May 1, 2012
Many clients have strong views on funeral arrangements, and want to know “the best way” to see to it their instructions and wishes are carried out. Some people have asked us to include funeral directions in their will. Since wills commonly are not read until after funeral arrangements have all been settled and completed, we believe a will is not the best place for our clients to express their wishes in regard to funerals.
While in a conventional family structure, the spouse, or if none, the children of the deceased will be presumed to have the authority to make funeral arrangements, more and more people today are in less conventional arrangements. The right to make anatomical gifts and funeral arrangements is sometimes called the “Right of Sepulcher” and is of great importance to couples living in less conventional relationships. Often there is no legal relationship between couples although they may have had close and lengthy living arrangements and, without a legally binding grant of the Right of Sepulcher tragic consequences can occur.
We suggest that these matters be the subject of discussion with family members, just as health care and end of life decisions are. Since people’s attitudes and wishes on these subjects change as life goes on, we suggest this is a topic that needs to be reviewed every few years.
In Illinois, there are two ways to legally authorize someone to make funeral arrangements for you. One of these is the Illinois Statutory Short Form Power of Attorney for Health Care. We are familiar with these documents as authorizing a person to make end of life decisions in cases where the person is no longer able to make these decisions or express these decisions on their own behalf. Often our clients refer to this form as the “pull the plug” form. It contains statement regarding the client’s wishes about prevention of suffering and prolongation of life, and authorizes a person to insure that these wishes are carried out.
The actual power of attorney form was adopted as a part of the statute adopted by the Illinois legislature – its exact language is dictated by the act. While it is possible to create a form which does not exactly follow the language of the act, we recommend, and most of our clients decide to use the statutory form.
A provision of the form which is often ignored by our clients deals with funeral arrangements. Since it is short, it is included here in its entirety:
A. My agent shall have the same access to my medical records that I have, including the right to disclose the contents to others. My agent shall also have full power to authorize an autopsy and direct the disposition of my remains. [Emphasis Added]
B. Effective upon my death, my agent has the full power to make an anatomical gift of the following (initial one):
(NOTE: Initial one. In the event none of the options are initialed, then it shall be concluded that you do not wish to grant your agent any such authority.)
- Any organs, tissues, or eyes suitable for transplantation or used for research or education.
- Specific organs: ______________________________________________________________________________
- I do not grant my agent authority to make any anatomical gifts.
C. My agent shall also have full power to authorize an autopsy and direct the disposition of my remains. [Emphasis Added] I intend for this power of attorney to be in substantial compliance with Section 10 of the Disposition of Remains Act. All decisions made by my agent with respect to the disposition of my remains, including cremation, shall be binding. I hereby direct any cemetery organization, business operating a crematory or columbarium or both, funeral director or embalmer, or funeral establishment who receives a copy of this document to act under it.
So this form, perhaps thought of for a different purpose, allows you to designate someone with an absolute right and authority to make funeral arrangements for you.
There is a second form. Perhaps you wish to use your health care power of attorney to empower someone with regard to medical decisions, but give authority over you funeral to someone else. Since you can only have one health care agent, you might then chose the second form, called “Appointment of Agent to Control Disposition of Remains” which is authorized under another Illinois statute, the Disposition of Remains Act. This form is much more focused than the Health Care Power of Attorney, and permits you to appoint an agent just for the purpose of arranging your funeral, including cremation if that is your wish. Like the Health Care Power, it provides an opportunity to name a successor agent if the original one is unable to act.
Should you wish to make or change either of the forms discussed in this article, please contact me or another attorney at DiMonte & Lizak.