The traditional funeral and burial remains the preference of many individuals.  Understanding that this type of arrangement will be more expensive, many of those individuals purchase a preneed contract to spare their survivors a financial burden.  But what happens when a child does not respect their parent’s preference for a traditional funeral and burial?  Upon the last parent’s death, the right of sepulcher passes to the children.  The children must enter into an at-need arrangement with the funeral home.  But rather than use the preneed contract’s guaranteed prices, some children downgrade the arrangement to a cremation and request a refund of the preneed contract’s excess funds.  

 When the traditional funeral and burial is important to the consumer, the funeral director can discuss how the right of sepulcher can be delegated to a person that the consumer trusts to carry out their funeral preferences.  Each state has a next of kin statute that recognizes an individual’s right to bypass the next of kin priorities by assigning the right of sepulcher to someone else.   The durable power of attorney is most widely used form for assigning the right of sepulcher. 

Most funeral directors are aware that a durable power of attorney form can be used for the right of sepulcher.  However, many funeral directors refer consumers to the power of attorney form offered by their state’s Bar Association for attorneys.   The problem with these Bar Association forms is that they frequently include springing powers or require the consumer to make a specific election for the right of sepulcher.  We previously posted on the problems with springing powers in Last Rites Denied, and would encourage you to read that post. 

The Bar Association forms may also include revocation language.  It is typical for all power of attorney forms to include a provision that revokes all prior powers of attorney.    If the funeral consumer already has other power of attorney forms in place, the execution of the Bar Association form for sepulcher purposes will revoke those other POA forms, and throw the consumer’s estate plan into chaos. 

It would be best for the funeral home to develop and use a power of attorney form that touches four bases:

  1. Includes language to make it durable
  2. Includes the appropriate right of sepulcher language
  3. Becomes effective immediately (avoiding the springing provision)
  4. Acknowledges that other powers of attorney may exist, and are to be given priority in areas other than the right of sepulcher