Family Law Question (Funeral Rights)

Updated on July 26, 2010
O.M. asks from Fort Worth, TX
11 answers

My dad passed Monday. My mom who is legally still married to him, was grated power of attorney while he was in the hospital due to his inability to make decisions because of his scorrosis (sp) of the liver, his levels were so high, he didn't know what he was saying half the time. My sisters decided to take matters into their own hands and plan the furneral. My dad told some he wanted to be cremated. My sisters did not agree with it so they called the funeral home, and had him embalmed and everything without our knowledge (the other 3 siblings or my mom)...My mom put a stop to it as she wanted him to go to a different funeral home. Now that my sisters were not getting what they wanted, they have come up with some letter they state he signed and had notoraized giving them the power to make these decisions. How can I make them hand over a copy? Would it even be legal if he "signed" it while "incompetant" as the doctors stated? Would my mom still have the right to make the decisions? This is a real mess, any information would be greatly appreciated.

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answers from San Antonio on

I thought whoever had power of attorney made the decisions. You could call and ask the funeral home...they wouldn't want any legal ramifications.

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answers from Chicago on

For what it is worth in IL:
A individual grants Power of Attorney (two types: healthcare and finances) for him/herself while alive and of sound mind. In the absence of a POA-HC, in IL a hospital can invoke the IL Health Care Surrogate Act giving a person the authority to act on a patient's behalf. The highest ordered individual(s) is the one that is granted this decision making ability. The order is as follows: 1) court appointed guardian, 2) spouse 3) adult child/children 4)parent 5) adult sibling(s), adult grandchild/grandchildren 6) close friend and 7) guardian of the estate.

So the questions are:
1) Was your mother granted POA-HC by your father or granted the decision making ability by using a similiar law like the Health Care Surrogate Act? POA is the preferred method but in IL, the Surrogate Act is widely used and upheld but ONLY if there is no known POA-HC.
2) If your sister held POA-HC she would have had to produce a copy of it and its validity determined. Did she do that?

Your sister may very well have a signed and notarized letter but if it was signed while his mental status was questionable, it certainly could be challenged in a court of law. That would take time and money to legally pursue. Meanwhile, your father is waiting to be laid to rest.

Another thing to consider is who is the executor of his estate. Often times, this person is appointed the responsiblity of arranging burial services etc. Who is that person?

I think everyone needs to take a deep breath, put hurt feelings aside and come to a collective decision on what is the best course of action. Death can bring out the worst in people. It's not the time to make more drama in an already stressful time.

***I am not an attorney but rather have worked in hospitals for years where these type of situations came up daily. ***

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answers from Abilene on

In Texas a Power of Attorney, whether Statutory Durable Power of Attorney or Medical Power of Attorney is null and void upon a person's death. That is when the Last Will & Testament goes into effect. If there is no stipulation in the Will and your dad did not make arrangements with a funeral home, then it is up to his spouse to decide arrangements. If she is also the executor of the Will, she will be the one to carry out his bequests in the Will. Praying for your family during this difficult time.

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answers from Tulsa on

Only an attorney can tell what the laws in your state/area are anything else is just hearsay.

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answers from San Antonio on

I thought whoever had power of attorney made the decisions. You could call and ask the funeral home...they wouldn't want any legal ramifications.

1 mom found this helpful


answers from Portland on

Hi O.-

My understanding of this type of family issues here in Oregon, if a POA is not on file the order is- Wife, adult children, parents, siblings/other family member. I believe this would include health issues too.

Since your parents were legally married at the time of his death AND because there were not other instructions on file with the state, it sounds that your Mom had the legal authority to make decisions regarding your father's body. I seriously doubt the legality of the POA would be an issue, since they were still married.

If you feel you need to persue this, I'd call an attorney.

R. Magby


answers from Dallas on

As long as your Mom has power of attorney she is the only one who has any legal rights. Your siblings would have to hire a lawyer and go to court to override her. And a judge is not going to do that as long as your Mom is in her right mind.Did your Mom leave a will? If so you will have to contact his lawyer to probate it and he can help you with this matter. The decision concerning his remains can only be made by his wife anyway unless she chooses to let someone else do it. Have her call the funeral home or visit and tell them that no one else is authorized to make the arrangements but herself.



answers from Las Vegas on

ugh! I am sorry for your loss and the mess this loss has created! With your mother being married to him at the time I can't see any reason they would have a POA on hand, other than he was confused when approached for a signature, therefore making the sisters POA void. I am so surprised the funeral home is taking instruction from them. Who signed for him at the hospital? When my father passed, he was married, but his wife was in the hospital recovering from some cancer surgery and I had to sign for him. All instruction came from me. All phone calls came to me. While I am not an attorney, If I were your mother, I would provide the funeral director proof of marriage and carry on. It is up to them to prove otherwise, although you may have to seek professional assistance.



answers from Erie on

my condolences and sympathy for trhe mess you are dealing with. Only thing i can suggest is getting an attorney and paying for some help.



answers from Dallas on

You need to contact a good family lawyer. Your mom has more rights then your sisters.


answers from Dallas on

This sounds very messy. A power of attorney means nothing except the purpose it served. Your Mom had the right to make medical decisions on his behalf, but that's no longer valid.

If he signed an affidavit while incompetent, it would not be legal, but this is for a judge to decide.

If I were you, I would call a lawyer immediately.



answers from Jacksonville on

Sorry for your loss. I am grieving the loss of my dad as well. I am not a lawyer, but I would think the POA should make that decision. And even if your mom wasn't the POA, she is the wife and your sisters overstepped their boundaries by going behind your backs to do something against your father's wish. If they felt he signed, they should reveal that document. Going to a lawyer depends on how deeply upsetting it is to do one or the other (cremate or embalm) If it's not really a big deal to your mom, and her being at peace with the decision, and the reason your dad wanted cremation (it may have been a passing thought to aleviate a burden on you guys, but not really meant to be etched in stone) then since he is already gone, I would settle that what's done is done. If it's really an issue, then see a lawyer about the legal ramifications. The least you would end up doing is getting the body and cremating it, but who wants to deal with this back and forth with a dead body anyway. Hope you guys can come to some agreement and peace about it. Your dad needs to rest in peace without the mess.

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