Conflicts over Cremation

Updated: Jul 17

This column first appeared in the San Antonio Express-News and other Hearst newspapers on June 15, 2020.


Dear Mr. Premack: My parents are both in their early 90’s and have mild dementia. I am the only child and caretaker, and they still live in their own home. Many years ago, they met with their estate planning attorney to set up a Living Trust, Wills, Durable Powers of Attorney, and Advance Medical Directives. They also set up prepaid cremation plans with a local funeral home. As their Agent, I’ve been following up to be sure everything is organized the way they directed. The funeral home strongly suggested that I have a document they called Appointment of Agent for Funeral. Since I am already their Agent, is that something I need? – KR

Your parents have done remarkably thorough estate planning and deserve a hug for their foresight. If only more people would think to plan ahead, make provisions for possible disability, for medical care, for the funerals, and for their family inheritance!

Now, however, the funeral home is suggesting another legal document. It is formally called an Appointment of Agent for Disposition of Remains. In it, each parent will declare in a legally binding manner what their basic instructions are for a funeral (like cremation) and who has legal authority to carry out those instructions upon their deaths.

The funeral home’s suggestion probably grows from the legal requirement that any cremation be preceded by a signed Authorization for Cremation. The Authorization can be signed by the Agent under the Appointment of Agent for disposition of Remains. But if there is no Authorization document, the law allows the Authorization to be signed by the following list of people:

First, but the surviving spouse. If there is no surviving spouse, then by any adult child of the decedent. If there are no adult children but the decedent has surviving parents, those parents take responsibility. If there are no parents, a sibling of the decedent may take responsibility. If there are no siblings, the Executor named in the Will must step in, and if there is no Executor then any adult kin in the order in which they would have the right to inherit from the decedent.

Consequently, having a person sign an Appointment of Agent for Disposition of Remains makes the funeral home’s job much easier. They don’t have to search for the appropriate person who is authorized. They don’t need a family tree to decide if they are talking to the correct legally authorized person. This is especially useful when there is a conflict in the family.

For instance, what if Don – who is a widower – dies leaving three adult children. He did not sign an Appointment of Agent but did prearrange a cremation. His two oldest children are in complete accord, but his youngest has religious objections to cremation and threatens everyone with a lawsuit if Don’s remains are cremated. This freezes the family and the funeral home, at least while they ask their lawyers what actual risk they face from the threat.

If Don had signed an Appointment of Agent, there would be no legal doubt. The person he named in the Appointment would be legally empowered to sign the Authorization for Cremation. The threat from the youngest child would be meaningless, and Don’s instructions and the chain of command he established would be legally effective.

Hence, if there is any possibility of family conflict over future cremation (or other funeral instructions) it is wise to have your Estate Planning attorney prepare an Appointment of Agent for Disposition of Remains. For you as an only child, there should be no possibility of conflict and hence no need for the document.

Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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