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If You Care About Your Burial, Communicate Your Wishes

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Posted on Sep 26, 2014 | Share this post: Like Us on Facebook Join Us on Google Follow Us on Twitter

The contentious battle over Casey Kasem’s final days has continued long after the radio icon’s death.  His second wife, Jean, has moved Mr. Kasem’s body from Washington state to Canada, and has reportedly fled to Norway and wants to have him buried there.  Kasem’s children from his first marriage and friends are begging the country to deny Jean’s request for burial.

The Kasem saga is an extreme example of family disagreement over the disposition of a loved one’s body, and we’ve seen similarly high-profile arguments for icons such as Mickey Rooney and Ted Williams.  Disputes occur in more “ordinary” families as well because the emotions and relationships that cause the arguments exist in non-famous families as well.  If you hope to spare your loved ones the agony of deciding what should be done, it’s important that you 1) understand who will have the authority to decide what happens to your remains, and 2) make your wishes clear to them.

In Arizona, the duty to bury or provide funeral and disposition arrangements is governed by statute; A.R.S. 36-831 lists the surviving spouse first, so long as no legal separation or petition for separation or divorce had been filed.  Listed second is the person in the most recent health care or durable (aka financial) power of attorney “if that power of attorney specifically gives that person the authority to make decisions regarding the disposition of the decedent’s remains.”

Thus, if you have powers of attorney, you may want to look to see if there is a specific provision granting your agent this authority.  If your agent is someone other than your spouse, and you want that person, not your spouse, to handle this task, your spouse should execute a waiver of his or her burial rights during your lifetime.

After the spouse and agent under power of attorney, the duty falls to adult children, parents, adult siblings, adult grandchildren, and then grandparents.  If none of those are around and willing to act, “an adult who exhibited special care and concern for the dead person,” comes before guardian at the time of death, and any other person who has the authority.

The statute further provides that if there is more than one person in the above categories, “final arrangements may be made by any member of that category unless that member knows of any objection by another member of the category.  If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.”

So, if your six children who have different religious beliefs are casting votes, the process could take some time, and could get ugly and produce litigation.

Once you decide who is going to be in charge, it’s a good idea to give them some guidance regarding your wishes. Arizona gives you the ability to authorize your own cremation or disposition in writing.  If you execute a document stating your wishes, no one else’s consent — not your spouse’s, not your children’s — is supposed to be required, though many funeral homes prefer getting a next-of-kin signature for their protection.

The statutory Durable Health-Care Power of Attorney includes an “optional” section for checking simple disposition wishes: burial and not cremation; burial in a specific place; cremation; cremation and ashes scattered in a specific place; or, the agent decides.  See A.R.S. 36-3221.

If an attorney drafts your Power of Attorney, you can add additional instructions.  Or, you can execute a separate document that is as basic or elaborate as you wish.  Any document should be signed, dated, and signed by either a notary public or a witness attesting that, when you signed, you were of sound mind and free from duress.

Some clients do nothing, and allow their family members to decide, some clients have some general wishes, and some have a carefully crafted plan, often prepaid, with instructions, down to who can attend and what music should be played.  If your plan is elaborate and expensive, you may consider making payment arrangements in advance or stating specifically in your Will or Trust that you authorize payment of expenses your beneficiaries might view as an unreasonable drain on their inheritance.

If you wish to be buried or have your ashes scattered somewhere specific, you may consider looking into applicable law.  For instance, in Arizona, you can be buried on private property (like your own land), but there are specific rules.  There are no state restrictions in Arizona for scattering ashes, though each site may have its own rules.  For instance, the Grand Canyon is reportedly a popular spot; a permit is required from the National Parks Service and it’s free.  And burials at sea must take place specific distances from land, as regulated by the Environmental Protection Agency.

Loved ones consistently report gratitude when a decedent has created a plan – and even more gratitude when it also has been paid for.

Casey Kasem’s children and friends insist he had always wanted to be buried at Forest Lawn Cemetery in Glendale, California.  If he had put those wishes in writing, and/or purchased a plot or vault there, they would have a much stronger argument that Oslo should not be his final resting place.