An important revision to Missouri’s personal preference law goes into effect on August 28th. The original law (R.S.Mo. Section 194.119) was confusing to funeral directors about whether an individual could override the preferences of his/her next-of-kin. With the revision, funeral directors can more comfortably rely upon the individual’s durable power of attorney when following the instructions of someone other than the individual’s next-of-kin. A recent article cited the law change as an important victory for gay rights, and the rights of those who have end of life preferences that are not shared by their family members. While the law is an important development to elders and gays, they must take steps subsequent to the execution of a durable power of attorney to ensure the performance of their end of life plans.
With the durable power of attorney, an individual (the principal) authorizes his/her partner (attorney-in-fact) to act on the principal’s behalf with regard to legal or business matters. Depending upon how the durable power of attorney is drafted, businesses can then rely upon the document for their protection. While most businesses will accept the durable power of attorney, they are not required to, and may decline the transaction.
As evidenced by a recent trade journal article, funeral homes and cemeteries are often counseled against taking sides in family disputes. As reported in a prior post (Who’s Funeral is it), some funeral directors are reluctant to accept a written disposition instruction that contradicts what other family members prefer.
While it would be advisable to bring family members into the plan, that is not always possible. If a couple anticipates familes will contest their end of life plans, it would be prudent to find a death care facility that will honor the durable power of attorney with knowledge of the potential for a family dispute. I have been using the durable power of attorney for my gay clients for several years, and have always recommended that they coordinate with clergy and a death care company.