The Metropolitan Cemeteries Board (MCB) has sought legal advice both independently and through the Department of Health from the State Solicitor’s Office about the duties and powers of funeral directors in respect of unclaimed ashes.
The advice received was regarding the duties and powers of funeral directors in relation to the collection, storage, disposal or the return of unclaimed ashes to the cemetery.
The legal advice received states that funeral directors cannot act on behalf of the executor or administrator in the collection, storage or disposal of ashes.
This advice is based on the provision under Section 7(1) of the Cremation Act 1929, which provides that where ashes are not buried at the site of the crematorium, the cemetery authority shall deliver the ashes to the cremation permit holder for removal
from the crematorium.
Funeral directors are only authorised to receive ashes after a cremation if the funeral director is the cremation permit holder.
With respect to unclaimed ashes, a funeral director does not have any duties or powers under the statute of common law.
Given the legal advice, the MCB, in consultation with the department, has prepared this statewide communication for funeral directors in the metropolitan area, regional cemetery boards and local governments advising that from 1 December 2020:
- Funeral directors are not to collect ashes on behalf of the executor or administrator (as a representative of the family).
- Ashes returned to a cemetery authority need the authorisation of the executor or administrator.
- The cemetery authority may charge a fee for returned ashes from a funeral director.
- Cemetery authorities can store ashes on behalf of funeral directors (long term storage using a vault or similar that allows retrieval of the ashes, inclusive of records), at the cost of the funeral director.
If you require further information, please contact the department by email.
Duncan Ord OAM