The widespread adaptation by states of right of disposition laws that contain a priority list of who controls the funeral and disposition and provides mechanisms for resolving disputes. 48 states now have laws on the books governing disposition rights. Although more than half of the laws do not contain all of the key components of an effective right of disposition law, over 20 of the laws, especially those that have been enacted in the past 5 years, provide comprehensive disposition elements and extensive protections for funeral homes.
One of the more important developments in mortuary law over the past 20 years
- A mechanism for an individual to control his or her disposition at the time of their death
- A detailed priority list specifying who holds the right of disposition
- A list of events and situations under which the right of disposition may be taken away
- Extensive protections and immunities for funeral homes and other death care providers.
An Effective Right to Disposition Statute has 4 Primary Components:
One of the primary components of state right of disposition laws is to give an individual the right to control the disposition of his or her own body upon death.
Mechanism to Control Disposition
In all states except for Michigan, Alaska and Hawaii, an individual may leave binding disposition instructions or appoint an agent who has the power to make binding funeral and disposition arrangements. In about half of those states, an individual has the option of either leaving binding instructions or appointing an agent.
Binding Disposition Instructions and/or Appointing Agents
Does not give the right in its law.
Do not have right of disposition statutes.
Alaska and Hawaii
In ___ states, the law allows an individual to leave binding funeral and disposition instructions. Most of these statutes specify that the instuctions may be contained in a will, preneed contract, or other written instrument that is signed by the decedent and properly witnessed or notarized. A few states recognize that even oral instructions left by the decedent may be binding.
In ___ states, there is a mechanism in state law that allows an individual to appoint an agent or representative to make all funeral and disposition instructions. The appointed agent has superior rights even over the next-of-kin or spouse. The appointment instrument, which usually must be witnessed or notarized, will sometimes include the option for the decedent to specify funeral or disposition instructions that the agent is required to follow.
Most individuals do not take advantage of available legal mechanisms to plan _____ of their own remains.
- The surviving spouse
- Adult children
- Adult siblings
- All other relatives in a descending order of priority
- In absence of relatives, state law may provide that a guardian or executor may execute the right.
Usually include a default provision at the end of the priority list which allows anyone, including the funeral director with custody of the body, to exercise the right of disposition if there are no family members willing or available.
Effective Right of Disposition Laws
- Missing relatives
- Majority control
- Waiver of uncooperative relatives
- Homicide cases
Key Components to Address Conflicts and Uncertainties:
One of the most important features of an effective right of disposition law is a provision that takes away the right of disposition from any person who cannot be located.
- cannot be located by reasonable measures- funeral home may make arrangements with other individuals who are lower on the priority list.
- Allows the funeral and disposition to take place within a resonable amount of time without the need to hold off arrangements
- 40% of states have a provision which disqualifies a person who cannot be located.
Two or more individuals who hold equal rights. (state law)
- Allows a majority of those who hold the rights to control the disposition
- Brings certainty to the funeral and disposition arrangements
- Allows the funeral and disposition to proceed, even though an individual in the minority may object to the funeral and disposition arrangements.
- About half of the states have this
- 30% of the states.
- Takes away the right of disposition from an individual who does not actively exercise the right within a specified time period.
- Time period is anywhere from 48-72 hours
- Once time period expires, funeral home may proceed to persons down the priority list
Waiver of Uncooperative Relatives
Nearly impossible to make arrangements for someone who is arrested for criminally causing the death of the decedents whose disposition he or she controls.
- Right of disposition laws take away the right
- One third of the states have this
There are three primary protections that funeral homes want to include in a right of disposition statute:
- Right to rely
- Ability to recover costs
- Comprehensive immunity provisions
Protection for Funeral Homes
Involves provisions in the law which grants the funeral home the ability to rely upon the representatives of a family member. Relieve the funeral home from:
- Any duty to independently investigate the truthfulness of a family member's claim or to search for missing relatives
The Right to Rely
If the funeral home is caught in the middle of a dispute between the family, the right of disposition statute specifically authorizes the funeral home to stop all funeral and disposition arrangements until the dispute is settled.
- Some states allow recovery of embalming and refrigeration costs which may be incurred as a result of the delay
- Some states allow funeral home to recover legal costs if they have to initiate court proceedings to resolve the dispute
The Ability to Recover Costs
Protects a funeral home from criminal, civil, or disciplinary claims if they have relied in good faith upon representations of family members that may later prove to be untrue.
- Some states require representations in writing (always advisible to document representations)
A statute based upon a model law. (Most states have an identical statute). Generally provides that any individual of sound mind and legal age may donate all or part of his body upon his death. The person may designate the gift in his Last WIll and Testament. The gift is effective upon death without waiting for probate. If the will is invalid for any reason, the gift is valid to the extent it was acted upon in good faith.
Anatomical Gift Act
- May also be made by a document other than a will. - Must be signed by the individual in the presence of two witnesses.
- Many states have a perscribed form
- Many states have statutorily provided that a person may legally use the reverse side of a valid drivers license as a donation form.
Documents Other than a Will
Authorized to make donations of the decedent's body:
- Surviving spouse
- Adult chidren
- Adult siblings
- Any other person authorized
Anatomical Gift Act- Next of Kin
- Can reject the gift- contrary indications, opposition.
- Accredited medical or dental schools
- Medical storage banks
- Designated persons needing therapy or transplantations
- Must employ the gift for medical or dental research, education or the advancement of medical science or therapy.
Donees of the Anatomical Gift Act
If the gift is an ___ ____, the NOK may, subject to the terms of the gift, authorize embalming and the use of the body in funeral service.
If the gift is a ____ of the body, the remainder may, after removal of the donated ____, be delivered to the surviving spouse, next of kin, or other person for disposition.
The Act provides that, any person acting in good faith compliance with the Act shall not be liable for _____ in a civil action or subject to ______ in a criminal action.
Damages or Prosecution
Takes precedence over any contrary wishes of the survivors. Provided that the gift has been made in compliance with the legal requirements of the Act, no relative can supersede the gift.
There is no Question Regarding the Supremacy of a Gift made Under the Anatomical Gift Act