Enforcing Your Final Wishes
1. Your decision: Burial or Cremation
- One of the most difficult decisions an individual may face is whether to be buried or cremated after death. In many instances, this decision is left up to a loved one. Consider the relief a family receives when one creates the appropriate estate planning documents and makes the decision for burial or cremation in advance. Accordingly, it is important to consult with a qualified estate planning attorney concerning your decisions for burial or cremation and to discuss the planning options available.
2. Cremation Directives
- Planning for cremation is relatively straightforward when an estate planning attorney provides a person with the option of using a Cremation Directive. Also, directives for cremation should be included in a last Will and Testament.
- A cremation directive can be used to indicate that a person has chosen in advance not only to be cremated, but also the names of those persons who will receive the cremains or how they are to be handled. In Arizona, a funeral home will be legally obligated to honor a Cremation Directive after it is presented to the funeral director. (see A.R.S. 36-831.01(A))
3. Health Care Powers of Attorney
- Any comprehensive estate plan will invariably include a Health Care Power of Attorney which authorizes an Agent to make medical decisions for the Principal during a time of incapacity.
In some states such as Arizona, the Agent’s authority under a Health Care Power of Attorney continues regarding the power to make a decision as to burial or cremation. And, a funeral home that fails to honor the Agent’s request may subject themselves to potential liability.
4. Irrevocable Funeral Trusts
- In addition to a Health Care Power of Attorney and Cremation Directive, an estate planning attorney may suggest the use of an Irrevocable Funeral Trust.
- In those instances where a person wishes to be buried, the estate planning attorney can either prepare an Irrevocable Funeral Trust or assign an already existing insurance policy into this type of trust managed for the most part by corporate trustees. The benefits of such an arrangement will be that the assets will bypass probate, and in some jurisdictions, assets held in an Irrevocable Funeral Trust can be considered “exempt assets” under state specific Medicaid rules up to a certain limit.
5. Burial Instructions
- Finally, based on one’s personal convictions or religious beliefs, certain provisions in a revocable living trust or last Will and Testament can include: (1) whether a specific type of service or memorial should take place, (2) what should occur at the service, and (3) whether certain religious prayers including masses should be said at defined periods of time.
For more information or if you have questions about having your final wishes enforced in Arizona, please contact the Estate Planning Attorneys at Mesch Clark Rothschild at (520) 624-8886 to make an appointment.