A Missouri funeral director recently called for advice.  He received a first call for an individual that died without a spouse or children.  The deceased had a surviving parent and several siblings, but a distant relative was asserting the right of sepulcher by virtue of a durable power of attorney.  The funeral director had reviewed the power of attorney form and found separate provisions giving authority to consent to an autopsy and to make an anatomical gift.  But the form did not include a provision for exercising the right of sepulcher.   After reviewing the power of attorney form, we found the funeral director to be correct.  The form had been prepared by an attorney, and that attorney did not include the necessary language for exercising the right of sepulcher. 

Under Missouri law, as it is with most states, the right of sepulcher is a special power that must be set out in the power of attorney form.  Consenting to an autopsy or making an anatomical gift of all or a part of the principal’s body are also special powers that must be expressly set out by the power of attorney form.  These special powers cannot be implied from similar types of powers.

With the POA form that was presented to the funeral director, the drafting attorney had used language from the statute to address an autopsy and/or anatomical gifts, but stopped short of including the right of sepulcher language.  As a result, the distant relative did not have authority to direct the funeral.  Instead, the funeral director was required to seek instructions from the parent.  If the parent declined or deferred to the siblings, then those siblings had the right of sepulcher.