Articles

PLANNING FOR THE DISPOSITION OF REMAINS AFTER DEATH

Although the decision regarding the disposition of one’s remains is personal and private, it is beneficial for an individual to express his or her wishes before his or her death.  Courts have generally supported the right of an individual to direct the disposition of his or her remains after death.  If the decedent has left no clear instructions concerning the disposition of his or her remains, courts generally look to the surviving spouse, and then to the next of kin, for instruction.

There are several ways in which one may plan for the disposition of his or her remains after death.  For example, an individual might consider making an anatomical gift during his or her lifetime.  An individual also might consider prearranging his or her funeral.  Planning prior to death allows an individual to ensure that his or her body is disposed of according to his or her preferences, and also spares family members the emotional burden associated with making such decisions. 

BURIAL

Whether an individual chooses to be buried or cremated is a personal decision that is often based on the religious, spiritual, or environmental beliefs of such individual.  A burial provides the family and friends of the decedent with a site to visit after the individual has passed away, which can be a source of comfort for many.  There are a variety of decisions to make when an individual chooses to be buried.  For instance, an individual may choose to be buried in a traditional cemetery or a memorial park or to be interred in a community or private mausoleum.  An individual may also prefer to be buried in a particular section of a cemetery or memorial park.

Moreover, there are some little‑known costs associated with being buried in a cemetery which an individual might consider when making a choice between post‑mortem options, such as fees for permanent record-keeping, opening the grave, closing the grave, and maintenance of the grass at the burial site.  In addition, many cemeteries require individuals to purchase burial vaults or grave liners.

CREMATION

For many individuals, cremation may be the preferable option.  In some cases, it is also a more cost‑effective option because it can potentially eliminate burial expenses, such as the purchase of a casket.  The funeral or memorial service for a cremation may be no different than for a burial because cremation often occurs after the viewing or funeral service.  Alternatively, the memorial service may occur after the cremation or at the time of the disposition of the cremated remains, also known as cremains.

After the cremation takes place, there are several options for the disposition of the cremains.  For instance, cremains can be taken to a cemetery to be either interred in a cemetery plot or placed in a columbarium (a structure located within a mausoleum or chapel that has small niches designed to hold urns).   Alternatively, cremains can be scattered on private or public property, depending upon the wishes of the decedent, as well as local regulations. 

REGULATION OF THE FUNERAL SERVICES INDUSTRY

In the Commonwealth of Virginia, the funeral services industry is regulated by statute.  Any person engaging in the practice of funeral services, engaging in the business of pre-need funeral planning, operating a funeral establishment, or acting as a funeral director or embalmer is required to obtain a license from the Board of Funeral Directors and Embalmers.  In addition, the funeral establishment itself is required to be licensed. 

Those licensed in the practice of funeral services are required to provide individuals inquiring about funeral arrangements a general price list at the beginning of such discussions.  Such list must set forth in a clear and conspicuous manner the charges for various items, such as the casket, the vault, embalming, and transportation.  In addition, individuals who are contracting for funeral services are required to be provided a statement of all anticipated cash advances and expenditures for services requested of the funeral service provider. 

The funeral services industry is also regulated by the Federal Trade Commission which seeks to protect consumers who are often making expensive decisions with regard to funeral arrangements while grieving for their loved ones.

BODY, ORGAN, AND TISSUE DONATION

Some individuals may wish to make an anatomical gift of their body, organs, or tissue.  An anatomical gift is a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation, therapy, research, or education.  Anatomical gifts may be made by the donor, or one authorized to make the gift, before or after the death of the donor.

Anatomical Gifts Before Death

There are several ways to make an anatomical gift before the death of the donor.  The donor can make the gift by authorizing a statement or symbol to be imprinted on his or her driver’s license or identification card indicating that the donor has made an anatomical gift.  The donor can also make an anatomical gift in his or her Last Will and Testament (the “Will”); however, it should be noted that the Will is often not read until after the family has made arrangements for the disposition of the remains.  If the donor suffers a terminal injury or illness, he or she also can make an anatomical gift during the period thereof, by simply communicating the gift, in any manner, to two adults.  Some additional ways in which the donor may make an anatomical gift include using a donor card or other record signed by the donor or a person authorized to act for the donor, by authorizing the gift to be included on a donor registry, or by setting forth the gift in a written advance medical directive.

Amending or Revoking an Anatomical Gift Before Death

Just as there are several ways to make an anatomical gift before death, there are several ways to amend or revoke such gift as well.  The gift can be amended or revoked by a record signed by the donor or other person authorized to act for the donor.  The gift can also be amended or revoked expressly or implicitly by a later-executed document of gift or by destroying or canceling the document of gift with the intent to revoke the gift.  If the gift was made by Will, the donor can amend or revoke the anatomical gift in the same manner in which a Will is amended or revoked, or by executing a subsequent record.  A donor may also amend or revoke the anatomical gift during his or her terminal injury or illness by a communication, in any form, addressed to two adults, one of whom must be a disinterested witness if the gift was not initially made by Will.  An anatomical gift which has been made through the Department of Motor Vehicles and which is indicated on the driver’s license of the donor will not be invalidated by the subsequent revocation, suspension, expiration, or cancellation of the driver’s license.

If the donor makes an anatomical gift or amends his or her anatomical gift, all persons other than the donor are prohibited from making, revoking, or amending such anatomical gift, unless the donor expressly indicates otherwise.

Refusal to Make an Anatomical Gift

In the Commonwealth of Virginia, an individual may refuse to make an anatomical gift by signing a record evidencing such refusal or communicating such refusal, by any means, to at least two adults, one of whom must be a disinterested witness, during the individual’s terminal injury or illness.  An individual can also make a refusal in his or her Will; however, as previously mentioned, the Will is often not read until after the family has made arrangements for the disposition of the remains. 

A refusal to make an anatomical gift may be amended or revoked in the same manner in which the individual makes the refusal, by the subsequent making of an anatomical gift that is inconsistent with the refusal, or by the destruction or cancellation of the document used to make the refusal with the intent to revoke the refusal. 

It is important to note that the revocation of a previous anatomical gift is not the equivalent of a refusal, and does not prohibit the making of future anatomical gifts by the donor or other person authorized to act for the donor.  In addition, an anatomical gift of part of the donor’s body is not the equivalent of a refusal to make anatomical gifts of other parts of the donor’s body.     

Anatomical Gifts After Death

In the Commonwealth of Virginia, statutory law provides a procedure for making an anatomical gift of the body of the decedent or part of the body of the decedent after death, and a list of individuals that are able to make such gift.  The individuals are grouped into ten classes in order of priority, and a member of a class cannot make an anatomical gift if a member of a prior class is reasonably available to make an anatomical gift or object to the making of an anatomical gift.  If there is more than one member in a class, an anatomical gift may be made by any member of the class unless that member (or a person to which the gift may pass) knows of an objection by another member of the same class.  If an objection is known, the gift may be made only by those members who constitute at least fifty percent of the class who are reasonably available.    

An anatomical gift can be made after the decedent’s death by a document of gift signed by the person making the gift, or by the oral communication of the person making the gift, which communication must either be electronically recorded or contemporaneously reduced to a record and signed by the person receiving the oral communication.  The gift may be revoked by an oral communication or in a record by any member of a prior class who becomes reasonably available (or by a majority of the members of the prior class who become reasonably available if more than one person from a prior class becomes reasonably available).  However, a revocation is only effective if the procurement organization, transplant hospital, physician, or technician knows about the revocation before an incision has been made or invasive procedures have begun.

Virginia Department of Health’s State Anatomical Program

Individuals may make a donation directly to the Virginia Department of Health’s State Anatomical Program by completing a donor form provided by the program, as well as a Declaration of Intent form.  This is the single program in the Commonwealth of Virginia that is authorized to receive body donations for scientific study.  The program only accepts donations of intact bodies.  Such donations are used to teach anatomy and surgery to students at Virginia state medical schools, colleges, universities, and research facilities.  Upon the donor’s death, the person who is designated to dispose of the individual’s remains will contact the program to make the appropriate arrangements for delivery of the body to a designated facility.  An individual may cancel his or her donation to the program, but such cancellation does require written notice.

It should be observed that in the event an individual donates his or her body to the State Anatomical Program, a funeral or memorial service with the body present will not be possible.  After the program no longer requires use of the body, the benefiting school or research facility arranges for the disposition of the remains, which will either be buried or cremated.  It is possible to have the cremated remains returned to family members.

Virginia Donor Registry

The Virginia Transplant Council maintains a registry of individuals who have indicated a willingness to donate organs in the Commonwealth of Virginia.  An individual can register at their online donor registry website or by sending in a paper application.  The information of an individual who signed up to be an organ donor through the Virginia Department of Motor Vehicles is automatically transferred to the registry website.  The information of the individual on the website can be modified or deleted, in accordance with the wishes of the individual.  However, if an individual signed up to be an organ donor through the Virginia Department of Motor Vehicles, the individual must visit the Department of Motor Vehicles in person in order to remove the donor designation from his or her driver’s license.

© 2010 GANDERSON LAW, P.C.