Consumer Alert

In keeping with our longstanding position to help protect Michigan consumers, we have included this Consumer Alert page to provide important, timely information.  Check back often as we will update this page as necessary.

July 10, 2014

This consumer-awareness article is intended to help consumers make educated choices when it comes time to plan and pay for funeral services in advance.

PROTECTING YOUR PRENEED MONEY

By Rodney C. Wakeman

When considering planning and paying for your funeral in advance, it is vital that you are armed with facts and information so when you do make an appointment with the funeral director you will understand the process and know where your prepaid funds will be held. This is truly a situation of the more you know the better.

The information here will give you tools to better understand the preplanning process.


Basic Steps in the Preplanning Process

The full preplanning process is typically accomplished in three steps:

1) Providing initial information to the funeral home that will be necessary to complete certain required preplanning and at-need forms, obituary draft and more;

2) Selection of the services and merchandise corresponding to the arrangements requested; and

3) Prepayment of the services selected and execution of the prepaid contract documents.

Consumers Most Likely to Preplan and Prepay for a Funeral

Many consumers will seek the assistance of a funeral director to help them through the details associated with the preplanning and prepayment of a funeral.  A preplanned funeral is typically arranged directly by the person or persons who the prearrangements are for, such as a husband and wife.  However, anyone can set up a preplanned and prepaid funeral for someone else.  People who are most likely to arrange for a service are those who understand its benefits or the need to prepare ahead of time, such as:

 Alleviate survivors from having to select the services at the time of need;

 A desire or need to preplan their funeral as a continuation of an overall estate plan;

 To lock in the price: Pay for tomorrow’s services at today’s prices; or

 Part of a sequence of events associated with establishing Medicaid assistance for a patient in a long term care facility, including the requirement to spend down certain cash assets or using current insurance assets to fund a prepaid funeral.

Prepare before You Prepay

It is vital for the consumer to perform due diligence and prepare for the transaction that will occur.  The following steps will greatly help your decision-making by asking key questions and insist upon certain elements for the preplanned funeral, ultimately helping to protect yourself and your money.

Prior to discussing any element of a preplanned funeral, the first step is to insure you are speaking to an individual and a business entity that possesses all of the proper credentials.  Verify that all professional licenses and registrations are valid.

Every funeral home must display their licenses and registrations in a conspicuous place within the facility.  Insist that you view their VALID licenses and registrations.  The following is a list of licenses and registrations you should have access to so you may verify their professional standing with the State of Michigan.

• Establishment License

A funeral establishment is defined by Michigan Law (Section 339.1801(a) of the Occupational Code) as "a place of business used in the care and preparation for burial or transportation of a dead human body or a place where a person represents that the person is engaged in the profession of undertaking or the practice of mortuary science." 

Any facility that holds itself out as a funeral home or mortuary by conducting business as described above MUST hold a VALID Establishment License.  This license will contain the name of the manager of the facility and must be on display in the funeral home in a conspicuous place.  The manager is a licensed funeral director and must be employed full-time and reside within one hour’s drive from the facility.  The Establishment License is valid as long as the Expiration Date has not passed.  If the license has expired the business is in violation of Michigan law and legally cannot provide any services until such license has been renewed.  DO NOT conduct business with a funeral home whose Establishment License has lapsed.  Also, in the event the funeral home has changed managers, a new Establishment License must be obtained from the State of Michigan.

Do NOT conduct business with any entity that holds itself out as a funeral home or appears to conduct funerals from a facility that is not licensed by the State of Michigan.

• Individual Mortuary Science License

The activities of a funeral director is defined by Michigan Law (Section 339.1801(d) of the Occupational Code) as any person "engaging in or representing oneself as engaging in the supervising of the burial and disposal of a dead human body; maintaining a funeral establishment for the preparation, disposition, and care of a dead human body; or using, in connection with the user's name or funeral establishment, the word "funeral director", "funeral service professional", "undertaker", or "mortician", or any other title embodying the words "mortuary science" or otherwise implying that one is engaged as a funeral director." 

Any individual who holds himself or herself out as a funeral director by providing mortuary services in the state of Michigan, as outlined above, MUST hold a VALID Michigan license and be employed by a duly licensed Michigan funeral home in order to provide mortuary services.  The Mortuary Science License must be on display in the funeral home in a conspicuous place.  Specific actions and activities that require a Mortuary Science License include embalming, signing paper death certificates and burial-transit permits or validating electronic death certificates and burial-transit permits, and leading funeral services at the funeral home, church or other place where the body is present.  Additional actions and activities a licensed funeral director should take part in under a "best practices" policy include, delivery of the remains to the cemetery and directly oversee the burial; delivery of the remains to the mausoleum and directly oversee the entombment; and delivery of the remains to the crematory and directly oversee the placement of the remains into the retort.  While the funeral director may delegate these additional actions and activities to an unlicensed member of his staff, it is our professional opinion these should be directly performed by a licensee.

A person who does not possess a Mortuary Science License may own a funeral home.  However, they MUST employ a full-time Mortuary Science Licensee who is named as Manager on the firm’s Establishment License, letterheads, business cards, and in advertisements.  An unlicensed owner MUST NOT embalm, sign death certificates or burial-transit permits, lead a funeral without the presence of a licensed funeral director, or identify themselves in person, on letterhead, business card, or in any advertisement as "funeral director", "funeral service professional", "undertaker", or "mortician", or any other title embodying the words "mortuary science" or otherwise implying that one is engaged as a funeral director.

• Prepaid Funeral Seller/Provider Registration

Not all prepaid funeral sellers in Michigan are licensed funeral directors or funeral homes.  Any entity that offers to sell prepaid funeral contracts or provide the services of a prepaid funeral contract MUST hold a VALID Prepaid Funeral and Cemetery Sales Seller/Provider Registration.  Prior to any prepaid discussions, insist that the Prepaid Funeral Seller show you their registration.  The registration must be on display in the facility in a conspicuous place.  You have a right to view the document.  Make certain that their registration has not lapsed by reading the Expiration Date on the document.  If they cannot produce a VALID registration upon your request, DO NOT engage in a prepaid funeral with them!

While Michigan law does not require a prepaid funeral seller to be a licensed funeral director or funeral home, the prepaid funeral provider must be a licensed funeral home, as only a funeral director can perform these services.

You may conveniently verify licenses and registrations for any funeral home, individual mortuary science licensee (funeral director), or prepaid funeral seller/provider registrant in Michigan by logging on to the State of Michigan Department of Licensing and Regulatory Affairs website at https://www.lara.michigan.gov/colaLicVerify/ and search by Name, License Number, or License Type or Location.  Then select from one of the following funeral-related options:

"Funeral Homes" to verify licenses of funeral homes;

"Mortuary Science" to verify licenses of individual mortuary science licensees (funeral directors); or

"Prepaid Funeral Providers" to verify registrations for prepaid funeral sellers/providers.

Consumer Protections

The Michigan Prepaid Funeral and Cemetery Sales Act is regarded as containing some of the strongest prepaid funeral laws in the country and includes many consumer protections.  However, there are certain facts you need to be aware of when discussions lead to the actual prepayment of the services and merchandise selected.  Some of its most key elements include:

• It’s Your Money – The consumer remains owner of all funds used for the prepayment of a funeral (except when applying for Medicaid assistance, which is commonly necessary when a person is placed into a nursing home).

• One-Hundred Percent Trusting – All of the funds used for the prepayment must be deposited.

• Third Party Trustee – It is required that all of the prepaid money is to be deposited with and held by a third party trustee.  Every funeral home or other prepaid seller MUST use a qualified third party trustee to hold the prepaid funds.  Ask the prepaid seller you wish to do business with who they use as their trustee.  Prepaid funeral funds can be deposited with an association or group of 250 or more members that has formed a Master Trust or with the trust department of a federal bank.

In the event the prepaid money is paid directly to the funeral home or other prepaid seller, the law requires that the funeral home or other prepaid seller transfer the funds to a third party trustee within 30 days.  The third party trustee must send a letter of confirmation to the prepaid contract owner (the consumer) immediately upon their receipt of the funds as proof of the deposit.  Please review the “Who to Pay” section below for further details and recommendations on this matter.

• Right to Cancel, Right to a Refund – Since the prepaid contract is a revocable contract, the consumer has the right to cancel the contract and receive a refund of a minimum of 90% of principal and interest.  The contract seller may hold back up to 10% as a cancellation fee.  These details will be included on the prepaid contract.  You should ask the prepaid seller about their cancellation policy.*

*The only time the consumer waives their right to a cancellation of the contract and to a refund is if the individual is approved for Medicaid benefits.  In this situation, the original Revocable Guaranteed Price Contract must be converted and certified as an Irrevocable Guaranteed Price Contract, per Medicaid rules.  Furthermore, once a prepaid funeral agreement has been certified Irrevocable, Medicaid rules do not allow a refund at the time of need, such as if a decrease in the level of service or quality of merchandise is requested by the family.  A contract certified Irrevocable by Medicaid does not allow a refund of any kind.

Preneed Contract Types

When it comes time to actually prepay for the services you have requested, it is imperative that you understand the process and know exactly how your prepaid funds will be held.  The person who the prepaid funeral is set up for is known as the contract owner.

The funeral home may offer you any one of the following contract types:

  Guaranteed Price Contract – This form of contract locks in today’s price for each item listed on the contract.  The consumer will not be required to pay any additional funds on any item included on the contract.  If additional services or merchandise are later requested by you, only these additions will be required to be paid.  A guaranteed contract is required when applying to the state for Medicaid assistance, such as in association with long-term care expenses.

 Non-Guaranteed Price Contract – This form of contract does not lock in today’s price for any item included on the contract.

Funding Options

Once a choice has been made between a guaranteed or non-guaranteed price contract, the funeral director must place the prepaid funds with a third party and he may offer you any one of the funding options listed below (the manner and location in which the preneed money will be held).  Please note: not all funeral homes may offer all of the options listed here for philosophical or other business reasons.

 Trust – A trust account is typically used for a single, lump-sum (paid-in-full) payment.  Inquire to the funeral director about the range of trust options available.  Since money in prepaid trusts are still owned by the consumer, accumulated interest is treated as income for tax purposes.  One kind of trust that may be offered is a Trust-Pays-Tax option.  A Trust-Pays-Tax fund offers automatic payment of the Income Tax to the government from proceeds in the fund, alleviating the consumer from submitting the tax payment themselves.

 Insurance Policy – Often referred to as “funeral insurance,” this preneed funding option provides a variety of ways for the funeral to be funded, including lump-sum (paid-in-full) or through a range of pay-over-time options.  Payment plans will usually require the applicant to answer health questions.  Some funeral insurance products have a two-year contestable period for those who want a payment option but would not otherwise qualify for traditional insurance due to poor health history.

 Insurance Trust – Typically used in conjunction with making application for Medicaid funds while protecting an existing insurance policy from cancellation.  Usually, under a situation of applying for Medicaid, any policy owned by the applicant that has cash value may be subject to cancellation per Medicaid rules.  The insurance trust option can protect the policy from cancellation by placing the whole policy in a trust and using the proceeds from the policy to pay for the arrangements at the time of need.  In this situation, other than a small administrative fee to set up the trust, no money is actually exchanged at the time of prearrangement.

Who to Pay

Perhaps the single, most important step you can take to help ensure the safety and security of your prepaid funds falls within the concept of who to pay.  When it comes time to actually pay for the prepaid services and merchandise selected, insist on issuing the payment directly to the third-party trustee and NOT in the name of the funeral home or other prepaid seller.  Also, NEVER issue payment to any individual person.  Following these steps will greatly reduce, if not remove altogether, any chance a funeral home or other prepaid seller mishandling or misappropriating your prepaid money prior to depositing the funds with the third-party trustee.

When the Preneed becomes At-Need

At no time will the funeral home be able to access the prepaid money deposited with the third party trustee or insurance company until death occurs.  Even here, the funeral home must provide the trustee or insurance company documents as proof of death.

The Preplanning Conference

Now with all of the facts before you, and only after you are satisfied with their answers to each of the elements described above, you should feel confident in moving forward with the preplanned arrangement.

The general process to complete a preplanned funeral is a very similar process to plan for an at-need funeral—except by prepaying, the funds will not be kept by the funeral home or other prepaid seller.

You will be asked a series of questions that are necessary to complete a variety of documents, including the eventual death certificate, social security and veteran forms, obituary, and the prepaid funeral service contract and supporting documents.  The funeral director is also required to provide you a General Price List.  This document is mandated by the Federal Trade Commission “Funeral Rule” and provides you with a description of services available at the funeral home along with the prices for each service.  It is intended for you to retain this document.  If the services you request include the need for a casket, vault or other merchandise, you will also be provided pricing information for these products.

After all of the selections have been made by you, the funeral home must furnish you with a detailed estimate of charges complete with a total price for all selections.  It is your decision at this point to prepay for the services selected or leave the information on file with the funeral home to pay at a later date or at the time of need (when death occurs).  If it is your decision to pay later, you will be subject to the prices at the later date.

Additional Information

For additional information on preneed, we invite you to visit the Plan Ahead section of our website, or the Michigan Attorney General website on Prepaid Funeral Contracts.

If at any time you find that a funeral home or other prepaid funeral seller is operating without a proper license or have information on improper preneed practices, please visit the Michigan Department of Licensing and Regulatory Affairs website or call the Enforcement Division at (517) 241-9280 to file a complaint.


November 17, 2011

NO on House Bill 5148

A proposal to repeal Section 1812 of the Michigan Occupational Code; Tie-barred to HB 5080.

I recently provided information regarding HB 5080, a proposal supported by the Michigan Cemetery Association, allowing prepaid funeral providers to immediately take 50% of the money Michigan consumers pay in advance for funeral arrangements off the top, and requiring the remaining funds to be placed into an irrevocable funeral agreement, which forces the consumer to immediately give up all rights and ownership to their money with no possible refund upon a request for cancellation.

As if that wasn’t enough, on Thursday, November 3, 2011, Rep. Matt Lori introduced HB 5148, which is tie-barred to HB 5080, calling to repeal Section 1812 of the Michigan Occupational Code.

Currently, Section 1812 provides significant consumer protections by requiring a separation of ownership and management of funeral homes and cemeteries.  This separation protects Michigan consumers from various anti-trust matters, including “steering” customers from one entity of the organization to the other, and encountering “tie-ins”, arrangements that deny consumers a full range of provider choices of products and services, and monopolization, especially in markets where limited choices already exist.   These anti-competitive activities would stifle competition–not seek to expand competition.  Consumers benefit from competition in the marketplace, which is availed to them with the current law.

Currently, the funeral director is in a position where he can act as an advocate for the family.  If activities or actions—or the lack of same—from a cemetery calls into question whether a proper and respectful burial of the deceased will take place, as directed by the family, the funeral director can—and has—assisted the family by communicating directly with the cemetery in advance of the burial.  These communications, for example, have ward off conflicts over the burial site and verification of prepaid cemetery services or other details, any of which can cause a substantial delay of a burial.  If a “one-stop shop” atmosphere is thrust upon consumers, who will be there to advocate for the consumer in a moment of fallout?  Handing over all of the services and burial obligations to a single entity within an industry, or at the very least one of a closed joint business agreement, as would occur if this proposal is passed, can place consumers in a situation where they can no longer commonly verify details with an outside party.

A business transaction with a funeral home is completely different from any other transaction consumers will ever encounter in their lives.  Their vulnerability is at its highest level.  The funeral director must maintain the family’s trust at all times.  If he fails, the consumer will surely seek help from another funeral home next time.  However, this is not true with cemeteries.  In the event of an act of mistrust with the cemetery, the family can not easily seek out another cemetery.  This would require moving their deceased loved ones from their resting place to another cemetery, which is both impractical and costly.

As an example of mistrust, we do not have to look any further than to recall the unconscionable actions of Clayton Smart, a former owner of 28 Michigan cemeteries, who, soon after purchasing the properties in 2004, reportedly stole some $70 million dollars from the very trust funds he was charged to protect, resulting in the largest cemetery trust fund heist in U.S. history.  Many Michigan consumers and legislators alike remember the scandal.  In fact, when news broke of the heist, our funeral home received several phone calls from local families who made burial plans in these cemeteries to seek answers to their obvious concerns.   The fact these calls came to us and not to the cemeteries in question demonstrate the role funeral homes have in the overall planning of these arrangements.

Even though Mr. Smart sits in prison today, only a small fraction of the $70 million has been returned to the trusts.  The aftermath of his actions continues to cause many consumers to worry if they will ever receive the burial services for which they prepaid.  Mr. Smart clearly obliterated the sense of trust of every one of his clients who pre-purchased services and merchandise in each of the 28 Michigan cemeteries he owned before the State of Michigan placed the cemeteries in receivership.  However, few, if any, families will move their loved ones out of any of these cemeteries.

Through the support of the Michigan Cemetery Association, there have been several attempts to repeal Section 1812 of the Michigan Occupational Code to past Legislatures, and each time Legislatures have understood the ramifications of the proposed repeal.  I write again to state emphatically that just as HB 5080 is bad legislation for the consumer, so, too, is HB 5148.

I urge the House of Representatives to vote NO on HB 5080 and 5148 (tie-barred).  Michigan consumers have a right to remain in control of their money, the ability to cancel at a later date, maintain the benefits of competition in the marketplace, while directly benefiting from a level of protection through a critical system of checks-and-balances.

Rodney C. Wakeman
Wakeman Funeral Home, Inc.
Michigan State Board of Examiners in Mortuary Science member


October 21, 2011 

NO on House Bill 5080

A proposal to amend the Michigan Prepaid Funeral and Cemetery Sales Act by reducing the required trusting level; requiring irrevocable contracts.

HB 5080, a proposal to reduce prepaid funeral trusting levels and require all prepaid contracts to be irrevocable, was introduced on Wednesday, October 20, 2011, by Rep. Matt Lori, and referred to the Regulatory Reform Committee.  (Italicized words represent a change from current law.)

As a licensed funeral director, prepaid funeral seller/provider, and business owner, I vehemently oppose this proposed legislation on the grounds that it would eviscerate core consumer protections, including control of the consumer's own money by allowing the preneed seller to confiscate 50 percent of the prepaid funds, resulting in the consumer sacrificing ownership of all prepaid funds and the ability to cancel the contract.

This proposed legislation, supported by the Michigan Cemetery Association, would roll back current law that was adopted in 2005.

First, some history.

Many Michigan consumers and legislators alike remember the Clayton Smart scandal, a former multi-cemetery owner in Michigan, who, soon after he purchased the properties in 2004, reportedly stole some 70 million dollars from the very trust funds he was charged to protect, resulting in the largest cemetery trust fund heist in U.S. history.  While Mr. Smart sits in prison today, the aftermath of his actions caused many consumers to worry about the money they prepaid into those trust funds, as today only a fraction of the money has been returned.

For over twenty years, Michigan funeral directors were telling the State of Michigan of the catastrophic nature of cemeteries prepaid funeral practices.  It wasn’t until the Clayton Smart scandal hit the news that Michigan consumers saw how vulnerable their prepaid money was in cemetery trust funds and the discrepancy between cemetery prepaid contracts and funeral home prepaid contracts.  The issue became a top priority in the Michigan Legislature and fixes to the preneed law were made.

Prior to 2005, these discrepancies included cemeteries just 130 percent of the wholesale of goods sold on a prepaid basis into escrow, while funeral homes were–and still are–trusting at a minimum level of 90 percent.  This issue alone put the consumer in an unfair situation and a disadvantage when seeking to prepay.  At our funeral home, we learned from many of our clients who had planned for burials in these cemeteries that in nearly every instance they weren’t aware of the different trusting levels–even for an otherwise identical selection.  That is until we encountered families who wanted to change their preneed merchandise selection from those they purchased through the cemetery to merchandise we had made available to our preneed clients.  In each of these cases we had to inform the consumer they were literally stuck with the choices they made at the cemetery, as the cemetery did not provide any refunds.

The current law stipulates that all prepaid funeral funds remain the property of the consumer and provides level trusting between all entities who sell preneed, whether a funeral home, cemetery, or a preneed merchandise sales office on the corner–a minimum of 90 percent of principal must be held in escrow.  This level of trusting, among other things, provides the consumer with the ability to request a refund upon cancellation.

Contained within HB 5080 is language to repeal the important element that all prepaid funds are revocable, replacing it with language requiring ALL preneed contracts be irrevocable.  Currently, irrevocable contracts are used only when application is being made for Medicaid funds in connection with long-term care needs.  The irrevocable designation is in exchange of receiving Medicaid funds, whereas, the prepaid funeral funds held in trust can no longer be cancelled or withdrawn by the family and spent for other purposes.  This is the only time a funeral contract should be non-cancelable.  To make this an across-the-board requirement for all contracts is irresponsible, unjustifiable and is nothing short of self-serving, all for the benefit of the cemetery's high-pressured preneed sales force.  This, along with their disturbing 50 percent trusting for services and 130 percent of wholesale on goods, provides the mechanism to eliminate the consumer’s fundamental right to cancel the contract at a later date, ultimately resorting in the inability to receive a refund.  To lay claim to a full 50 percent of money on services and roughly another 50 percent on goods prior to any performance of the contract is appalling at best.

Also, from a business standpoint, leaving preneed contracts half-funded is backwards thinking.  In the event a cemetery wishes to sell to another party, the preneed accounts, in effect, become a huge unfunded liability, leaving a tremendous debt for a proposed buyer.  Which calls the question, who would want to buy a business when only half of the money to make good on future services has been trusted?  It is a bad business model and since this proposal includes “all preneed sellers”, I wish to not have our preneed accounts subjected to this kind of liability.

With the Clayton Smart cemetery scandal still not fully adjudicated, yet continuing to sting Michigan consumers, it would be unconscionable to change the Michigan preneed law to now place restrictions on Michigan consumers by removing all control over their money.

Despite the cemeteries' agreeing to the elements of the current law when it went into effect in 2005, HB 5080 clearly demonstrates they no longer wish to participate in a consumer-protection environment.  The fact remains, a business should not be manipulating laws that include a transfer money and power away from the consumer to the business.  It is a most unethical business philosophy that can be described.

I urge House Representatives to vote NO on HB 5080 and allow Michigan consumers to maintain control of their own money.

Rodney C. Wakeman
Wakeman Funeral Home, Inc.
Michigan State Board of Examiners in Mortuary Science member


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