A recent decision by the Missouri Court of Appeals now requires rethinking with respect to the structure and effectiveness of Health Care Durable Powers of Attorney that contain provisions regarding “right of sepulcher.”

The right of sepulcher refers to “the right to choose and control the burial, cremation, or other final disposition of a dead human body.” Missouri law provides that “next of kin,” in a hierarchy described by statute, may determine the disposition of a body. At the top of the hierarchy, before even family, is an agent appointed under a durable power of attorney.

In the recent case of Collins v. Shoemaker, the decedent, Collins, had executed a “Durable Power of Attorney for Health Care Choices and Health Care Directive” (DPOA) issued by her health care clinic, appointing Shoemaker as her agent for health care decisions “when she was unable to make decisions or communicate her wishes.” The DPOA was to become effective when one physician determined that Collins was incapacitated.

Included in the DPOA was the power of the agent to “carry out [Collins’] wishes regarding autopsy and organ donation, and decide what should be done with her [Collins’] body.

After executing the DPOA, Collins was involved in an automobile accident and died instantly. Shoemaker, believing she had authority under the DPOA, sought to have Collins’ remains cremated. However, Collins’ children, who were not appointed as agents under the DPOA, wanted Collins to be buried in a family plot. The children filed a Temporary Restraining Order, Preliminary Injunction and Permanent Injunction to prohibit Shoemaker from cremating Collins’ body and disposing of the ashes.

At trial, the children argued that Shoemaker never became Collins’ attorney-in-fact under the DPOA because Collins never became incapacitated before her death and because no physician had ever certified her as incapacitated. Shoemaker, however, argued that a physician’s certification would not be required with respect to the disposition of the body because such a requirement would be contrary to Missouri statutes.

The trial court held that the DPOA was effective and gave right of sepulcher over Collins’ body to Shoemaker. While not elaborating on its reasoning, the court did comment that “a coroner saying a person’s dead probably takes place of that” — “that” being a physician’s certification as to a person’s being incapacitated.

The appeals court, however, had a different view. Reasoning that the language in the DPOA should be strictly construed, it stated that “the clear, unambiguous language of the DPOA executed by Collins, however, expressly provides that none of its provisions become effective until the physician certification requirement is satisfied.” Collins had not, before death, been certified by a physician as being incapacitated as required by the DPOA. The court went on to state that “Collins could have, without violating any statute, executed a power of attorney granting the right of sepulcher to Shoemaker without the inclusion of that [a physician’s certification of incapacity], or any other, condition precedent for the conveyance of that right.”

As a result of the Collins decision, the conditions precedent to an agent being authorized to act on behalf of the principal, such as a physician’s certification to incapacity, must occur before the agent will be granted the right of sepulcher. Therefore, as many Health Care Durable Powers of Attorney (HCDPOAs) become effective only upon certification by one or two physicians that the principal is incapacitated, the principal must consider that unless he or she is certified incapacitated before death, the HCDPOA will be ineffective with respect to right of sepulcher, and the hierarchy in the statute will govern.

While many agents appointed in a durable power of attorney or health care durable power of attorney may be “next of kin,” meaning that they would nonetheless be the one making the decision, in some instances that may not be the case.

If you have previously executed a durable power of attorney or health care durable power of attorney that contains provisions regarding the disposition of your body or donation of organs, it is recommended that you review the provisions to make sure the document will be effective to carry out your wishes upon your death.

The complete Collins decision may be found here.