When a death occurs the executor or Power of Attorney usually is the one that steps forward to make arrangements for the funeral arrangements. However, Power of Attorney stops at the time of death and the Executor isn't appointed until weeks later when the Will has been filed with the county.
Currently in the Ohio Revised Code there is a priority list of who may authorize cremation, burials or other dispositions. The list, which is spelled out in Section 2108.81 of the Revised Code, establishes the following order of priority:
(1)The representative appointed by the decedent to have the right of disposition.
(2)The decedent's surviving spouse.
(3)The decedent's surviving child or children.
(4)The decedent's surviving parent or parents.
(5)The decedent's surviving sibling or siblings.
(6)The decedent's surviving grandparent or grandparents.
(7)The lineal descendants of the decedent's grandparents as spelled out in Section 2105.06 of the Revised Code.
(8)The decedent's personal guardian at the time of death.
(9)Any person willing to assume the right of disposition, including the personal representative of the estate or the licensed funeral director with custody of the body, after attesting in writing and good faith that they could not locate any of the persons in the above priority list.
In the event that several individuals of the same class cannot agree on funeral or disposition arrangements, the law permits the majority to control. Additionally, if an individual cannot be located, the majority of those who are available will control. For example, if a widow dies with five adult children, two of whom want cremation, one of whom wants burial and two of whom cannot be located, the children who opted for cremation would prevail.
If there is not a majority present to resolve a dispute, any party, including the funeral director, may petition the probate court to decide the issue. The probate court is given five factors in the statute to consider when rendering a decision as to who will control the disposition.
Loss of Right of Disposition. In order to exercise the right of disposition, an individual must be 18 years or older and mentally competent. Persons who have been appointed as a representative or who hold the right of disposition because of their relationship with the decedent will lose that right in the following situations:
*The person dies or is declared mentally incompetent by the probate court.
*The person resigns or declines to exercise the right of disposition.
*The person refuses to exercise the right within two days after notification of the decedent's death.
*The person cannot be located with reasonable effort.
*The person is charged with the murder, aggravated murder or voluntary manslaughter of the decedent.
*The person is charged with an act of domestic violence and it is alleged that the violence resulted or contributed to the decedent's death.
*The person is the spouse of the decedent and a petition for divorce has been filed and has not been dismissed at the time of death.
*The person is the spouse of the decedent and the probate court determines that the decedent and the spouse were "estranged" at the time of death.
Protections for Funeral Home. Primarily through the efforts of OFDA, HB 426 provides an extensive array of protections for funeral homes, cemeteries and crematories against lawsuits and claims by disgruntled family members. As long as employees of funeral homes, cemeteries or crematories are acting in good faith, they may rely upon statements made to them by persons claiming to have the right of disposition. Moreover, the statute provides immunity against lawsuits in the event that reliance was misplaced. For example, if a person misrepresents that they have the right of disposition, the funeral home will not be responsible for relying upon that misrepresentation unless it can be shown that the funeral director had reason to know that the misrepresentation was false.
The law also provides that a funeral director who is aware of a dispute regarding the right of disposition may refuse to accept the remains or to complete the funeral or disposition until the funeral director receives a court order or a written authorization from the person or persons who have the right of disposition. During a dispute, the statute authorizes the funeral director to embalm or refrigerate the remains in order to preserve them and to add those costs to the funeral bill. Moreover, if the funeral home must seek the intervention of the probate court, the funeral home may add its legal fees and court costs to the funeral bill.
In order to avail themselves of the protections afforded by HB 426, it is important that funeral homes document the claims of a person who represents themselves as the holder of the right of disposition. The most effective way to do this is to have the person arranging the funeral sign a Claim of Authority to Carry Out Disposition form which is available through OFDA. The new form tracks the wording of HB 426 and will help to demonstrate that funeral homes have acted in good faith in relying upon claims made by family members.
Funeral Costs. Another important lobbying victory for OFDA resulted in two important changes to Ohio law regarding funeral costs. First, HB 426 now establishes that a person who holds the right of disposition and purchases goods and services in exercising that right will be responsible for those costs. This means that a person who holds the right of disposition, but is unwilling or unable to pay the costs of the funeral and disposition, loses that right. As a result, funeral homes will not be required to take directions from relatives unless they are willing and able to pay for the funeral.