Decision maker for burials and cremations

Under the Burial and Cremation Act 2022, before proceeding with a burial or cremation, it's important that you check with the decision maker for the deceased person that they agree.

The role of a decision maker

A decision maker is a person with legal responsibility for decisions under the Burial and Cremation Act 2022.

They can be any of the following:

• executor
  • a person named in the deceased person's will to carry out their wishes
• administrator
  • a person appointed by the court to manage the deceased person's estate
• senior next of kin
• Public Trustee.

Where there is a will in place

If the deceased person has a will, often executors are listed. All names listed as the executor become a decision maker.

When executors disagree about the deceased person’s remains, they can:

• arrange mediation, or
• apply to the Northern Territory Civil and Administrative Tribunal (NTCAT) for a decision.

When there is no will

The Public Trustee can tell you if there is a will.

If the Public Trustee says there is no will and an administrator has not been appointed, the decision maker may be a senior next of kin.

When an administrator of the estate has been appointed, they are the senior next of kin.

Identifying the senior next of kin

This information should not be taken as legal advice. You should seek your own independent legal advice.

The senior next of kin must:

• not have previously been certified mentally unfit by 2 medical practitioners
• be contactable within a reasonable period to undertake the necessary requirements of the decision maker’s role.

The senior next of kin is one of the following people in descending order.

Person according to Aboriginal customs and traditions

If the deceased person is an Aboriginal or Torres Strait Islander person with strong cultural and traditional ties to a community or group, the senior next of kin is a person who, according to the customs and traditions of the community or group to which the person belongs, is most appropriate to perform that role.

Spouse or de facto partner of the deceased

Choose the situation that best fits the relationship status of the deceased person immediately before their death.

• Both married and in a de facto relationship, the senior next of kin may be the spouse.
• In a continuous de facto relationship for at least 2 years immediately before death, and didn’t during those 2 years live with the deceased person’s spouse – the senior next of kin is the de facto partner.
• The parent of the deceased person’s youngest child is the person’s de facto partner, and the deceased person didn’t live with their spouse immediately before death – the senior next of kin is the de facto partner.

In any other situation senior next of kin is the deceased person’s spouse.

Child of the deceased

If there is no spouse or de facto partner, then the senior next of kin may be their eldest child who is over the age of 18 and can be contacted.

If the eldest child can't be contacted then it could be the next eldest child over 18 years old.

Parent of deceased person

If none of the above apply, then the deceased person’s parent is the senior next of kin.

In a relationship with deceased

A person who immediately before the death of the deceased person, had a relationship with the deceased person may then be the senior next of kin.

If there is no senior next of kin

If a senior next of kin can’t be identified, the decision maker may default to the Public Trustee.

If no senior next of kin can be identified, contact the Public Trustee.

Disputes

You may have to get legal advice if there is any dispute over who is the decision maker.

You can also:

• mediate to resolve the dispute
• make an application with the NTCAT, or
• take to the Supreme Court for a decision.

Further information

You can call 08 8995 5107 or email burials@nt.gov.au.