The California Legal Blog

Fran the funeral home director called the other day. Our office had been providing ongoing legal services related to her business structure. She knew that, in addition to other services our law firm provides, one of the areas we specialize in was “dealing with the dead”.

Her problem was a unique one to most, but perhaps not something that uncommon in her industry. Her question-I have a family “feuding” over what to do with their recently deceased husband/son’s body-and she was now in the middle.

A couple of months before John had died, and while he was very ill, his wife had contacted the funeral home to pre-arrange for services and cremation. When John died his body was delivered to the funeral home to proceed with those arrangements. Shortly after the body arrived, Fran was contacted by John’s nephew who explained that due to religious reasons the body should not be cremated or disposed of in the pre-arranged manner. The wife did not agree. In the meantime, Fran had a body “on ice” at her business for who knows how long

The question: Who had the right to control the disposition of John’s remains?

John did not have did not have a Durable Power of Attorney for Health Care which would have allowed him to designate who he wanted to be responsible for the disposition of his remains. Because he did not have that document, the person who had the right to control the disposition of his remains is determined by California law.

Under California law (Health and Safety Code §7100) the hierarchy is as follows:(1) a competent surviving spouse, (2) competent adult child(ren); (3) competent parent(s); (4) competent adult sibling(s); (5) competent adult next of kin; (6) conservator of the person; (7) conservator of the estate; and finally (8) the public administrator

Fran was concerned over the familial relationship between John’s wife and nephew, but at the same time did not want John to remain in her “fridge” because of this family dispute over his body. We wrote a letter for Fran to provide to the wife and nephew to make clear that her legal obligations were to follow the directions of the surviving spouse and absent court intervention she would proceed with the cremation.

Moral of the story: Have a Durable Power of Attorney for Health Care which clearly sets out who you want to have the authority to dispose of your remains and communicate your wishes (whether they be religious or not) to that agent and other family members so that you’re not just “chillin” should your family members be at odds about what to “do with you”.