Share Final Wishes, Consider Who Will Carry Them Out

Written by Jacque Mingle

In estate planning, it’s important to try to anticipate any possible dispute among loved ones, including arguments over funerals, burials, bodies, and cremains. There are laws on the books in Arizona that determine who decides and carries out funeral and burial plans, and you can both specifically designate the decision maker and spell out your individual wishes.

The statutory order for decision making begins with the surviving spouse (unless legally separated or there was a pending petition for divorce or legal separation); then the agent under a health care power of attorney (if specifically given the power under the document); adult child; parent; sibling; adult grandchild; grandparent; any adult who exhibited “special care and concern”; court-appointed guardian; then any other person who has the authority. (A.R.S. § 36-831(A))

If there is more than one person in a category, arrangements may be made by any one of them, unless that person knows another in that category objects.  If that’s the case, a majority in the category who are reasonably available make that determination. (A.R.S. § 36-831(D))

However, other statutes appear to give top priority to anyone specifically designated or the agent in a health-care power of attorney (POA). (A.R.S. §§ 32-1365.01, 36-3221(A))  The authority granted under a POA generally terminates when the principal dies, except for the power to dispose of  remains.

Although it’s rare for the spouse not to be named agent under power of attorney, it happens.  If you name daughter first on the health-care power because she’s a nurse and would be best for making medical decisions, consider whether she would also be best for funeral arrangements.  If not, you may need to revise your POAs.

In terms of stating your final wishes, you can create a document doing just that, and then funeral service providers don’t have to consult anyone before carrying them out, although they’re unlikely to move forward without being paid.

Your statement for wishes may include whether you prefer burial or cremation, the kind of ceremony you would like, specifics on scattering ashes, etc. (A.R.S. § 32-1365.01(A)) (Note: your wishes must be “lawful.”)

Loved ones are almost always grateful for the guidance of specific wishes, and putting them in writing means there is very little likelihood disagreements will surface.  Even in the most agreeable families, having specific wishes alleviates the pressure and stress of trying to guess what the decedent would have wanted. It can avoid family members overspending or feeling guilty when making decisions.

In terms of formalities of wishes, you need to sign the document, along with either a notary or an adult witness.  Your wishes should be honored, unless there are not sufficient assets to cover the costs. (A.R.S. § 32-1365.01(B), (D)) You may wish to consider a pre-paid plan, a special life insurance policy, or simply set aside sufficient funds for this purpose. However, even if you haven’t had a chance to provide a formal legal document, a letter to the family explaining your wishes is much better than nothing.

Although you can keep the document with your Will or Trust, make sure you inform loved ones and your attorney that it exists.  The Will or Trust often isn’t read until after the funeral, and it can be devastating to find out there were specific wishes after it’s too late to put them in place.