Few decisions could be more personal than the disposition of your remains upon your passing. Nevertheless, many estate plans fail to address these highly emotional issues. Estate planning is one of the best ways to spare your family the emotional turmoil of making these decisions without your guidance. A failure to address these issues in your estate plan may also give rise to a dispute due to ambiguity in your estate planning documents.
Durable Power of Attorney
A Durable Power of Attorney for Health Care Decisions (a “DPOA”) enables you (the “principal”) to provide instructions to a third party(the “agent”) regarding crucial decisions when you are incapacitated and no longer able to manage your health care decisions without assistance. Properly executed DPOAs will authorize your agent to provide assistance without having to resort to filing for guardianship proceedings in the Clark County District Court.
The scope of the agent’s authority
DPOAs contain a general statement of authority which provides that in the event that the principal is incapable of giving informed consent with respect to health care decisions, the agent is granted full power and authority to make health care decisions for the principal before or after death. A DPOA is treated as a contract between the principal and the agent and upon the death of the principal, the DPOA is terminated. However, the agent is specifically authorized to make decisions relating to the principal’s healthcare decisions after death; however, the statutory DPOA does not elaborate on the types of procedures this could relate to.
Post-death health care decisions
These types of decisions could include the right to authorize an autopsy, donate body parts or to direct disposition of your remains. The problem is that this language may be in contradiction with other portions of the Nevada Revised Statutes. For example NRS 451.024 provides, in pertinent part, that the following persons, in order of priority, may order the burial or cremation of human remains: (a) a person designated as the person with authority to order the burial or cremation of the human remains of the decedent in a legally valid document or in an affidavit; (b) the spouse of the decedent; (c) an adult son or daughter of the decedent; (d) either parent of the decedent; (e) an adult brother or sister of the decedent; (f) a grandparent of the decedent; or (g) a guardian of the person of the decedent at the time of death.
Last Will and Testament
Most people are surprised to learn that the statute does not specifically identify a personal representative nominated in a Last Will and Testament. However, if the will specifically authorizes the personal representative to make funeral arrangements, arrange for cremation, and/or donation of body parts, then the personal representative would be first in priority and able to make these arrangements. As a result, your will should always address these issues to eliminate any confusion.
An unresolved question
The problem remains as to whether these issues could be addressed by the healthcare agent prior to your passing in the event you do not have a will or if the will does not address these considerations. Subsection 9 of NRS 451.024 provides that a person 18 years of age or older wishing to authorize another person to order the burial or cremation of his human remains in the event of the person’s death may include such an authorization in a validly executed will or durable power of attorney or may execute an affidavit before a notary public. The subsection then goes on to set forth the content that should be included in the affidavit. This language seems to suggest that the agent in a DPOA could arrange for the disposition of the remains if specifically authorized. Once again, in light of this ambiguity it’s highly recommended that your desires regarding the disposition of your remains be addressed in your Last Will and Testament.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.