“New Statutes May Require Change to Power of Attorney” by Clifford S. Brown
Depending upon your view of the matters covered, two new statutes, which became effective August 28, 2008, may require a revision of your durable powers of attorney.
I. ANATOMICAL GIFTS
“Anatomical gifts” are gifts of bodies or body parts for education, research or transplant purposes. Under the prior law, such a gift could be made after your death by your agent under a durable power of attorney, but only if such was expressly authorized in the power of attorney.
The new law defines an “agent” as including a person authorized to make health-care decisions on your behalf “by a power of attorney for health care.” This agent may consent to an anatomical gift after your death if the agent “could have made an anatomical gift…immediately before the decedent’s death.” Thus, it is crucial to determine if your agent could have agreed to an anatomical gift before your death, whether or not the agent did in fact agree to such gift. This is where the new law works a substantial change, by providing that your agent could agree to a lifetime anatomical gift.
“unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift.”
The result? Unless your health-care power of attorney prohibits your agent from agreeing during your lifetime to an anatomical gift effective at your death, then the agent can agree to such gifts during your lifetime and/or after your death.
The rules governing the application of new statutes generally make statutes applicable only in the future, in this instance only a health-care power of attorney executed on or after August 28, 2008. For those who want no questions, however, a revision of your health-care power of attorney may be in order.
II. RIGHT OF SEPULCHER
The “right of sepulcher” is the right to control the “burial, cremation or other final disposition” of a deceased person’s body. In short, the right to control a deceased person’s funeral. Under the prior law, this right was conferred first upon the surviving spouse, if any, then the children, parents and siblings, if any, in that order.
The new law changes this order by granting first priority to an
“attorney in fact designated in a durable power of attorney wherein the deceased specifically granted the right of sepulcher…to such attorney in fact.”
Thus, an individual may “specifically” confer the right of sepulcher on his or her agent (“attorney in fact”), but in the absence of a specific grant, then the priority remains surviving spouse, children, etc.
The person designated under the power of attorney must be at least 18 years old, mentally competent, and “willing
to assume responsibility for the costs of disposition” of the decedent’s body.
Many individuals have strong beliefs regarding anatomical gifts and the right to designate who will control their funeral and burial. Disagreements among family members regarding these matters can be heated and ultimately destroy family relationships. The new statutes provide a definitive means for an individual to resolve any questions, one way or the other, and to control his or her own destiny.
If these matters, as well as avoiding potential family disputes, are of importance to you, then a revision of your powers of attorney may be in order. If we can help, please call.