Some people are superstitious, in denial, or for other reasons, do not wish to plan or think about their death. While that is a personal choice, it does come with consequences. Planning for personal property, your pets, digital assets, your small family business, or beneficiaries with special needs is often overlooked, but an ubiquitous issue that is rarely discussed or addressed fully is what you want to happen with your remains after you die.
Take the time you need and think about what you want, then tell your spouse or loved ones. Go to the funeral director of your choice and tell them. Put it in writing there. Make an appointment with your attorney to review your Will and Power of Attorney that are currently in place. If there are none, then have documents drafted for your signature that align with your wishes.
Direction in Will and Health Care Power of Attorney
Remember that your Will comes into play when you pass away. There may be a circumstance where no one has access to your Will in sufficient time to know who the executor is or know who has the right to make the disposal decision. It is more likely that one of your loved ones will have a copy of your Health Care Power of Attorney (HCPOA). In your HCPOA, for example, you can direct that upon your death your remains shall be cremated by the least costly method. You could state that there is no interment and name who has the authority to make other decisions pertaining to the disposition of your remains or memorial services. You can also cover organ donation in your Health Care Power of Attorney by saying something like “my agent shall have the power and authority to make disposition of what we traditionally think of as organs (for example, heart, lung, liver, kidney), tissue, eyes, hands, facial tissue, limbs, or other vascularized composite allografts under the Donate Life PA Act.” Note that when you die, authority given under your HCPOA typically ends. There are circumstances, however, when it is appropriate to consult the HCPOA, even after death.
Funeral home statement
Some funeral homes provide the option of signing a Statement of Contrary Intent appointing that funeral home to determine the final disposition of remains under the terms and conditions of an Agreement that is signed by you during your lifetime. This type of “contrary intent” statement revokes prior arrangements or expressions of “contrary intent” regarding the disposition of your remains.
If you have made no plans, or your preplanning does not cover all issues related to the disposal of your remains, Pennsylvania has a statute that sets forth who can make the decision; in most instances, it is your surviving spouse, absent an allegation of “enduring estrangement, incompetence, contrary intent or waiver and agreement,” which under the statute, must be proven by clear and convincing evidence. If you have no surviving spouse, it is your next of kin. Your next of kin is defined as the same person(s) who would be the administrator of your estate if you died without a will, namely, your children. If there are more than one of those persons in a decision-making role, they may not agree. A lack of agreement may lead to family disharmony, delays, court proceedings, expense to your estate, and most importantly, your desires for your remains not being followed.
Tammy A. Weber is a Certified Elder Law Attorney and the Managing Attorney of the law firm of Marshall, Parker & Weber, LLC with offices in Williamsport, Jersey Shore, and Plains. For more information visit www.paelderlaw.com or call 1-800-401-4552.