Who Has the Authority to Direct the Method of Burial or Cremation?

The ability to control the disposition of bodily remains after a person’s death (including cremation and burial) is something that should not be a bone of contention between family members. Once upon a time, Georgia law provided that the “next of kin” had the power to decide what would be done. That might become controversial only if family members had a difference of opinion. In this day and age of blended families, after divorces and remarriages, a family dispute is a real possibility.

The case in Oklahoma of Estate of Foresee, 2020 OK 88 (October 13, 2020) illustrates what can happen. Fortunately, as you will see, that does not have to happen to people living in Georgia.

Tom Foresee was married for 39 years and at the end of his life suffered from ALS (Lou Gehrig's Disease). It is possible that the effects of that disease was one of the reasons that his wife filed for divorce in 2019. As one might expect after a divorce was commenced, when Tom Foresee prepared his last will and testament he named two of his children as executors of his will and not his wife. He died on January 11, 2020, presumably before the divorce was finalized.

The two children and his wife got into a dispute over how to dispose of his body. The children, as executors of his will, filed a petition in probate court, which was granted. A few days later the wife filed an objection, which was denied.

The wife appealed to the Supreme Court of Oklahoma citing a conflict between the provisions of the will directing the executors to pay for the expenses of burial and a state statute that provided that a person could assign the right to direct the manner in which his body shall be disposed of after death (in this case to her).

The state supreme court sided with the executors and gave them priority because the court did not want to separate the authority to make the decision from the responsibility for paying the cost of that decision.

That sort of fight should not happen in Georgia because a statute, O.C.G.A. § 31-21-7, establishes the priority for disposing of remains. The health care agent under an Advance Directive for Healthcare has first priority. Someone named in a “pre-need affidavit” (as set out in the statute) has the second priority. The surviving spouse has third priority. The executor of the decedent’s estate is in ninth place.

I believe that a well-drafted Advance Directive for Healthcare should explicitly refer to the authority for the Agent to direct the disposition of bodily remains after the death of the person making that directive. That way any family member who wanted to object would be confronted with the explicit provision in the Advance Directive authorizing the Agent to control the arrangements. There would be no need for people to be pulling out a state statute.

The provision could state, “My Agent may direct the disposition of my remains, and the authority granted by this Advance Directive for Health Care shall specifically extend beyond my death to enable my Agent to perform this duty.” The Advance Directive provides a space for special instructions and I often have clients specify whether or not organ donations are to be made and whether a burial or a cremation shall take place.

Most Advance Directives for Health Care are prepared when a person is making his or her Last Will and Testament. That Advance Directive and a General Power of Attorney are usually “piggy-backed” on to the project of preparing the will. Surveys show that only one-third of people who need wills go to the effort of having them prepared by a competent attorney. (Don’t get me started on the mess created by most “home-made” wills.)

The fight seen in the Estate of Foresee is possible in Georgia, but unlikely when people take advantage of the Advance Directive, especially when they include in the directive some specific instructions on the disposition of bodily remains.