Wednesday, February 20, 2013

Not All Funeral Homes Are Created Equal

You thought you had taken care of everything. Your family would not be troubled with a cremation decision at the time of your death.  After all, you completely paid for and signed a pre-need cremation contract with a reputable funeral home.

Think again.  Local funeral homes often add a post-death extra requirement.  Spouses won't have a problem, but if another family member is trying to set up the paid-for cremation at the time of death, many funeral homes insist that a multi-page Authorization for Cremation be signed.  The Authorization has the signer indemnify, defend, and hold harmless the funeral home and crematory (paying their legal fees) if they are caught up in a lawsuit over the disposition.

Sometimes the next of kin does not approve of cremation, which may be why you signed the contract beforehand.  What happens in the case where some kin won't sign the Authorization for Cremation?  One funeral establishment said a single relative's signing won't work if others object and suggested that the matter go to court.  Who is going to pay for that?  Also, some kin cannot be located.  One decedent's body had to remain chilled for 13 days while five adult children, who lived all across the country, were located and persuaded to sign.  Another family was pressured into securing notarized signatures from two elderly siblings who are afflicted with Parkinson's and Alzheimer's.  These elderly siblings were forced to go out in a snowstorm to sign.  Why aren't your wishes simply being honored? You paid the funeral home and signed a contract with explicit details regarding your wishes.

What does the law say?  Everyone agrees that your agent, under a power of attorney, does not control your remains since a power of attorney expires upon death.  An Executor under your Will does not control your remains. They only control your estate property.  Who controls your remains?  There is a form in a Texas statute which allows an Appointment of Agent to Control Disposition of Remains.  Of course this agent also assumes financial responsibility for the handling, to the extent it is not already paid for, in addition to other duties.

This same Texas law also provides that neither permission of next of kin nor an agent under the Appointment of Agent form is needed if you have already provided written directions for the disposition.  This includes cremation in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by you.  In 2005, the Texas Attorney General wrote that a funeral establishment need not obtain "a cremation authorization form" signed by an "authorizing agent" when a purchaser of a prepaid funeral contract has previously specified disposition of the purchaser's remains by cremation ..." The decedent had already "authorized."

Question settled?  No. The 2009 Texas Legislature was persuaded to add a new section stating that the cremation authorization form is not required if (1) the decedent left proper written cremation directions and (2) the authorizing agent refuses to sign the form.  An attorney for a local funeral home interprets this to mean that there has to be both a prepaid cremation plan and a cremation authorization form signed by kin or an agent after death. The words arguably do not say this, but the attorney claims that almost all crematories require the forms.  Oddly enough, the added law allows a crematory to cremate without the form if (1) cremation costs are paid and (2) the authorizing agent provides a positive written identification of the human remains.

Why do funeral establishments add requirements which the law does not?  The friends and/or family are in a weak bargaining position; burdened by grief, pressured by time, reluctant to argue in court while the funeral home has the body.  A suit on the contract could be considered or a transfer could be made to a cooperative funeral home, but these are very inconvenient options. Some funeral homes and crematories are concerned about being involved in a lawsuit, but the law provides that a funeral home or related entity shall not be liable for carrying out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent's remains.  If they cannot be liable for carrying out your wishes then they have no reason to require your agent or kin to sign their form and agree to indemnify them.

Should you find yourself in such a predicament and persuasion does not work, the consumer has the recourse of filing a complaint with the Texas Department of Banking at  Also, before you buy a prepaid cremation plan, or even if you already have one, consider talking with your lawyer about how to handle this situation.