All right, I gripe about the legislature as much as the next guy. On the other hand, I am also happy to give credit where credit is due. And this last session, the legislature passed a bill which is really helpful.
Actually it passed two bills I like. The smaller one involves revisions to the statutory form power of attorney. It’s nothing dramatic, but there were several oddities in the old format which grated on me. But now, no more will people have to figure out, from the instructions, that if they want a particular power they need to leave it blank instead of checking the box. And no more will they have to use the word “disabled” when what they are actually describing is “incapacitated.” I have had more than a few clients who were physically disabled but mentally competent, who found the old version offensive.
But the other bill is even more important. There is now a form called a “Disposition Directive.” It allows you to name an agent to deal with the funeral home.
Why is that a big deal? Until now, the funeral home would generally deal with the “next of kin.” In some cases that was easy enough. For instance if the spouse survived and was competent, or if there was only one child or one sibling to deal with, no problem. But in other cases, next of kin could get quite complicated.
For example, I saw a case in which a young adult had died. The next of kin was her parents. The problem was that they had been through an acrimonious divorce, and one of them had remained with a particular church (which had strong feelings about funeral and burial arrangements) while the other had left that church. Litigation, ho!
Another case involved an elderly widow with many children. Five of them were telling the funeral director that their mom had wanted to be cremated, and they even had a letter from her asking to be cremated. But the funeral home would not cremate until they tracked down the one missing child who had left the family years before. The problem was that no one knew where he was.
Those were rare and unusual situations, but the “next of kin” rule can cause significant delays in other situations as well. Consider a single person who dies, and the next of kin are four different children who live in different cities around the country. It may be necessary for each one of them to sign various documents, which can cause issues.
With the new Disposition Directive, you fill out a form while you are alive and sign it in front of a notary, specifying who is authorized to deal with the disposition of your remains when you are gone. You can even name backup agents in case the first one cannot do it. You sign it in front of a notary and it has the force of law.
Before the new Directive, you did have some options. However, they generally involved dealing with a funeral home while you were alive, which was a lot more involved than most people wanted to get. Now with a relatively simple form, you can easily bypass a potential area for litigation.
In my view the Disposition Directive should be an essential element of every estate plan, right along with the will, durable power of attorney and advance health care directive.
Kenneth Kirk is an attorney and estate planner in Anchorage. This article should not be taken as legal advice; for specific legal advice you should consult an attorney.
