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After death - autopsies, burial, cremation

 

I have to organise the affairs of someone who has just died. What do I do first?

The Department of Human Services has information on its website on some of the first steps you will need to take. It also includes information about financial assistance that may be available.

If you have lost your partner, the Australian Securities and Investments Commission (ASIC) MoneySmart website has information on arranging a funeral, working out the will, determining where you stand financially and taking the next steps.

The Coroner's Court WA also has information and a brochure on what to do when someone dies suddenly.

If you are Indigenous, the ASIC publication Paying for funerals has a section on options for paying for a funeral that may be useful to you.

Who is responsible for deciding between burial and cremation?

If a person has left written instructions (including those contained in a will) that their body is not to be cremated then permission will not be given for cremation.

If there are no written instructions from the deceased, cremation is not permitted if it is opposed by the deceased's spouse, de facto partner or next of kin.

Otherwise the executor, or personal representative if there is no will, has the right to dispose of the body as the executor or personal representative wishes. It is likely they will carry out the wishes of the deceased, if it is practical to do so.

If the deceased is not buried where they were cremated, who do the ashes go to?

If the deceased is not buried where they were cremated, the ashes are given to the person who applied for the permit to allow cremation.

What if there is a dispute about where the deceased should be buried?

If the deceased person has made a will and named an executor, the executor has the right to arrange for burial of the deceased's body. If the deceased has died without a will (for more information see Dying without a will), the usual approach is that the person entitled to a grant of administration is usually the person responsible for the burial of the body. This means the person who has the authority to deal with the deceased's estate or property.

If there is a dispute about burial you should try negotiation or mediation to resolve it. You may need to get a court order stopping the burial until the dispute has been resolved. If the dispute can't be resolved and you do not agree with where the body is to be buried you may have to take action in the Supreme Court. The court will then decide what should happen about burial. Get legal advice before taking action in the Supreme Court.

What is there is not enough money in the deceased person's estate to pay for a funeral?

Sometimes the deceased person may not have left enough money to cover the cost of a funeral and the family cannot afford to pay. In such cases, sometimes you can get financial help with the cost of a funeral and other death related expenses from the Department for Child Protection and Family Support's Bereavement Assistance Program.

What is the role of the Coroner?

The Coroners Act 1996 (WA) ("the Act") covers inquests and post mortems (also called autopsies) in this State.

The State Coroner has responsibility for investigating all reportable deaths and, where appropriate, arranging autopsies, examinations and inquests.

What is a reportable death?

In Western Australia, a reportable death includes a death:

  • that was unexpected, unnatural or violent or resulted directly or indirectly from injury
  • that occurs in during an anaesthetic 
  • that occurs as a result of an anaesthetic procedure and is not due to natural causes
  • of a person whose identity is not known
  • of a person who immediately before death was a person held in care
  • that appears to have been caused or contributed to while the person was held in care
  • that appears to have been caused or contributed to by a member of the police force
  • that occurred in Western Australia and where a medical practitioner has not certified the cause, and
  • that occurred outside Western Australia where the cause of death is not certified by a person who under the law in that place is a legally qualified medical practitioner.

A person held in care includes a person under, or escaping from, the control, care or custody of police, prison, detention, or the CEO of Department for Child Protection and Family Support. Other situations involving care are also covered, eg an involuntary patient.

What is an autopsy?

An autopsy is a step-by-step external and internal examination of a body by a doctor for the purpose of investigating the death. It is sometimes called a "post mortem".

For more information on autopsies including on who can object to an autopsy see the Coroner's Court website.

Who can request an autopsy?

Anyone can write to the Coroner asking for an autopsy to be performed.

What if the request for an autopsy is refused?

If the Coroner refuses your request you can apply to the Supreme Court for an order that an autopsy be performed. You only have two clear working days from receiving the Coroner's letter of refusal to appeal to the Supreme Court unless an extension of time has been granted by the Supreme Court.

What is an inquest?

An inquest is a coronial inquiry, a formal court hearing by the Coroner into a reportable death.

An investigation into a reportable death may or may not include an inquest.

At an inquest into a death the Coroner is trying to determine the identity of the deceased, how the death occurred, the actual cause of death, and the particulars needed to register the death.

When is an inquest held?

An inquest must be held if the death appears to be a Western Australian death and:

  • if the deceased was immediately before death in police custody, a prison, detention centre, a detained youth, or detained in an approved mental hospital, etc
  • if it appears that the death was caused or contributed to by any action of a member of the police force 
  • if it appears that the death was caused or contributed to, while in police custody, a prison, detention centre, a detained youth, or detained in an approved mental hospital, etc
  • the Attorney General or Coroner directs, or
  • the death occurred in other circumstances listed in the regulations.

An inquest may be held if the Coroner believes that it is desirable.

Who can ask for an inquest?

Any person may ask the Coroner to conduct an inquest into a death.

The request must be in writing and contain the reasons for the request. An inquest may be held if the Coroner has jurisdiction to investigate and they agree to the person's request.

If the Coroner refuses a person's request for an inquest, the Coroner must give reasons in writing within a reasonable period after receiving the request. The person requesting the inquest may apply to the Supreme Court:

  • within seven days after receiving the notice of refusal, or
  • three months after the request was made if no reply has been received.

The Supreme Court will make its decision based on whether it is necessary or desirable in the interests of justice that an inquest be held.

Who has rights in the coronial process?

The Act gives rights to several categories of people. The categories are not defined except for the senior next of kin.

The senior next of kin is essentially the closest relation to the deceased at the time of death and means in order of priority:

  • a person who immediately before the death was living with the deceased as a spouse
  • a person aged 18 years or over who immediately before the death was living as the de facto partner of the deceased (whether the persons are different sexes or the same sex)
  • a person who immediately before the death was the spouse of the deceased
  • a son or daughter of the deceased who is 18 years or over
  • a parent of the deceased
  • a brother or sister of the deceased aged 18 years or over
  • an executor named in the will or a person who was a personal representative of the deceased immediately before the death
  • if none of the above is available, a person nominated by the deceased as a person to be contacted in an emergency.

Interested persons have rights of appearance at an inquest. The Coroner may list interested persons but there may be others.

What are the powers of next of kin concerning autopsies?

The senior next of kin has the following powers:

  • a right to request that an autopsy examination be performed
  • a right to object to an autopsy examination and can obtain information on how to make an objection
  • a right to request an independent doctor to be present at the autopsy
  • if tissue is to be removed from the deceased's body because of their written permission, the right to view that written permission
  • unless prohibited under the deceased's written instructions, to give written informed consent in the prescribed form, specifying the tissue which may be removed and the purpose (therapeutic, medical, teaching or scientific) for which the tissue may be removed by the doctor or pathologist undertaking the autopsy.

If a finding has not been made within 21 days after an investigation of a death involving an autopsy examination, the Coroner must provide written information on that examination to any of the next of kin unless it is not practicable to do so.

Who is the senior next of kin?

The senior next of kin is essentially the closest relation to the deceased at the time of death. The order of priority of these relatives is given in the Act.

If there are no relations, it can be an executor named in the will or a person who was a personal representative of the deceased immediately before the death. If none of these people is available, it can be a person nominated by the deceased as a person to be contacted in an emergency.

Can I see the body?

The next of kin can view the body if the Coroner is investigating. Arrangements will be made for the deceased person to be taken to a mortuary where they may be viewed by the next of kin.

Where can I get more information?

  • Go to the Department for Child Protection and Family Support website for details of what help is available from the Bereavement Assistance Program or call on 1800 854 925 (free call).
  • Go to the Coroner's Court of WA or call on (08) 9425 2900 or 1800 671 994 for information on the coronial counselling service, the role of the Coroner and autopsies.
  • Contact DonateLife WA on (08) 9222 0222 for information on organ donation.
  • Go to the Department of Aboriginal Affairs WA website or call 1300 651 077 for information on the policy for burials on Aboriginal Trusts Land.
  • Go to the ASIC MoneySmart website for information on practical steps you can take if you have lost your partner.

Last reviewed: 04/01/2013

Last Modified: 22/05/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.