Burial regulations: guidance

3. The Applications and Register Regulations

3.1 Regulation 1: Citation, commencement and interpretation

Regulation 1 states the date on which the regulations come into force. From 1 March 2025 all applications for burial must be carried out in accordance with the requirements of these regulations and the requirements regarding record keeping and the burial register in the regulations must also be complied with.

Application forms received by a burial authority on or after 1 March 2025 should be one of the new burial application forms which are set out in the schedules to The Applications and Register Regulations. If a burial authority chooses to create the burial forms in a different digital format (i.e. different to the PDF supplied by the Scottish Government), this is acceptable as long as the information contained within the forms is unchanged.

Burial application forms can be sent electronically and signatures can either be a signature in ink or an electronic signature. An electronic signature is a signature in digital ink or an image of a signature, but must be in the signatories’ handwriting. The signature cannot be typed.

3.2 Regulation 2: Records

Burial authorities will be required to retain burial application forms and accompanying documentation and certificates for 50 years from the date of burial. The forms should be treated as confidential by the burial authority. They must be stored in an accessible format, in a secure manner, taking measures to minimise the risk of loss or destruction, for example, by keeping paper copies in a locked, fireproof cabinet or ensuring electronic versions are backed up on a secure server.

3.3 Regulation 3: Application for burial

The right to apply for a burial (Regulation 3(2))

Where the burial is for the remains of an adult

Where the deceased was an adult and made a will or other testamentary writing nominating someone to arrange their funeral, the 2016 Act provides that that nominated person can make the arrangements for the burial or cremation of the deceased. The Regulations therefore provide that that person may submit a burial application form (a person specified in a “death declaration”).

If there is no nominated person or the nominated person is unable to or does not wish to make the arrangements for any reason, the nearest relative may make arrangements under the 2016 Act. The Regulations provide that the nearest relative may submit a burial application. The nearest relative is the person specified according to the hierarchy set out in section 65 of the 2016 Act as the person who may make arrangements on the death of a person in the absence of a death declaration:

(a) the adult's spouse or civil partner,

(b) neither married to nor in a civil partnership with the adult but was living with the adult as if they were married to each other and had been so living for a period of at least 6 months (or if the adult was in hospital immediately before death had been so living for such period when the adult was admitted to hospital),

(c) the adult's child,

(d) the adult's parent,

(e) the adult's brother or sister,

(f) the adult's grandparent,

(g) the adult's grandchild,

(h) the adult's uncle or aunt,

(i) the adult's cousin,

(j) the adult's niece or nephew,

(k) a friend of long standing of the adult.

A relationship of the half-blood is treated the same as a relationship of the whole blood.

If the adult’s spouse or civil partner was permanently separated (either by agreement or under an order of a court) from the adult, or had deserted, or had been deserted by, the adult and the desertion continues, then “spouse or civil partner” is omitted from the hierarchy.

A person may also be entitled to make arrangements on the death of a person if they are specified in a court order to that effect (granted by the sheriff court under section 68 of the Act). The Regulations provide that such a person may also submit a burial application form.

Regulation 3(2)(a) of The Applications and Register Regulations provides for instances where an adult dies in a care home 3(2)(a)(iii) or hospital 3(2)(a)(iv). Where a person dies and it appears that no arrangements are being made, the local authority has a duty under section 87 of the 2016 Act to arrange the burial or cremation, but can ask a member of staff or manager authorised by the care home (8(4)) or hospital (8(5)) to make the application on its behalf.

If the remains to be buried are the ashes of the deceased adult, the same applies. Where the deceased nominated a person in an arrangements of death declaration or in the deceased’s will, the nominated person may complete the application to bury the ashes. If the deceased did not nominate someone, the hierarchy is that set out in section 65, or the court may appoint a person to make arrangements (section 68) and that person may make the burial application.

An application for burial is not required for the scattering of ashes.

Where the burial is for the remains of a child

The nearest relative of the child is entitled to make the arrangements on the death of the child. The Regulations provide that the nearest relative may then apply for the burial. The nearest relative is the person entitled to make arrangements on death for burial or cremation under the hierarchy set out in section 66 of the 2016 Act.

(a) the child's parent or a person who had parental rights and parental responsibilities in relation to the child (but who is not a local authority),

(b) the child's brother or sister,

(c) the child's grandparent,

(d) the child's uncle or aunt,

(e) the child's cousin,

(f) the child's niece or nephew,

(g) a friend of long standing of the child.

A relationship of the half-blood is treated as a relationship of the whole blood.

As with the case for deceased adults a person may apply to the court for an order authorising them to make arrangements (section 68). The Regulations provide that that person may make the burial application.

Where the burial is for the remains of a stillborn baby

Where the burial is for a stillborn baby, the woman who experienced the stillbirth, or a person with authority to make the arrangements under sections 69-76 of the 2016 Act (e.g. the nearest relative of the stillborn baby or the appropriate health body), can complete the burial application form.

Where the burial is for the remains of a pregnancy loss

Where the burial is for a pregnancy loss, the woman who experienced the loss, or a person with authority to make the arrangements under sections 77- 84 of the 2016 Act (e.g. an individual specified by the woman or the appropriate health body), can complete the burial application form.

Age of applicant

An application for burial can usually only be completed by someone who is 16 years old or older. However, if the applicant is the parent of a deceased child or has had a stillbirth or pregnancy loss, they can make the application even if they are younger than 16.

Why the applicant should complete the application form

It is for the applicant to declare on the application form that they are entitled to make the application and they must sign the declaration on the form confirming this. Should there be a dispute amongst relatives, the burial authority or funeral director is not required to arbitrate on who should complete the form.

In signing the form, the applicant is acknowledging they agree to the legal declaration. An applicant is potentially liable on summary conviction to a fine up to Level 3 on the standard scale if any information on the application form is knowingly false. The applicant should have the opportunity to review the questions and answers and they should be made aware that they are signing a legal declaration.

In no circumstances should a funeral director complete the form in advance of meeting with the applicant, or on behalf of the applicant, then merely get the applicant to sign the form. The applicant is required to sign the form and to confirm that the information contained in the form is complete and correct to the best of their knowledge.

It is understood that there will be times where an applicant will be unable to complete the form themselves. In such circumstances, the funeral director, or another individual, can act as a scribe for the applicant if that is required and complete the answers to the questions on the form under the instruction of the applicant. This should only be done in the presence of the applicant and the funeral director should go through each question with the applicant before writing down the applicant’s answer. The applicant must sign the form and confirm that the information is complete and correct to the best of their knowledge.

The application forms (Regulation 3(3) and Schedules 1 -7)

The Regulations set out the application forms to be used for the different circumstances and the type of the remains to be buried. Each application form has its own set of guidance notes attached which can assist applicants to complete the form.

If the remains to be buried are ashes, the form to be used will depend on whether the ashes are of an adult, child, stillborn baby or pregnancy loss. For example, if the ashes are of an adult, then Form BF1 should be used.

The application forms are statutory forms. The content of the forms, the wording on the forms and the questions should not be altered, deleted or added to (unless an amendment is provided for in this guidance). Burial authorities can add their stamp/ logo and the burial number to the front of the forms. If a burial authority chooses to create the burial forms in a different digital format (i.e. different to the PDF supplied by the Scottish Government), this is acceptable as long as the information contained within the forms is the same.

Any additional questions/ information required to carry out a burial service should not be added to the statutory application form but should be included in a separate supplementary form. Each burial authority can use their own supplementary form and include on it any information that is relevant to individual burial authorities.

The front page of each burial application form asks for the date and time of the service and it is acceptable for this information to be completed by the funeral director when arranging the funeral.

An application form should be completed by the applicant and not by a third party. If the applicant is not physically capable of completing the form they can authorise someone to complete it on their behalf and act as their scribe, but the form should be completed in their presence and must be signed by them. The individual should take their own advice on the completion of the form as they must make the declaration as to the information being complete and correct.

If there is any reason why a burial cannot go ahead at a burial ground and has to be moved to another burial ground, a new application form should be completed.

Changing instructions

Where an applicant wishes to change their original instructions before the burial takes place (either via the funeral director or directly to the burial authority) the change of instruction must be signed by the applicant. The change can be notified to the burial authority on a “change of instructions” form or by email from the applicant’s email (or forwarded on from the funeral director’s email). Whatever method is used it must include a handwritten, jpeg or digital ink signature against the alterations. It is crucial that an applicant’s change of instruction is passed to the burial authority as quickly as possible. It is not necessary to complete a new application form as long as the burial authority is satisfied there is a clear audit trail of the instructions and any subsequent changes and the applicant has signed against all alterations.

Where the applicant instructs a change of burial ground or it is necessary to change to a different burial ground to accommodate the burial, it is recommended that a new application form should be completed.

Making corrections to an application form

If a significant correction is required to the application form, such as if the details of the deceased/ applicant are materially incorrect, it is recommended that a new application form should be submitted.

There will be occasions where minor corrections are necessary and some flexibility should be allowed to ensure a burial is not delayed unnecessarily. A minor correction can be made on a form and initialled by the funeral director but it must be signed by the applicant.

Examples of a minor corrections are where date of birth and age don’t match (wrongly calculated) or where the name has a slight spelling error e.g. Mac and Mc. It is acceptable that details of minor corrections are emailed to or given to the burial authority in writing (in advance of the burial). Whatever method is used the correction, reason for it and authorisation from the applicant must be recorded to ensure there is an audit trail.

Burial authority staff should not be asked to make corrections on the statutory application form. Instead they should be provided with a correction to the instruction in writing (email) either from the applicant or via the funeral director. The burial authority should then attach the correction instruction to the application form and file together. The applicant should sign against any alterations to the information.

Sending information to a burial authority after the application form has been submitted

Every effort should be made to complete the application form in full before sending it to the burial authority. In circumstances where information has to be forwarded on after the application has been submitted, the funeral director must alert the burial authority that the information will follow. Examples of this would be where the weight of the coffin and deceased needs to be confirmed.

Funeral directors and burial authorities should satisfy themselves that they have kept a clear audit trail which shows that any instructions and changes to instructions originated with and have been authorised by the applicant and signed by them.

Does the weight of coffin/ external measurements question have to be answered?

Funeral directors, cremation authorities and burial authorities have a statutory duty under section 2 of the Health and Safety at Work etc. Act 1974 to protect the health, safety and welfare of their employees and others who may be affected by their business.

Other relevant legislation includes but is not restricted to:

• Management of Health and Safety Regulations 1992
• Manual Handling Operations Regulations 1992
• Occupiers’ Liability (Scotland) Act 1960
• Provision and use of work equipment regulations 1998

Knowing the combined weight of a coffin and deceased ensures that any necessary adjustments, including number of staff needed, can be made in advance of the burial, reducing the possibility for distress for families on the day of a burial service.

Providing information about weight is a new addition to the forms used for burial under these Regulations but a similar requirement for cremation has been in place since 2019. It is recommended that funeral directors operating in Scotland should take steps as soon as possible, if they have not already done so, to enable them to obtain access to suitable weighing equipment to complete the question on weight as accurately as possible.

Coffin manufacturers can provide the weight of the coffin and it may be possible to source the weight of the deceased from the care home, family or mortuary. Every effort should be made to provide the weight but if a funeral director has no way of knowing the combined weight they should give an estimated figure on the form.

Providing the shape and external measurements of the coffin, ashes urn or casket assists the burial authority with lair preparation.

Electronic vs original paper version

As long as the electronic version/scanned copy of the application form is a completed form and the signatures are in the correct format the original form (if completed or signed by hand) should not be sent to the burial authority. Electronic transfer of documents became much more commonly used in 2020 during the pandemic and all are reminded that this is an acceptable way of working. It is hoped that burial authorities will continue to accept papers electronically and not revert to requiring paper versions.

The Certificate of Registration of Death (Form 14)

A Certificate of Registration of Death (Form 14) (or equivalent, if the person died outwith Scotland) should be submitted alongside the burial application form. A burial cannot take place without it where the death occurred in Scotland. Where the death occurred in England, Wales or Northern Ireland there may be cases where the death has not been registered but the body has been released for burial or cremation by the coroner. In such cases the coroner’s certificate authorising burial (and removal of the body to Scotland) must be submitted.

A Form 14 is normally issued in paper format by a registrar when the death is registered. Where the Medical Certificate of Cause of Death (Form 11) is selected for review by the Death Certification Review Service (DCRS), if requested by the informant, registrars may be willing to email a scanned version of the Form 14 to the funeral director to help avoid any delays to the burial. The signed, paper form can then be given by the registrar to the informant to give to the funeral director, or posted direct to the funeral director. In this situation, it is imperative that the funeral director who has been sent the Form 14, confirms to the registrar that they have received it.

National Records of Scotland (NRS), the Association of Registrars of Scotland (ARoS), the Scottish Government and the Inspector of Burial, Cremation and Funeral Directors have agreed that it is acceptable for the Form 14 to be sent to both burial and cremation authorities electronically. This can be done via email from the funeral director or the applicant (if the services of a funeral director are not being used).

The informant will contact the registrar’s office to register the death and the registrar will issue the Form 14 (paper original) to the informant. The informant then gives the Form 14 along with the burial application form to the funeral director who is arranging the burial to send to the burial authority. The funeral director can scan the paper Form 14 and email the scanned version with the burial application form and any other accompanying documents to the burial authority. It is important that the burial authority send an acknowledgement of receipt of Form 14 to the funeral director, providing the funeral director and the burial authority with an audit trail.

Once the acknowledgement is received from the burial authority there is no need for the funeral director to keep the original paper Form 14 and the funeral director should then destroy it. The scanned version becomes the “version of record” and is kept by the burial authority along with the application form and they are retained for 50 years in accordance with the requirements of Regulation 3 of the 2019 Regulations.

The burial authority can make further enquiries about the information contained in the form before agreeing to accept the application.

Hazards

The burial application forms include a section asking about hazards and notifiable, infectious diseases. Funeral directors and burial authorities should be aware that in Scotland medical information continues to be confidential after death and there is a legal restriction on releasing details.^[2]

While it is understandable that those who are involved in handling the body will wish to know if there is a risk of infection, there is no entitlement to know details of the actual infection, only that a risk of infection may be present. Section 91 of the Public Health (Scotland) Act 2008 provides that, where a person has died of an infectious disease, the health board must tell the person disposing of the body “the nature of the risk” and “any precautions the board considers should be taken” as well as any other matter which the board considers appropriate. This does not mean that the person disposing of the body is entitled to know specifically what the risk is, such as HIV or Covid-19 for example. In some cases, the public health hazard may not even be known until sometime after the funeral. In cases where the health board considers that there is a significant risk to public health and it is necessary, to avoid or minimise the risk, for the body to be retained in hospital until the board is satisfied there are arrangements for the body’s disposal, the board may issue a written direction as to when and by whom the body may be removed for the purpose of immediate disposal. Where a direction is given, the board must explain to the person responsible for removal and disposal of the body that there is a significant risk to public health, the nature of that risk, any precautions which the board considers should be taken and any other matter which the board considers appropriate. Any person who, without reasonable excuse, breaches the direction given by the board commits an offence.

Those working in the funeral industry should assess the risk in each case, taking account of any information provided by the family or carers, etc. If the hazards box is ticked on the Medical Certificate of Cause of Death (MCCD), the Form 14 and/or the burial application form, funeral directors should be taking protective measures (such as wearing PPE).

Advice about ticking the hazard box DH1 in the MCCD/Form 11, for notifiable diseases was published in the CMO/COPFS/NRS/Police Scotland letter.

3.4 Regulation 4: Burial Register

The 2016 Act requires each burial authority to hold burial registers for each burial ground for which it is the burial authority. The Applications and Register Regulations set out the information that must be contained in the registers.

Schedule 8, part 1 lists the information to be recorded where the burial is of an adult or child. Part 2 prescribes the information to be recorded relating to the burial of body parts and part 3 where burial is relating to a stillbirth or pregnancy loss.

The Act requires that the burial registers must be kept indefinitely.

The Act also requires that the burial authority must make the registers available to the public and may charge for providing extracts from it. The exception being in the case of burial of a stillborn baby or a pregnancy loss, where the information held on this register will be anonymised and will, therefore, not be identifiable.

The information for each burial must be entered on the appropriate register as soon as practicable after the burial (regulation 4(2)) and the burial authority must ensure that the information in the registers is accurate and up to date (regulation 4(3)(b)).

Register of burial of stillbirth and pregnancy loss

Burial authorities may wish to consider keeping the register of burial of stillbirth and pregnancy loss separate to the register of burial of adults and children, as happens for cremation registers. Doing so helps ensure that privacy and anonymity is easier for burial authorities to manage while giving reassurance to families that their information will be held securely.

The information to be entered onto the register for stillbirth and pregnancy loss by the burial authority varies depending on who the applicant is. If the applicant is a health provider/ hospital, the unique identification number given by the health provider/ hospital and the address of the health provider/ hospital, should be recorded.

If the applicant is an individual, such as a woman who experienced a pregnancy loss, a unique identification number will not have been allocated by the health provider/ hospital, so the applicant will not be able to provide this on the application form. The register will not record the applicant’s name or address. This preserves their anonymity on a public register.

The name of the baby is optional, if a name has been given.