45 St. Clair Ave. West, Suite 600
Toronto, Ontario, M4V 1K9
Tel: (416) 925-7400

What Remains Series #5: What are the Limits on the Authority of an Estate Trustee?

Although an estate trustee is entitled to dispose of the remains of a deceased so long as he/she does so in compliance with the duties set out in law, the authority of an estate trustee can be circumscribed by the law on organ donation, coroner’s enquiries and the authority of an interment rights holder.

Organ Donation

Organ donation in Ontario is governed by the Trillium Gift of Life Network Act[1] (the “TGLNA”).

Section 4 of the TGLNA, provides that a person over the age of sixteen, may direct that his or her body or parts thereof may be used after death for “therapeutic purposes, medical education or scientific research.”  The consent must be in writing and signed by the person, or in the alternative, orally in the presence of at least two witnesses, during the person’s last illness.[2]

In cases where a person has not given consent to donate his or her body or parts, the person’s spouse, or in some cases, children, parents, siblings, next of kin, or “the person lawfully in possession of the body” may give consent to the use of the person’s body or parts thereof for “therapeutic purposes, medical education or scientific research.”[3]  That consent may be given after the person in question dies, or before death if the person is deemed incapable of consenting by reason of injury or disease and the person’s death is imminent.[4]  Consent by an authorized party may be given in writing, orally in the presence of at least two witnesses, or by “telegraphic, recorded telegraphic, or other recorded message…”[5]

Consent that is given in accordance with the TGLNA to donate a body or parts thereof for transplant, research or education is binding and constitutes full lawful authority for determining the use of the body, or removal of the specific body part(s).[6]  The only exception is where there is cause to believe that consent given by the deceased was subsequently withdrawn, or in the case where another person consents to the donation, there is an objection to the donation by a person of the same or closer relationship to the deceased.[7]

Therefore, a person during his or her lifetime, or a spouse or family member after or just before death, may provide binding consent for the use of a person’s body or parts thereof, which consent is to be adhered to by the estate trustee.[8]

Coroners Act

Pursuant to the Coroners Act,[9] where a coroner has the jurisdiction to investigate a death, he or she may take possession of the body to examine the body and conduct an investigation.[10]

Even after interment, the Chief Coroner may order that a body be disinterred for an investigation or inquest:

  1. Despite anything in the Cemeteries Act, the Chief Coroner may, at any time where he or she considers it necessary for the purposes of an investigation or an inquest, direct that a body be disinterred under and subject to such conditions as the Chief Coroner considers proper.

The authority of a coroner or the Chief Coroner pursuant to the Coroners Act supersedes that of an estate trustee in respect of a deceased’s body.

Coroner’s Authority where Death Investigation Ordered

For certain deaths, a coroner will conduct a death investigation. A coroner will be called (by either police, health care workers, etc.) to investigate a death that appears to be from unnatural causes or natural deaths that occur suddenly or unexpectedly. Certain types of deaths must be reported to a coroner. These “reportable deaths” include, but are not limited to:

  • deaths that occur suddenly and unexpectedly;
  • deaths during or following pregnancy;
  • deaths at a construction or mining site;
  • deaths while in police custody or while a person is incarcerated in a correctional facility;
  • deaths when the use of force by a police officer, special constable, auxiliary member of a police force or First Nations Constable is the cause of death; and
  • deaths that appear to be the result of an accident, suicide or homicide.[11]

If a person has died under any of the circumstances listed above, no one “shall interfere with or alter the body or its condition in any way until the coroner so directs by a warrant.”[12] If someone has died in a manner listed above, the coroner will issue a “warrant to take possession of the body” and will complete a death investigation.

Once the death investigation is completed, in most cases the family or estate trustee will make arrangements to have the body transported to the service provider chosen. However, the coroner may choose to have the body transported to a hospital or forensic pathology unit for further examination, such as an autopsy/post mortem examination.  In this situation the coroner will issue a warrant pursuant to section 28 of the Coroners Act for a pathologist to perform a post mortem examination of the body. Upon completion of the post mortem, the body can be released to the funeral home service provider.

Medical Assistance in Dying: Coroner Involvement

Federal Bill C-14 received Royal Assent in 2016 which provided for exemptions to the Criminal Code for Medical Assistance in Dying (MAiD) when administered according to certain established criteria. In Ontario, the Medical Assistance in Dying Statute Law Amendment Act received Royal Assent in 2017. One of the statutes that was amended was the Coroners Act. Section 10.1 now reads:

10.1(1) Where a person dies as a result of medical assistance in dying, the physician or nurse practitioner who provided the medical assistance in dying shall give notice of the death to a coroner and, if the coroner is of the opinion that the death ought to be investigated, the coroner shall investigate the circumstances of the death and if, as a result of the investigation, the coroner is of the opinion that an inquest ought to be held, the coroner shall hold an inquest upon the body.”

10.1(2) The physician or nurse practitioner who provided the medical assistance in dying shall provide the coroner with any information about the facts and circumstances relating to the death that the coroner considers necessary to form an opinion about whether the death ought to be investigated, and any other person who has knowledge of the death shall provide such information on the request of the coroner.

A process is in place for a coroner contacted in a MAiD situation. The physician or nurse practitioner who administers or prescribes the legal medication completes the medical certificate of death and calls the dispatch centre of the Office of the Chief Coroner immediately after death is pronounced. A dedicated nurse investigator calls the physician or nurse practitioner back (within 10-15 minutes) to review details of the case, including medical background of the patient, confirmation that the patient had capacity to consent to MAiD. The nurse investigator also speaks with next of kin if available. If MAiD was requested due to a naturally occurring medical condition and the investigator has no significant concerns the body can then be transported to the funeral home or cremation centre and burial can take place.[13]

However, if MAiD is requested due to a non-natural cause (such as injuries from an accident) the nurse investigator will speak with a coroner to determine if there is a need for an examination or autopsy. The coroner will prepare a death certificate and a report that the family can request.[14]

Interment Rights Holder

While the estate trustee has the obligation to dispose of the deceased’s body, and that right of possession remains and continues after burial, the estate trustee’s authority is limited by the rights of the interment rights holder.

The interment rights holder is defined under the Cemeteries Act as the person who possessed “interment rights,” or in other words, this person is the owner of the lot in which the remains are to be interred.

Remains cannot be interred in a specific lot without the consent of the interment rights holder.  Similarly, remains cannot be disinterred without the consent of the interment rights holder.  Subsection 51(a) of the Cemeteries Act requires the prior consent of the interment rights holder if remains are to be disinterred.

Under the FBCSA, no specific reference to the consent of an interment rights holder is made, but section 162 of the Regulations (General) created under the Act addresses this issue.  This section states:

    1. (1)No person shall disinter human remains except in accordance with the Act and one of the following: this section, section 178 or 179 or a site disposition agreement mentioned in section 184.  O. Reg. 30/11, s. 162 (1).

(2) No person shall remove scattered cremated remains from a scattering ground except in accordance with this section.  O. Reg. 30/11, s. 162 (2).

(3) No person shall disinter any human remains unless,

(a) the prior consent of the interment rights holder has been obtained; and

(b) except if the remains are cremated human remains, prior notification has been given to the medical officer of health.  O. Reg. 30/11, s. 162 (3).

(4) No person shall remove scattered remains without the prior consent of the scattering rights holder.  O. Reg. 30/11, s. 162 (4).

(5) Subsections (3) and (4) do not apply to a disinterment or removal that is,

(a) made pursuant to a direction under section 102.1 of the Act; or

(b) ordered by the registrar under subsection 88 (7) of the Act pursuant to a cemetery closure.  O. Reg. 30/11, s. 162 (5).

In the event that an interment or scattering rights holder cannot be located to provide consent, the Regulation permits the Registrar to consent to the disinterment in question:

(6) The registrar may consent under subsection (3) or (4) in the place of the interment or scattering rights holder if,

(a) the whereabouts of an interment or scattering rights holder are not known;

(b) the interment or scattering rights holder is not readily ascertainable; or

(c) the interment or scattering rights holder is not able to consent.  O. Reg. 30/11, s. 162 (6).

(7) Before consenting under subsection (6), the registrar shall consider whether any known person may have an interest in the disposition of the remains, and if there is such an interested person, shall order that the person proposing to do the disinterment or removal give notice of it to the interested person in the form and manner that the registrar specifies.  O. Reg. 30/11, s. 162 (7).

Disinterment pursuant to section 162 of the Regulation (General) also requires the involvement of and notice to a medical officer of health:

(16) A medical officer of health may attend at, supervise or direct a disinterment or removal.  O. Reg. 30/11, s. 162 (16).

(17) If a medical officer of health determines that remains are those of a person who died of a communicable disease within the meaning of the Health Protection and Promotion Act, the remains shall be dealt with in accordance with that Act.  O. Reg. 30/11, s. 162 (17).

(18) No person shall remove a dead human body from a cemetery unless a certificate of a medical officer of health or the cemetery operator has been obtained and affixed to the container holding the body, confirming that the Act and the regulations have been complied with.  O. Reg. 30/11, s. 162 (18).

Therefore, while the estate trustee has possession of the deceased’s remains, that right of possession is limited by statute, to require the consent of the interment rights holder for interment and disinterment.

Significantly, once the remains are deposited into an interment plot, it appears that absent intervention from a Court, the estate trustee’s authority to deal with the remains terminates.

[1] RSO 1990, c H 20 (“TGLNA”)

[2] Section 4, TGLNA

[3] Section 5, TGLNA

[4] Subsection 5(2), TGLNA

[5] Subsections 5(2)(g),(h) and (i), TGLNA

[6] Subsections 4(3) and 5(4), TGLNA

[7] Subsections 4(3) and 5(4), TGLNA

[8] For more information on this topic see: Louise M. Mimnagh , “The Disposition of Human Remains and Organ Donation: Increasing Testamentary Freedom while Upholding the No Property Rule”, (2017) 7:1 online: UWO J Leg Stud 3 http://ir.lib.uwo.ca/uwojls/vol7/iss1/3

[9] RSO 1990, c C 37  (“Coroners Act”)

[10] Coroners Act, ss 15-16

[11] Coroners Act, RSO 1990 c C37, section 10

[12] Coroners Act RSO 1990 c C37, section 11

[13] See Dr Edward Weiss and Dr. Dirk Huyer, “Legal Issues Around MAiD in Ontario,” Law Society of Ontario Practice Gems: Administration of Estates 2018, September 21, 2018. [Weiss]

[14] Ibid.


Previous Post:
Next Post:
Click here or on top Blog logo to return to Blog front page.

Search Blog by Keyword(s)

Site Search

Site Map