Everybody should have an Advance Health Care Directive. This important document names an agent to make health care decisions for you if you cannot do so for yourself, and it allows you to express your wishes for end-of-life care. The authority of the agent ends at death, except, the agent has two important functions that continue after you die. The first is the ability to authorize organ donation. The second is to direct disposition of remains.
An Advance Health Care Directive allows you to express your wishes for burial or cremation, funeral, or memorial. Even if you don't state your wishes in the document, the agent you name has the authority to claim your body from the mortuary and make decisions about burial or cremation.
What happens if you don't have an Advance Health Care Directive? Under California law, closest relatives can claim your body. Priority is given first to a spouse, followed by children, then grandchildren, and so on. But, the relative may need a Court Order to satisfy the mortuary. The situation is so common that there is a Court-approved petition form, with boxes to check, to obtain a Court order authorizing release of the body.
I recently helped a Successor Trustee who was the decedent's trusted friend and neighbor. The decedent died without an Advance Health Care Directive. In this case, the decedent's closest living relative was a sister living in Hungary who did not speak English.
The Court ordered the Trustee to obtain the sister's consent to release of the body to the Trustee. The Court required the consent to be translated to English by a certified translator. I had to appear at a Court hearing which lasted more than an hour until our case was called, the last on the calendar. The whole process took several weeks, and the legal fees and costs totaled more than $1,000.
Eventually the body was released for cremation and the funeral home was able to proceed with the memorial. The experience drove home the importance of the Advance Health Care Directive, not for the obvious reason of end-of-life care, but for this other reason. The delay and all the expense incurred to obtain release of the decedent's body could have been avoided by advance planning.
Planning Ahead Column
By Lisa C. Alexander, Esq.
Contact Lisa at Jakle, Alexander, & Patton, LLP by calling 310-395-6555 or