must give its findings in writing [s 25(1)], this may include recommendations that may prevent or reduce the likelihood of the recurrence of a similar event [s 25(2)]. However, the Coroner must not make any finding or suggestion of criminal or civil liability [s 25(3)].

The Coroner may reopen an inquest at any time or the Attorney-General may direct that an inquest be reopened. On the application of either the Attorney-General or a person who has a sufficient interest in the finding, the Supreme Court may order that the Coroner's finding be set aside, be reopened, that a new inquest be held, or substitute other findings which appear justified on the evidence. Any application must be made within one month after publication of the finding although the Supreme Court has a discretion to allow a longer time [see generally, ss 26 - 27].

Suicide

Under the Criminal Law Consolidation Act 1935 (SA) [s 13A(1)] it is not an offence to commit or attempt to commit suicide in South Australia. However, it is a serious offence to assist in a suicide or a suicide attempt [s 13A(5)]. A person is able to use reasonable force from stopping what she or he believes is an attempt at suicide [s 13A(2)].

Where suicide (for example, through hanging or electrocution) is the cause of death, a doctor or hospital must notify the police. The deceased must be formally identified and the police must complete a Report of Death to Coroner. If the Coroner considers that a post-mortem is necessary, another form is filled out and sent to the Government Medical Officer, authorising a post-mortem. The post-mortem is carried out in the hospital morgue and a report is sent to the coroner in charge of the district. The Coroner then issues a Form of Coroner's or Justice's Information on Death which is sent to the Registrar of Births, Deaths and Marriages. The Registrar is then able to issue a death certificate when the next-of-kin applies for it.

While there may in the past have been problems arranging a religious service and burial of someone who has committed suicide, this is no longer the case. The cause of death should have no bearing on funeral arrangements.

Stillborn Babies

A stillborn baby is one of twenty weeks or more gestation or, if it cannot be reliably established whether the period of gestation is more or less than twenty weeks, with a body mass of at least 400 grams at birth, that exhibits no sign of respiration or heartbeat, or other sign of life, after birth [Births, Deaths and Marriages Registration Act 1996 (SA) s 4].

A baby of less than twenty weeks that shows no sign of life after birth cannot be registered and no birth or death certificate will be issued.

A baby that is stillborn is registered and a birth certificate is issued, but the Registrar of Births, Deaths and Marriages does not issue death certificates for stillborn babies.

If a baby breathed, even for a moment, and died soon after, the fact of birth and death is registered.

The product of a procedure for the termination of pregnancy [Births, Deaths and Marriages Registration Act 1996 (SA) s 4] is not considered a stillborn child.

After the birth of a stillborn child:

  • the birth must be registered in the normal way (the birth certificate will state that it was a stillbirth)
  • stillborn babies do not require investigation by the coroner
  • if the doctor requests an autopsy, the consent form must be signed by the parents. Parents can choose not to have an autopsy performed
  • the parent(s) or next of kin should make funeral arrangements.

Next of Kin

There is no formal legal recognition or legal rights of 'next of kin'. Certain Acts have given a restricted definition such as the Transplantation and Anatomy Act 1983 (SA) [s 5], which gives a priority as to who makes decisions concerning the donation of organs and tissue, see organ donation. Section 9 of the Burial and Cremation Act 2013 (SA) allows a parent or child of a deceased person to object to cremation, except where the deceased directed he or she be cremated by will or other signed and witnessed document (but a spouse or partner, unless they are also the personal representative - executor of the estate - of the deceased person cannot object).

'Next of kin' are not legally required to provide personal particulars of the deceased relative, but it is helpful if they provide as much detailed information as the funeral director requires. A funeral director can leave the personal particulars with the Registrar of Births, Deaths and Marriages for the purposes of registering the death [Births, Deaths and Marriages Registration Act 1996 (SA) s 38(1)].

Where the deceased has left a will which appoints an executor, it is the executor's responsibility to dispose of the body according to directions in the will, see duties of executors.

Obtaining a Death Certificate

Once a medical certificate of the cause of death has been issued, either the doctor or the funeral director sends the certificate to the Registrar of Births, Deaths and Marriages who will then issue a death certificate to the next of kin, upon application. If requesting a death certificate by mail, along with the set fee, the following information concerning the deceased should be enclosed:

  • name and address
  • date of birth
  • date and place of death
  • names of parents of the deceased (including mother's pre-marital name)
  • marital status, registered relationship status or de facto relationship status if over 16
  • details of marriage(s), registered relationship(s), de facto relationship
  • details of any children.

Regardless of where a person dies, if the doctor cannot - for any reason - issue a Medical Certificate of Cause of Death, the doctor must notify the local police. The police will arrange for removal of the body to the nearest hospital where procedures for a coronial inquiry are carried out.

Arranging a Funeral

Funeral directors

The funeral director will carry out many of the basic requirements for a funeral. She or he will usually look after:

  • collecting documents and meeting legal requirements, including obtaining a cremation permit
  • removal of the body
  • the coffin (or casket) and care of the body
  • purchase of burial plot and arrangements for its opening and closing
  • provision of a hearse (limited mileage) is usually included in the cost
  • graveside service or service at a crematorium.

Beyond this, the funeral director may also arrange a pre-burial service, organise the use of funeral parlour or chapel, arrange for mourners' cars, flowers and newspaper advertisements. Charges will depend on the amount of work undertaken by the funeral director.

Funeral costs

There are no set fees for a funeral. Costs vary depending on the cemetery or crematorium. There are also variations in the cost of caskets and coffins and in the cost of grave plots. Where plots are in a lawn section, the charges will include perpetual care of the plot in addition to the cost of a memorial plaque. Where a double grave is used, costs will be limited to a re-opening fee as the plot itself will have been paid for at the first opening. Different funeral directors offer different facilities - ranging from expensive and elaborate parlours and coffins to simple buildings and inexpensive coffins. It is worth contacting more than one director to find the kind and the cost of services that suit you and your family.

Pre-paid funerals

Where people pre-pay for their funeral the money paid must be held in trust and full details must be given to the person. These documents should be kept in a secure place.

Financial Assistance

Payment for a funeral

The person who contacts the funeral director and orders the funeral is legally responsible for paying the costs of the funeral although the money will usually come from the deceased's estate. If money is a problem it is worth contacting several funeral directors to see if fees are negotiable or if payment may be made by instalment. Some banks and other financial institutions will release funds from an account of the deceased person to pay funeral expenses.

Help with funeral costs

If a person has no next of kin or the next of kin are receiving certain social security payments, the Department of Human Services (SA) may arrange and pay for a cremation. For more information contact the Funerals Assistance Programme.

Centrelink assistance

For information about possible assistance from Centrelink (federal government), see What to do following a death.

Associations or clubs

Some associations or clubs may pay a small funeral benefit for members or people who need assistance.

Trade unions

It is worth enquiring of the union to which the deceased belonged whether or not any benefits are available.

Health insurance schemes

Some schemes cover funeral benefits. Check the policy or contact the health insurance company.

Financial institutions

Banks may lend money to low income earners and pensioners. A home equity loan may be appropriate for those with real estate who need access to cash (see Consumer Credit). A loan should not be accepted without knowing:

  • the precise rate of interest to be paid
  • exactly how much will have to be paid back
  • over what period of time the loan will continue.

Burials and Cremations

Burial and cremation are the only legal ways of disposing of human remains in South Australia [Burial and Cremation Act 2013 (SA) s 7].

Place of burial

It is an offence to bury a human body in a place that is not a currently authorised cemetery or natural burial ground [Burial and Cremation Act 2013 (SA) s 8].

Cremations

It an offence to cremate someone elsewhere than a lawfully established crematorium [Burial and Cremation Act 2013 (SA) s 9(2)].

A cremation may only take place if a cremation permit has been issued in relation to the body by the Registrar of Births, Deaths and Marriages [s 9(1)].

Once a body has been cremated, the ashes may be disposed of or kept as determined by the executor of the estate.

Human remains may not be cremated if the personal representative, parent or child of the deceased person objects to the cremation, unless the deceased person directed, by a will or some other signed and witnessed document, that their body be cremated [Burial and Cremation Act 2013 (SA) s 9(3)].

Overseas burial

It is possible to export a body where the deceased or next of kin have requested that the burial take place overseas. Health authorities must approve a request for export. If, for example, communicable diseases are prevalent in South Australia at the time of death, permission may be refused. This procedure is free of charge, but transportation costs are not.

    Funerals  :  Last Revised: Thu Nov 13th 2014
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.