Over My Dead Body

While it may not be the cheeriest topic for a new year’s article, disposition of remains after a person passes away is something that will affect everyone at some time and there are specific laws that you should be aware of in that regard. Recently, a situation arose in my law practice that brought this topic to the forefront and made me realize just how important it is to make sure your estate planning documents convey your wishes with regard to the handling of your body at death. Failure to do so may cause unnecessary grief and worry to your loved ones at a time when they are already in a fragile condition. To make sure you are aware of the law regarding disposition of your body at death, this article discusses decision making for burial and cremation. First, at your death, unless you have specifically given that right to another person in a notarized document, the following people (in the order listed) have the authority to make decisions about your burial: a spouse (if no petition for divorce has been filed), adult children, parents, then siblings, and finally, more remote relatives. If there is more than one person in a class, the decision must be made by a majority of the people in a class. For instance, if you do not have a surviving spouse, but have three surviving children, at least two of the children will have to agree to a decision for the action to be carried through. If you want someone other than those people to make decisions about your burial, you need to execute a document before a notary public giving that right to someone else. This document can stand alone or it can be incorporated into your will if it is executed before a notary. The law addressing cremation is a little different from the law addressing burial. As with burial laws, if you want to be cremated, you can execute a document before a notary public that expresses your wishes and that document will be honored. However, if you have not executed such a document, it requires the unanimous consent of all of the people in a particular class to authorize cremation. Thus, if you die without a spouse or children, all of your surviving siblings must sign a document authorizing cremation. This may be difficult if they are in other parts of the country, if they are elderly, or if they don’t have the ability to act for themselves. Recently, this situation arose in my law practice. It took over a week from the date of death until all of the required signatures were obtained from family authorizing cremation even though the deceased had verbally indicated to his executor that he wanted to be cremated. Additionally, those who are required to sign the document authorizing cremation must attest to the fact that the deceased does not have a pacemaker or any medical devices containing radioactive material in their body before a cremation can take place. Relatives who have not been involved in the deceased’s health care may not know whether any of those devices are present or not. As you can see, Louisiana law strictly regulates the disposition of your body after death and provides the people who can make decisions regarding your burial or cremation if you have not done so in a proper document before your death. To ensure that your wishes are carried out in the manner you intend, you should make sure your planning adequately addresses these items. An estate planning and elder law attorney can help guide you with this, as well as to make sure you have the other necessary documents to ensure you and your family’s wishes are carried out.