Have you considered who will have control of your body after death? In some instances, the disposition of remains may work out as planned even if the default rules set by state statute apply. In other instances, while you may hope to be dust in the wind, you may instead be pushing up daisies.
Missouri law provides that “next of kin” may determine the disposition of a body. The statute generally provides that people in the following order have control:
- An attorney-in-fact designated in a durable power of attorney that grants a right of sepulcher
- The person designated in Form 93 for a soldier in the military
- Spouse
- Children
- Parents
- Siblings, and the list goes on…
Unfortunately, even an agent under a durable power of attorney (DPOA) may not have authority, as was the situation in the 2013 case of Collins v. Shoemaker. After executing a DPOA, Collins was involved in an automobile accident and died instantly. Shoemaker, believing she had authority under the DPOA, sought to have Collins’ remains cremated. However, Collins’ children, who were not appointed as agents, wanted Collins to be buried in a family plot and filed an action to stop cremation.
On appeal, the court ruled that the DPOA had not at the time of death given Shoemaker the right of sepulcher. This was because the DPOA required that Collins be certified by a physician as being incapacitated before the agent would have the authority to act under the DPOA. Because Collins died instantly, there was never a moment when Collins was still alive but incapacitated, effectively never turning on Shoemaker’s ability to act as agent and have control of the remains.
If you are unsure who has control of the disposition of your body, please contact our Trusts & Estates group to prepare or review your estate planning documents to see if changes are necessary — especially if the person you would like to have control is not “next of kin” according to Missouri law.