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Doesn't power of attorney cover cremation?

Oxford, MA |

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?

thank you!

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Attorney answers 5

Posted

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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Asker

Posted

thank you very much. that's about what my read of the situation was. perhaps i was incorrect in calling it "power of attorney", tho. he also had a "health care proxy" -- including for that "do not resuscitate" issue -- and is signing everything ELSE funeral related. i would think that indicates in and of itself that he was named legal custodian for the body, but i am not 100% sure. frankly, i, too, have been completely uninvolved and happily defering to our eldest as well. (difference being that i am willing to sign as asked, altho i wasn't expecting it either) if we consult a probate attorney, the refusnik in question will not participate. does this render the whole suggestion moot? i prefer the "quietly shop it to a different place" idea, but it seems to be the crematory making the policy, not the funeral parlour. every other parlour we've consulted seems to use the same crematory and hence insists on the same terms. and now that one HAS the body, i'm not quite sure about demanding it back and fumbling around with it. bottom line: if the "abstaining" sister digs her heels in, will the crematory buckle? as a private enterprise, can they hold to this policy even if it is not mandated by law? or will 5 days of dad "hanging around" make them look the other way and wave things along? were it not such a SMALL town, we would have just kept mum about our sister's entire existence! you are so correct on that.

Scott D Rosenberg

Scott D Rosenberg

Posted

There are various advanced directives, but the ones you listed would not cover burial arrangements absent specific language that the person is to be "custodian of my remains/body." Whether it's the funeral parlor or crematory causing the hold-up the advice remains the same, though I see your dilemma. Your only real option is to have the funeral parlor deliver the body elsewhere, or find a funeral parlor that uses a different crematory. Again, provided I'm right about it not being a state law.

Asker

Posted

ok, thanks again! i'll try to flush out better what exactly the arrangements were, directive-wise.

Posted

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!

If you liked this answer, click on the thumbs up! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.

Asker

Posted

thank you for your reply. the one refusing wants anonymity. we didn't even know where she was until recently, and there are always rumblings about suicide. not quite at the "black helicopters" stage, but getting a signature out of her is like asking for a DNA sample. in recent years she's let drivers license, etc., expire for related reasons. she made it quite clear these 2-3 years that she absolutely "would not" participate in anything family/death/probate related. our father (and eldest brother) were fine with that -- i just thought they'd done a better job setting things up in accordance!

Eliz C A Johnson

Eliz C A Johnson

Posted

SHort of seeing an attorney in your area for guidance, I don't know what else to say. The others all seem to say what should have been done. What you DO will be an issue you discuss with an attorney in your state. One would think that eventually the morgue will want to release him. They need that space for the next to come through. I assume you have talked to the funeral home director and explained the intransigence of the sister. They are worried about being sued in the face of a lack of agreement. Best to you.

Posted

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.

Posted

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.

Posted

Hello,
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.
-Susana Lannik

Please note that this analysis is general in nature and is for Massachusetts only. By giving it attorney Lannik or Lannik Law, LLC does not create an attorney-client relationship unless and until contracted for by her office. IRS Circular 230 Notice: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments or enclosures) is not intended or written to be used and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Asker

Posted

alas, but the only one knowing the cremation intent is the eldest. there is no "dispute", however; the other two of us are fully accepting of what he says and with pretty much every decision he's made on the matter. my sister's objections are related only to SIGNING anything and to MEETING people; they are not specific to the case at hand. fwiw, she's told the funeral director that she fully approves of the arrangements, but that she is simply "unable" to sign anything. despite what others here say, the funeral director insists it's state law. the page he sent us home with was MGL c. 113, s8, (3) i believe [sorry, bit unclear on the notation] stating that where there is no written document or pre-need funeral services contract, the funeral establishment/agents must follow the directions of.... "(b) the surviving adult children". it doesn't state "unaminous consent" specifically, but i can see where one might interpret it that way. otoh, this applies to "all funeral arrangements" (not just disposal of body), so doesn't the fact that they're letting him do all OTHER arrangements solo -- including graveside services -- mean that they are already accepting him as lone representative? if lack of signature precludes cremation, wouldn't it also preclude every OTHER arrangement he's made over the past few days? for that matter, wouldn't it also preclude the alternative of burial which the funeral home is now threatening? not sure what a probate atty could do. the one holding things up will definitely not go see him. she has, however, threatened to retain her own to defend herself against getting "dragged into this". and, to be honest, we've been promising for years that she WOULDN'T be....sigh.... :(

Michael L Rich

Michael L Rich

Posted

The point of getting a probate attorney and filing something in court is that then, if your abstaining sister does not respond to the petition, the filer can get a default judgment that says he is the one who has authority to act on behalf of the surviving adult children. If your abstaining sister does hire an attorney, she will likely be advised that signing constitutes less involvement than defending against a petition. The consent signature would be private, while the petition and notice to the named and unknown, unnamed surviving adult children, would be public record and likely even need to be published in the legal notices section of the local newspaper. Go ahead and hire the attorney, hope that it convinces your abstaining sister to do the same and the attorneys should be able to convince her that signing is the better option based on her wishes to not be involved.

Asker

Posted

first sentence is exactly what we want! thank you. but why would she need to "defend" against the position? she WANTS everything to default to us; if she just ignores our petition long enough, everyone's happy, right? i don't think she has a big problem with whatever WE put in the public record (to a point...certainly wasn't happy about being "outed" in the obit); she just doesn't want to be seen as having participated. to be frank, she doesn't want anyone else in the family obtaining WRITING SAMPLES (copy of signature) from her. is there a way she can hire an atty, sign things locally with him/her, and then have HIM/HER sign the cremation papers and later inheritance quit-claims? she MIGHT go for that (if we can find her again). thanks again!

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