Is your Health Care Power of Attorney missing this key component?
Who has the power to handle the disposition of your remains?
Most of us think about the Health Care Power of Attorney (HCPOA) as a legal document that gives another person the power to make our medical decisions for us if we cannot make them for ourselves. All of that is 100% true. But a little-known fact about a North Carolina Health Care Power of Attorney is that it also gives you a chance to designate the person who is to be responsible for handling the disposition of your remains. Note that this is not an automatic power included in the HCPOA. You must make an affirmative election to include this authority.
Why is this important? If you do not assign this responsibility in your HCPOA, your loved ones may run into problems with the funeral home. This happened to our attorney, Amy, in February when her uncle died. She served as her uncle's Health Care Agent under his HCPOA and had been working closely with the hospital and then the hospice team during her uncle's last days. After his death, she called the funeral home to make arrangements for her uncle's cremation only to be told by the funeral home director that he could not work with her. He would only speak to the person he considered to be the next of kin. The reason given by the funeral home director was that the HCPOA did not include a specific grant of authority to Amy over the disposition of her uncle's remains.
It defies logic that a Health Care Agent can instruct the hospital to cease all efforts to prolong someone's life but cannot instruct the funeral home on how to properly care for that someone's remains. But that is the case when your HCPOA leaves out this key component.
If you have a perfect family life - one where all the different relatives get along with nary a cross word exchanged or feeling hurt - then this may not sound like a problem. Yet, if you are estranged from your family or in the process of a separation or divorce, then this is hugely problematic! You certainly would not want your legal next of kin in these scenarios in charge of planning your burial, cremation, or memorial service. If you want to Rest in Peace, then be sure to include the power to handle the disposition of your remains in your Health Care Power of Attorney.
Still not convinced of the importance of including disposition powers? Let's talk LAWSUITS! A colleague recently shared the sad story of a divorced couple whose adult son had died tragically. The mother said her son wanted to be cremated. The father said his son was opposed to cremation and wanted a traditional embalming and burial. Unable to resolve this dispute between themselves, one parent ended up filing an injunction with the court to prevent the funeral home from touching the son’s body in any way until a judge rendered a decision on how the son’s remains were to be handled. How devastating is it that, even in death, their son continued to be a pawn used by these divorced parents to inflict pain upon each other!
Here's another scenario: suppose a mother dies leaving behind three kids, and all three kids have different ideas about how mom's remains should be handled or where her final resting place should be. If the kids cannot work it out amongst themselves, what happens to Mom? LAWSUIT!
Good planning solves problems before they ever occur. So, how can you easily avoid ALL of this unpleasantness? Simply let the Health Care Power of Attorney do what it was designed to do. It's as easy as 1-2-3!
If you do not have a Health Care Power of Attorney in place, get one!
If you have one already, read it to see if it includes the power to direct the disposition of remains so you can avoid costly, time-consuming, emotionally-fraught, pointless lawsuits. Rest easy knowing your voice will be heard and that the person you choose is the one working with the funeral home to carry out your last wishes.
If you have a HCPOA but it is silent on this topic, please contact us! We can help make sure you are treated with dignity and compassion at your end.
Phone: (919) 678-5761