Who is Legally in Charge of Your Funeral?
BY JODI M. CLOCK, CCA, CPLP, AUTHOR, IT'S COMPLICATED!
Do you know legally who is in charge of your funeral, should you “wake up dead?"
Recently, I found myself in the emergency room. Fortunately, I was released. This was not the case for two other people that day. During the course of my six hour visit, I witnessed two people die.
The first death was an individual who was brought in by ambulance, the second was a person who coded then expired in the room next to me. One happened early on during my stay, the other towards the end. On each occasion, I could not help but wonder if they had a life after death plan in place.
My experience was both thought provoking and eye opening. Most of all, it validated my passion for encouraging people of all ages, not just seniors, to plan for the worst and hope for the best! After all, just because a plan is made and legal documents are created, doesn’t mean that they can be changed. In fact, at the different phases of a person’s adult life, they should be reviewed, re-evaluated, and updated.
As I reflected on the two families that lost a loved one that day, I couldn’t help but wonder outside of the emotional heartache, were their survivors prepared? My guess is no.
The other question that kept running through my head was who was going to be the individual responsible for their funeral plans. People don’t know what they don’t know. Chances are, this was their first experience with the death of a loved one. This begs the question, if you do not have a spouse, do you know who is legally responsible for overseeing your funeral should you “wake up dead?”
Let’s just say, it’s not as straightforward as you would think! Especially for same sex couples, those who have a union and are not legally married, couples in a common law relationship, or if there is an estranged spouse and are not divorced.
Let’s break the situations down, in terms of who legally must sign the cremation or burial documentation. Notice the term estate was not used. A person can delegate whomever they want to oversee their estate or advance directives as long as the proper forms are drawn up, considered legal in their state, signed and notarized.
This does not include their cremation or burial wishes, even if pre-arranged or pre-funded. The only document that can supersede the nuclear traditional family for these types of decisions, is a form called a Funeral Representative Form. In the case of there being no family or extended relatives, the medical examiner can petition the state to declare the person indigent and sign the funeral documentation.
Below is the responsibility decision tree for a deceased individual.
Minor
• Both parents equally
• Parent(s)
• Grandparents
• Adult siblings (majority rule)
• Cousins
Single Adult
• Military Service – PADD if death occurs while on active duty/deployment ** See below
• Funeral Representative
• Adult children (majority rule)
• Grandchildren (majority rule)
• Parent(s)
• Grandparents
• Adult siblings (majority rule)
Married Couple
• Military Service – PADD if death occurs while on active duty/deployment ** See below
• Funeral Representative
• Spouse*
• Adult children (majority rule)
• Grandchildren (majority rule)
• Parent(s)
• Grandparents
• Adult siblings (majority rule)
*In states where they acknowledge same sex marriage spouse can make the decisions. In states that do not honor the union/marriage you must have a Funeral Representative. The is also true for common law marriages and couples who elect to life together but are not legally married – regardless of time spent living as a couple.
**Person Authorized to Direct Disposition (PADD). The individual who fills this role is usually a family member and is entitled to direct the disposition of the remains. The determination is based on order of precedence as delineated below unless member designates differently on their DD Form 93, Record of Emergency Data.
When married individuals separate, but do not divorce, it creates chaos for the funeral home or cremation provider. Especially if cremation is the preferred option. Why? Cremation is irreversible! Once an individual is placed in the retort, there is no turning back. Conversely, if a person is buried, they can be disinterred and then cremated or even relocated to a different gravesite should the legal next of kin decide to do this.
In today’s world of non-conventional families, this happens quite a bit. Typically the resistance for an estranged spouse to refrain from signing off, has to do with finances. In the majority of cases, once the estranged spouse understands that it’s only their signature that is required and the deceased loved ones or insurance will pay the bill, the problem is easily resolved.
So, what’s the call to action? Have the talk with your significant other. Make sure you have your ducks in a row. If you need a Funeral Representative Form, ask your funeral home or attorney. By doing this, it can and will save family turmoil.
https://music.amazon.com/podcasts/e3bc9d5e-916b-4e4e-a256-417a481c1622/i-woke-up-dead-now-what
Be sure to check out my podcast, “I Woke Up Dead…Now What?” to learn more! Feel free to contact me at askjodiclock@gmail.com and give me a follow on LinkedIn, Facebook, or Instagram!
Jodi M. Clock is an international speaker and expert on how to help families have a difficult conversation with their loved ones about legacy planning. Having personally witnessed the financial confusion that families endure, especially at an emotionally taxing time, Ms. Clock has centered her career on helping people to understand the options that are available to them. She currently writes and speaks about the basics of Medicaid and asset protection, how to avoid family feuds, end-of-life directives and is a seasoned expert in on pet trusts, as well as their final care. Since 1988 Jodi has worked in the "end-of-life planning" industry including family and corporately owned funeral homes, advance funeral planning companies, casket manufacturers and now practices what she preaches at Clock Funeral Home and Clock Timeless Pets with her husband Dale.
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