We recently came across a Missouri Law Review article that examined a Missouri Court of Appeals case that ruled a durable power of attorney for health care decisions was ineffective for the granting a right of sepulcher. The form included a “springing” clause which was never triggered by two physicians’ determination of incompetency. The article provides detailed explanation of the facts, but erroneously concludes that Missouri law has a flaw regarding the granting of the right of sepulcher. With R.S.Mo. Section 404.710.6(8), the Missouri Legislature authorized the use of a financial durable power of attorney for the granting of the right of sepulcher. Springing clauses are not commonly used in financial powers of attorney.
We have seen where specially drafted financial powers of attorney can also ‘backfire’ on the individual attempting to grant the right of sepulcher. In a ‘special power of attorney for the right of sepulcher’ form found on the internet, a Missouri funeral home offered a form that included the following provisions:
To arrange and purchase funeral goods and services and to enter into contracts with funeral homes and/or funeral home operators on my behalf and for the benefit of myself, and in regard thereto, to execute funeral home contracts upon such terms and conditions as my said Agent shall think fit.
……….and to make prepayments and/or payments for such goods and services utilizing my funds.
This Power of Attorney shall become effective immediately, and shall not be affected by my disability or lack of mental competence, except as may be provided otherwise by an applicable state statute. This is a Durable Power of Attorney. This Power of Attorney shall continue effective until the final disposition of my body is carried out as directed in this instrument.
We have highlighted language from the form that is vulnerable to challenge. Borrowing the general powers of the Missouri statute, the form purports to give the designated agent the authority to pay for a funeral and burial after the principal’s death. It is probably the assumption of the principal, agent and the funeral home that the principal’s resources can be used for payment of the funeral and burial. However, while the statute grants authority to carry out the right of sepulcher, the authority to use the principal’s resources will terminate with the principal’s death. If the funeral and burial arrangements are not prefunded through preneed contracts or a final expense trust, the right of sepulcher agent will be deprived the funding needed to carry out the principal’s wishes.