Commentary on Sections Adults and children Section 65 – Arrangements on death of adult
165.Section 65 applies when arrangements are to be made following the death of an adult who has not made any arrangements about who is to decide what is to happen to his or her remains. The phrase “arrangements on death declaration” refers to any wishes expressed by the deceased while alive regardless of whether they were made in writing or verbally. This section also applies where the adult who has died did make such arrangements but it would not be reasonably practicable to carry out those arrangements. Subsection (2) allows the nearest relative of the adult to make the arrangements, but that person is not obliged to make the arrangements if they do not wish to do so (or are unable to do so).
166.Subsection (3) establishes a hierarchy of people who meet the definition of nearest relative. This is set out in paragraphs (a) to (k) of subsection (3). Subsection (4) makes provision for a situation where the spouse or civil partner of the deceased was permanently separated or deserted from the adult.
167.Any relative that falls within one of the categories set out in this section will rank equally with any other relative in the same category and may be considered to be the nearest relative (subsection (6)). For example two siblings are treated as having equal rank. Stepchildren of the adult who has died will be treated as if they were a natural child of the adult. Any half-blood sibling will have the same rights as a whole-blood sibling (subsection (5)).
168.Subsection (7) provides that someone who is under 16 years of age is regarded as a child and will not be eligible to instruct the disposal of the adult’s remains. Anyone who would otherwise be eligible but does not wish to or is unable to make the arrangements or is unable to make the arrangements for any reason, will not be included. This ensures that no-one will be required to take on responsibility for making such arrangements.
169.Subsection (7)(c) provides that if it is not reasonably practicable to communicate with the relative in the time available they may also be excluded and will not be called upon to make the arrangements, even if the person would have wished to do so. In this case, the responsibility falls to the next person in the hierarchy established at paragraphs (a) to (k) of subsection (3).
170.Subsection (9) provides that this section is subject to section 92 of the Public Health etc. (Scotland) Act 2008, which would take effect if there was any risk to public health from the body. This would mean that the local authority would be able to take steps to minimise the risk to health, including disposing of the body without having to consider the requirements of this section.