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Final Memories - Precious Moments

Disputes amongst family-members and loved ones are always gut-wrenching, but especially so when they emerge in the literal moments, hours, or few days after the passing of a beloved.

Unfortunately, these disputes are all too frequent -- and at ALF, we have been involved in several such disputes already this calendar year. Family members oftentimes do not realize that there are specific laws governing who has priority to take possession of a person's remains, give instructions concerning cremation or burial and other preparations, and control the memorial service (at least, the one where the person's remains may lie in repose).

Section 130A-420(a) of the North Carolina General Statutes ("Authority to dispose of body or body parts") provides the governing statute, and gives priority as follows:

(1) as provided in a preneed funeral contract or cremation authorization form;

(2) to the nominated health-care agent under a valid HCPOA (even if such agent's authority to act was suspended pursuant to a guardianship** - see below);

(3) pursuant to a written will; and,

(4) pursuant to another written statement attested by two adults.

Where there is no person qualifying above, Section 130A-420(b) provides the following order of priority based upon degree of kinship: first to a surviving spouse, then a majority of adult children, then surviving parents, then majority of adult siblings, and so on. Where no next-of-kin is available a "person who has exhibited special care and concern for the decedent and is willing and able to make decisions about the disposition" may so qualify.

Such disputes are incredibly heart wrenching -- and, speaking frankly, are some of the most difficult and sensitive matters we handle. But helping to ensure that a person's remains are properly honored, and that the rightful family members are able to control the memorial service for their loved ones, can be incredibly rewarding. (Would you believe that in cases where a predatory outsider has influenced an elderly person to rewrite their estate-plan, such person probably obtained HCPOA status as well and we have seen them use purported control of the body and funeral as leverage to try and protect their ill-gotten financial gains?)

Time is, of course, of the essence in these matters. While we always hope that they can be avoided or worked out amicably among family members, do not hesitate to contact us or another fiduciary litigation firm - even before the passing of a loved one - so that we can be prepared to assist.

** For the lawyers and nerds among us: How, you ask, does a HCPOA-agent have authority to act after death? Doesn't any agency authority cease at death? And doesn't a guardian of the person revoke the HCPOA for good (as is the case with a financial POA)?

Here's the deal:

While a guardian of the estate (GOE) customarily revokes a power-of-attorney instrument entirely upon the GOE's appointment, North Carolina law does not provide for the revocation of a HCPOA (unless one is declared null and void, ab initio, as in the case of one obtained by fraud or undue influence). Rather, a guardian of the person (GOP) may move the Court to suspend the authority of the health-care agent to act (so the health-care agent does not interfere with the GOP's directives) -- rather than to revoke the HCPOA instrument.

But why does that change when the principal/ward passes away? Because North Carolina case law makes clear that a guardianship file abates entirely upon the death of the ward, and any court orders that may have been in place instantly dissolve into the ether. With the court order suspending the health-care agent's authority to act dissolved, such person is restored to their place of agency and authority.

But doesn't any agency authority end the moment a principal passes away? Yes. This is why, for instance, a financial power-of-attorney cannot act with such document even a moment after the principal is declared deceased. But North Carolina law makes a special provision for health-care agents, and statutorily declares that the authority of a health-care agent "to exercise any and all rights the principal may have with respect to anatomical gifts, the authorization of an autopsy, and the disposition of remains" even after the principal passes away. See NCGS 32A-19(b). A health-care agent may even incur "reasonable costs related to exercising those powers" and expect reimbursement from the decedent's estate.

So, with 32A-19(b) extending the authority of a health-care agent to act, even after death, for these purposes ... and with any court order entered into the guardianship of no effect after the ward's death ... in such cases, a nominated health-care agent under the last HCPOA that has not been declared null and void, reenters the picture with full authority to control the disposition of remains of a decedent.

What's the practice pointer? If a "bad actor" is the health-care agent, your job as a guardianship attorney may not be complete when a GOP is appointed. If there is fear or concern that the health-care agent may attempt to control the disposition of remains, you may want to discuss with your client whether to bring a separate proceeding rendering the health-care power-of-attorney document nominating such "bad actor" null and void, ab initio, on the grounds of undue influence.

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