Worm food… or ‘crispy critter’?

OK, I admit, these terms are our mom’s perennial attempt at humor whenever we bring up the subject of what we want to happen to our mortal remains once we have shaken them off. In other words, burial or cremation?  And more interesting, from the lawyerly perspective, WHO gets to decide, and what if there’s a dispute?

I recently set out to find Hawaii’s answer to that question, since it differs from state to state. In NY, for example, as in many states, there is a specific statute that determines who has the right to determine the disposition of a dead body. I had a chance to become very familiar with that statute when working on a case (Maurer v Thibeault) where the decedent’s husband – who was under suspicion of having murdered her – wanted her body cremated and scattered on “their” farm, while her mother insisted that she would have wanted to be buried in the family plot, with her father, and as far away from the ‘estranged’ husband as possible.  The court found that this situation provided an exception to the general rule (in NY) that one’s spouse gets the final say, and allowed the mother to carry out her plans. (The husband was later convicted of having murdered his wife, and sentenced to 25 years to life; an appeal was taken and the conviction was affirmed.)

Back to Hawaii – where, my research revealed, there is no statute governing this issue. Nor does there seem to be much (if any) Hawaii case law on the subject. So where does that leave us?

Well, it leaves us with the general common law, which Hawaii courts tend to follow in the absence of other precedent. In this case, before states began to enact statutes governing the issue, there does seem to have been a general consensus that the wishes of the decedent – insofar as they can be determined – are to be the “final word” in determining what becomes of his or her remains, and that such wishes may be expressed in one’s Will, in any other writing, or even orally to one’s family or friends (but see below for the pitfalls of failing to put your wishes in writing).

This proposition finds further support in a detailed Hawaii statute governing the making of “anatomical gifts,” that is, the donation of all or part of one’s body for teaching, research, transplantation or therapy. In that statute, the Legislature has essentially declared that the decedent’s wishes – at least those put into a writing that clearly expresses an intent to make, or “refuse” to make, an anatomical gift – will usually prevail. In addition, that statute expressly provides that such declarations, if made in someone’s Will, are controlling, even if (as would most likely be the case) the Will has not been admitted to probate at the time the “gift” is to be made.

It therefore makes sense to presume that a Hawaii court, faced with a similar decision regarding the final disposition of remains outside of the context of an anatomical gift (i.e., a decision regarding whether to bury or cremate, where to bury or scatter, or the like), would also tend to follow the decedent’s expressed wishes, and to give special accord to such wishes expressed in a formally executed and witnessed document such as a Will.

But there are some practical problems with putting these wishes (only) into your Will. In most cases, decisions about disposition of a body must be made very shortly after death, at which time the decedent’s Will may not have been found. Many people do not think to look for, or look at, a Will until days or weeks (or even months) after the immediate arrangements have been made and carried out. Of course, if there is a dispute between children or other relatives, some or all of them may go looking for a Will to support their position. But what if you want to be buried in your old family plot on the Big Island, and not knowing that, your children elect to have you cremated and scattered at sea? Will they think to look in your Will to determine your wishes?

Probably not, if you have not talked to them about the subject.  And that brings me to my recommendations for dealing with this difficult subject.

First – Three steps to improve the chances that YOUR wishes will be followed after you’re dead:

(1) Place your wishes in writing, both in your Will and in another, separate writing. In that separate writing, spell out all of your wishes and desires. It is also a good idea to specify a single individual whom you would like to make decisions about issues that you might not have considered, or to resolve any disputes regarding specifics. Such a designation may not be legally binding, but any court would surely give it some weight if it is convinced that you were legally competent when you made the nomination, particularly if the nominee is one of the individuals involved in the dispute.

(2) Give a copy of the separate writing to a trusted friend or advisor (not to a family member or the individual nominated as decision-maker)

(3) Discuss this issue with everyone who might get involved in that type of decision-making after you’re gone, and make sure that they know that you have recorded your wishes in writing, and the identity of the record-keeper.  That way, everyone will know that there is a record of your wishes, and that if they advocate a different course of action, or insist that you wanted something different, that others will be able to counter by producing your written, signed document.  This should minimize the likelihood of a challenge even occurring, and increase the probability that if there is a challenge, your wishes will prevail.

Another way to make your wishes known, and to increase the chances that they will be followed, is to buy the services that you want now. If you have paid for a casket and a cemetery plot, it is less likely that someone will convince a court that you really wanted to be cremated.  You have, in essence, created not only a written record of your wishes (in the form of your purchase contract), but have ‘put your money where your mouth is’ and made it more costly for someone to deviate from your plan than to follow it (which will cost them nothing, as you have already paid). This can be a strong incentive!

Lastly, it has been suggested that perhaps you could draft your Will or Trust so as to punish someone who fails to follow your wishes (or reward someone who does follow them). “I leave to my son Tom the sum of $15,000, but this gift shall be null and void unless my body has been cremated and the ashes scattered in Waimea Canyon within three months of my death.” This certainly provides a strong incentive to ‘Tom’ to carry out your desires, but it could lead to unanticipated consequences. What if it is impossible to carry out your expressed wishes? What if, when you die, it is not permissible to scatter ashes in the Canyon? What if you disappear while on the ocean and your body is never recovered?  A better provision might be, “to Tom, but only if (1) my wishes, as set forth in Paragraph X, have been carried out, or (2) Tom has taken all steps reasonably within his  power to ensure that those wishes are carried out, insofar as possible.” But again, does that require that Tom go to court if another individual wants to have you buried at sea? If he loses, must he take an appeal? Who decides what is “reasonably within his power”?

OK, now that you’ve taken steps to ensure that your wishes are carried out, that brings us to the next question: what to do if you’re involved in a dispute over the disposition of a loved one’s body?

Remember that a court is likely to attempt to determine what the deceased person would have wanted, and to carry out those wishes. The best evidence you can present will be a writing by the decedent. If you don’t have one, then be sure to check that person’s Will (or even a living trust) to see if they have left instructions there. Sometimes instructions are placed WITH (but not in) other Estate Planning documents, in a folder or binder. These documents may even be saved on a computer or a CD. The attorney who prepared such documents will usually have a copy; if you don’t know who might have prepared such documents, check with local attorneys or the local bar association (they can send a note to all of their members to locate a Will or Trust, if the identity of the preparing attorney is unknown).

If there are no written instructions left by the decedent, then the court will look for other evidence of his or her wishes. This could be in the form of oral statements made to friends or family. But be aware, that such evidence can prompt a “he said, she said” kind of wrangling – it is easy to testify that the decedent “told me he wanted to be cremated,” if that is what the witness would like to occur. If you can substantiate such testimony in any other way, it will likely carry more weight. The court will also determine who to believe – who is more “credible” – by considering the witness’s stake in the matter (is the person who will be paying advocating for a less-expensive option?), the level of detail provided, the number of people testifying similarly, and a host of other factors.

If the dispute does devolve into such a “he said, she said” battle over what the decedent intended, or if there is simply NO evidence of what he or she might have wanted, then a strong argument can be made that the court should take a “priority” approach to determine whose opinion will prevail. The anatomical gift statute provides (similar to the NY statute mentioned earlier) the following list of those with decreasing “priority” in making decisions about anatomical gifts:

(1)  An agent of the decedent at the time of death who could have made an anatomical gift under section 327-4(2) immediately before the decedent’s death; {This is a person who has been named as the individual’s agent in a health-care power of attorney or similar instrument}

(2)  The spouse or reciprocal beneficiary of the decedent;

(3)  Adult children of the decedent;

(4)  Parents of the decedent;

(5)  Adult siblings of the decedent;

(6)  Adult grandchildren of the decedent;

(7)  Grandparents of the decedent;

(8)  An adult who exhibited special care and concern for the decedent;

(9)  The persons who were acting as the guardian of the person of the decedent at the time of death; and

(10)  Any other person having the authority to dispose of the decedent’s body. {Interestingly, I could locate no other statute, with the exception of those dealing with “unclaimed bodies” and the like, that defined WHO “has the authority to dispose of” a body!}

There is no reason why any different priority or order should apply to other decisions about a person’s body, such as whether to bury or cremate. Moreover, a similar approach is taken in many other Hawaii statutes related to surrogate decision-making, including those determining who has “priority” to serve as personal representative of an estate, or as a person’s guardian or conservator. There is therefore ample precedent for according different individuals different “priority” in making this type of decision, based on their familial relationship to the decedent, and for putting an individual nominated by the decedent ahead of all others.

Published in: on July 19, 2010 at 2:22 am  Leave a Comment  

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