A Missouri Court recently ruled in In the Estate of Betty Jean Collins v. Tina Shoemaker (Mo. App. W.D. #75448, August 6, 2013) that a person who had died was not “incapacitated” for purposes of a Health Care Power of Attorney (HCPOA). The court decided that the right of sepulcher expressly granted by Collins in her HCPOA to her great-niece did not ever become effective so that, on the death of Collins, her great-niece as her health care attorney in fact had no power to carry out Collins’ wishes to have her body cremated.

The right of sepulcher, that is the right to choose and control the burial, cremation or other disposition of a dead body, is governed by statute in Missouri (R.S. Mo. § 194.119), as it is in many states. This statute sets out the order in which various persons have this right, and grants the right of sepulcher first to “[a]n attorney in fact designated in a durable power of attorney wherein the deceased specifically granted the right of sepulcher over his or her body to such attorney in fact.” However, here, since the court ruled that the HCPOA never became effective, the court determined that the “next of kin”, the next in line with the right of sepulcher under the statute, had this power instead of the great-niece. Collins had no surviving spouse, so that her children, appellants in this case, who wanted her buried and not cremated, had the right of sepulcher.

Here, Collins had prepared her own HCPOA, using a free form available online. The court based its decision that the HCPOA never became effective on language contained in this free HCPOA form that “this durable power of attorney becomes effective when two physicians certify that I am incapacitated . . .” and indicated that if the person wanted to have only one physician make that decision instead of two, she should initial the box. In completing this free form on her own, Collins had initialed this box authorizing the certification to be done by one physician rather than two.

Collins’ children argued that, by checking the box for only one physician to certify incapacity, the HCPOA was not effective at all unless or until a physician certified Collins’ incapacity. The great niece argued that death was the ultimate incapacity and that it did not require a physician to so certify. While the lower court agreed with the great niece, the appeals court agreed with the children that the death certificate signed by the coroner, who was not a physician, did not meet the threshold condition in the HCPOA for the great niece to have any authority to exercise the right of sepulcher. In so holding, the court distinguished the language of the health care power of attorney statute (R.S. Mo. § 404.825) requiring physician certification before an attorney in fact could commence making health care decisions from the language in Collins’ form HCPOA that “expressly provides that none of its provisions become effective until the physician certification requirement is satisfied.” The HCPOA simply used the wrong word in relation to the power to act, resulting in the court finding that Collins’ HCPOA was never in effect because the certification of the one physician was a condition precedent to its ever becoming effective.

Given this court’s decision, it is imperative that the HCPOA be very clear on this point. While most of our clients want to limit the ability of others to make health care decisions for them, the HCPOA should only refer to the certification by a physician as commencing the power to act on lifetime health care decisions, and that the power of the attorney in fact appointed under the HCPOA to make decisions that are made after death, such as consent to an autopsy, anatomical gifts and the right of sepulcher, automatically commence no later than death. You should consider having your estate planning attorney review your existing HCPOA (if you have one) in light of this new decision or, if you don’t already have a HCPOA, make sure your estate planning attorney is aware of this decision when drafting your new HCPOA.