my father just passed and wished to be cremated. eldest child had PoA and signed everything from banking to estate planning to the "do not resuscitate" decision. however, after commiting to a specific funeral home, he was informed that this did not cover cremation itself, and that in MA the lesser offspirng must also sign some release. one refuses to steadfastly.
father planned everything well but for no written mention of cremation wishes. we all assumed PoA covered that.
there is NO chance the one refusing to sign will contest anything, ever. she will, however, fight vigorously to be "left out" of proceedings. in fact, she was the one who initially pushed our father to set up PoA, for the sole purpose of avoiding this situation.
what is to be done here?
Elder Law Attorney
A power of attorney grants the person named powers mirroring those of the person executing the document, and for that reason it ceases to be effective on the issuer's death. A statement of burial wishes can either be contained in a will, or in a separate document designating a custodian for the body.
Massachusetts substantially rewrote it's probate law after the last time I practiced there, so I could be wrong, but I don't believe state law requires all siblings to agree in writing on burial decisions; but it's not an uncommon policy of funeral homes worried that disagreeing family members will sue them. You should talk to a local estates and probate attorney to confirm your options, but your best bet is to find a different place that doesn't require the waiver, or which just isn't aware of the abstaining sibling.
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Estate Planning Attorney
A power of attorney is valid during the Principal's life and on his last breath also expires. There is an exception, in California at least, for an Advance Directive which has a section allowing the ONE post-death authority of making burial or cremation arrangements. I don't practice in your state to know without research, whether this is also the case in your state or even if you have an advance directive because you don't mention it.
What does the one steadfastly refusing want? Burial over cremation? Or just to fight? If she wants to be left out of it, signing this makes it go away in that you are all in agreement and the cremation can happen. If MA requires all siblings to sign an agreement, you may never agree.
Contact your local bar association for referral to an attorney who specializes in this. Often, but not always, the attorney will do an initial consultation free of charge. You will then be in a better position to determine what to do next. Best of luck to you!
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Elder Law Attorney
Sigh..... this is the sort of thing which leads to hearings at the Probate Court while the body lies in the morgue. A power of attorney has nothing to do with it.
A quick bit of research shows that there is nothing which explicitly states that there must be universal family agreement concerning cremation. However, there have been successful lawsuits where autopsies were conducted without the consent of the family, leading to the hospital being held liable for emotional distress. My sense is that by refusing to go forward, the funeral home is trying to avoid being sued by someone who doesn't want the cremation in the absence of a clear instruction from the deceased or a court order.
However, it would have made it a LOT simpler if your father had signed a statement declaring his intent to be cremated -- either by taking care of his own funeral planning while he was alive, in his will or in a separate notarized document.
E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.
Real Estate Attorney
A person's power of attorney terminates upon his or her death, as does his health care power of attorney. You will have to work outside the framework of a power of attorney and health care proxy.
Your father's attorney should have included his wishes for burial or cremation and properly advised you. My advice now would be to retain an attorney to make sure that the estate is probated correctly.
Estate Planning Attorney
I am agreement with Alexandra Golden's big sigh. I would attempt to have a family meeting in this matter and see if it can be resolved amicably. Does anyone else in the family know that Dad wanted to be cremated? And if so, perhaps they can persuade the power of attorney who now has no authority to go along for peace in the family.
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