Who controls "You" when you die?

Lots has been written about who controls your "money and stuff" when you die, but who gets to make decisions about "You"?  Who gets to say what your funeral service looks like, whether there'll be a burial or cremation, where your ashes might be scattered, or cryogenics or other alternatives?  Your might be shaking your head about the need to ask such a question, but I was just told a story that falls squarely within this question.  A gentleman passed away overseas. He told his brothers he wanted to be cremated, and the ashes scattered, but his ex-wife and children want the body back for a funeral and burial. Who gets to decide?

According to New Jersey law, the the first person who gets to decide what is done with "you" when you die, is you. NJSA 45:27-22 states that you can appoint a person in your Will to control your funeral disposition of the remains. That person does not need to be your executor, and the funeral/disposition can occur prior to the probate of the Will (very important as the Will cannot be probated until 10 days after death).

But what if you didn't appoint someone?  In that event, the statute directs that certain people or groups of people are given the authority to make the decision, in order of priority:

(1) The surviving spouse of the decedent.
(2) A majority of the surviving adult children of the decedent.
(3) The surviving parent or parents of the decedent.
(4) A majority of the brothers and sisters of the decedent.
(5) Other next of kin of the decedent according to the degree of consanguinity.
(6) If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

Going back to the example above, if the children are 18, they would be allowed to say will be done with the gentleman's remains, even though he orally told his brothers that he wanted to be cremated and did not want have a funeral. This underscores the point: if you want the person who makes decisions about what happens to "you" to be you, you must make your wishes known in your Will and appoint someone to carry them out.

An additional wrinkle in the example I gave is that the person passed away in another jurisdiction, not even another state, but another country. The laws of that jurisdiction will have priority over the laws of New Jersey in dealing with this question, but the laws of the other jurisdiction may defer to the laws of New Jersey law to answer the question, so it is still critically important that you make your wishes known in your Will.

Image: Arvind Balaraman / FreeDigitalPhotos.net

Pre-Paid Funerals - Buyer Beware?

Over the weekend the Wall Street Journal ran When Prepaid Funeral Plans Are Wealth Killers subtitled "Long Pitched to People of Lesser Means, the Controversial Deals Are Going Upmarket—and Now May Carry Bigger Risks".

Prepaid funerals at the heart are just what they say - you pay now for your funeral upon your death. Elder Law attorneys commonly advise clients who have a loved one in a nursing home and are spending down all their assets to consider purchasing a prepaid funeral.  The expense of a funeral will exist for the family whether their loved one has assets or not - such as in the case of a person who has needed spend down all their assets to qualify for Medicaid to pay for their long term care needs. The purchase of an irrevocable pre-paid funeral is a permissible spend-down before applying for Medicaid.  For many, it is a sensible choice to prepay the $10,000 a funeral averages than to pay another month privately to the nursing home - it is not as if a person who has qualified for Medicaid will have an estate with assets to pay the funeral costs.

A key point is that the payment must be made to in irrevocable funeral trust in New Jersey so that the amount of the prepaid funeral is not "countable" and thus must be liquidated and spent down before Medicaid can be qualified for.  Compare this to a "funeral insurance" life insurance policy, which is a countable asset for Medicaid purposes, and thus potentially must be liquidated and spent-down before a person qualifies for Medicaid.

The article takes issue with situations of potentially unscrupulous sales of pre-paid funerals, whether into trusts where the assets weren't there at the end, or the family didn't get the services they thought they paid for, or they ended up paying more in insurance premiums than the value of the policies.  It notes that " In November, New Jersey started requiring cemeteries to deposit all of the prepayments they receive for burial services into a trust fund for safekeeping."

Notwithstanding that a person always needs to be aware of the "small print" on any large purchase, prepaid funeral will remain in the Elder Law attorneys arsenal, and are a good solution for families who find themselves in a position of potentially having no estate to pay funeral expenses.