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Living Wills, Advance Directives and Powers of Attorney cover creating an
agent to act on my behalf if I am incapacitated, but as I understand it,
that agency expires on my death.
A Last Will and Testament covers my desired disposition of my worldly
possessions; it's my understanding that the will isn't consulted immediately
(i.e. before the funeral). I expect something like an organ donor card
would cover that limited procedure immediately following my death.
But how do I ensure my wishes regarding the disposition of my body are
carried out? Do my next of kin immediately assume legal authority over
matters concerning a funeral, etc.? Suppose, for example, I am at odds with
my next of kin about a funeral service -- let's assume I want to be cremated
with no religious service; my next of kin have a religious objection to
cremation and want to include my corpse in a religious memorial service
regardless of my expressed wishes.
I can always make my own arrangements regarding my funeral and disposition
of my body, but are my next of kin legally obliged to follow them, or can
they just write off, say, a pre-paid cremation and hold the ceremonies they
wish? If there is a legal obligation, who has legal standing to intervene
on my behalf? Is there a process for designating someone of my choice to
have the authority to make decisions, or carry out my stated wishes, in the
interim between the expiration of my Advance Directive, Medical/Durable
Powers of Attorney, and the submission of my Will for probate?
--
Robert
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A Last Will and Testament covers my desired disposition of my worldly
possessions; it's my understanding that the will isn't consulted
immediately
(i.e. before the funeral). I expect something like an organ donor card
would cover that limited procedure immediately following my death.
But how do I ensure my wishes regarding the disposition of my body are
carried out?
I've helped several folks prepare wills. While it isn't legally necessary, I
suggest two attachments to a will: funeral instructions, and a list of
people to contact.
I also suggest that copies of those attachments be made and given to at
least two trusted friends, precisely because the will is almost never
consulted until after the funeral. It's also why I suggest that the original
will *not* be put in a safety deposit box, because those boxes are often
sealed once the bank becomes aware of the death.
While the documents I described above have no legal authority, they *do*
provide written evidence of the decedent's wishes. While nobody has done it
yet, I suppose it might be possible to have a will structure so that, if the
funeral wishes are not followed, the person responsible could be
disinherited.
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Robert E. Lewis wrote:
But how do I ensure my wishes regarding the disposition of my body are
carried out? Do my next of kin immediately assume legal authority over
matters concerning a funeral, etc.?
US law follows Anglo-Saxon tradition, under which next of kin alone
decide what happens to your body (ie donating organs, funeral
arrangements) and your wishes in this regard are not binding on your
next of kin.
I think it is outrageous that some middle age Anglo-Saxon burial custom
is controlling matters in 21st century USA. Please write to your
Congressman to complain and ask that you alone should have the right to
decide what happens to your body after you die. After all, if we were
bound by middle age tradition in the matter of wills, there would be no
binding wills either and your next of kin would inherit everything
automatically.
Romans invented the property Trust to bypass the legal limitation on
deciding who inherits your property : you just give your property to a
trusted friend before you die, who then passes it on to the person you
want to inherit. These trust arrangements became so common place that
legally binding wills were introduced to legalize the status quo.
Unfortunately there is no easy way to bypass the control of next of kin
over your body, though you could try specifying in your will that if any
next of kin objected to your wishes on how your body is disposed, he/she
inherits only $1. Unfortunately, you will have no way of knowing who you
have thereby disinherited until you are dead.
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On Thu, 24 Feb 2005 12:14:30 -0500, "Robert E. Lewis"
<rlewis@brazosport.cc.tx.us> wrote:
. . . .
But how do I ensure my wishes regarding the disposition of my body are
carried out? . . .
Depends on the state. In Oregon, the decedent is permitted the first
right to direct disposition, either through a funeral contract or a
written and signed instruction. ORS 97.130(1).
Daniel Reitman
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