Updated: Oct 1, 2020
Since I joined the death care industry and started doing outreach and education, I have started getting a lot of questions. I love that and I try my best to answer honestly or admit it if I don't know the answer.
I realized recently that a group of questions I receive over and over again are some that I still cannot answer very well: How do I prepare legal documents that give instructions for my body and my estate? are there different documents, and if so, which ones do I need?
Disclaimer: I'm not an estate planner, and I can't give you legal advice. All I can do is report my own findings as I prepare my own documents (which I'll admit I haven't even bothered to think about doing until now).
I haven't had to deal with the estate of any of my loved ones, and because I've not prepared my own legal documents, if I died tomorrow, my family in Arizona, who I love but don't want to make decisions for my body unless my partner is unavailable, would instantly have this burden placed upon them.
Why does this matter? I could write an entirely separate blog about this, and maybe I will, but it boils down to these ideas:
In the state of Oregon, when you die, not just anyone can walk in and take control over your body. We have something referred to in funeral home land as "The Step-stairs of Survivorship" and it is a statute that gives the order of who has the right to make those decisions. It starts with your spouse, and if you don't have one, then it goes to your children, then to your parents, etc. You can view the full statute here: ORS 97.130
If you have no family, you become what is known as "indigent" which means that typically, your body stays in the mortuary for a legal waiting period of 10 days before a county official signs off and you are cremated. If you are a qualifying veteran, the funeral home can get you placed in a national cemetery. If not, well, your remains stay with the funeral home until they open their equivalent to a community vault or scattering area (this is documented in permanent files, you're not lost forever).
Many people in these situations have close friends that would love to step in and make decisions for their deceased loved one, but the law prevents this...unless you gave them the legal right to do so before your death.
I get that no one wants to think about their demise and logistics like this are a hassle, but the truth is that you need to make these decisions, regardless of if you have family or not.
If you're like me, and have family that you don't want to make those sorts of decisions for you, but have a partner that you WOULD want to have that ability, you have to act to make sure this happens. If you have complicated or abusive family situations, or no family, you need to figure this out and make a legally valid plan. Because otherwise, if you die in Oregon, they're the first ones to get called if you don't have a legal spouse or kids. They will be the deciding factor and you risk them walking away from the situation (see the indigent concept above in this case), doing something that you really wouldn't want done with your body, and potentially causing additional trauma to your partner(s) and chosen family.
I decided it was time for me to do some research and get some better answers for you folks and myself, because, let's be honest: I need to get my shit together too. That being said, again please keep in mind that I'm not a qualified estate planning professional, each circumstance is different, and while I can help you make arrangements as they pertain to disposition of your body, my professional abilities end there. Please seek out qualified professionals for other planning if you want to go that route, or use the resources you find here to make your own decisions!
1.) Controlling What Happens to Your Future Corpse: The Appointment of Persons Form
This is something that I can give you straight answers about, because I and other morticians help people figure this part out on the regular. It is not uncommon for someone to walk in and say to me:
"Hey, I want to plan for my eventual death, but I don't want my family to know my plan or have any say in this, what can I do?" or-
"My daughter keeps sneaking in to the care facility and getting my husband who has severe dementia to sign over POA to her, can you help me with documents regarding his funeral plans so that she is cut out of the picture?" and more recently-
"My partner and I have been together for 35 years, we don't have plans to be legally married but we want the right to control what happens to each others bodies when one of us dies."
The State of Oregon has a very straightforward document called "Appointment of Agent to Carry Out Disposition" and I have attached it here for example. This is a document that I have someone fill out to specifically appoint someone to make the decisions regarding what happens to their body when they die. Usually this accompanies a pre-funded funeral plan, but it doesn't have to (see the catch at the end of this section though, funding this plan can be critical).
It can simply be filled out and kept in a file at the funeral home but I HIGHLY recommend that you also print this out and keep it wherever you keep your legal documents (with your will, advanced directive, etc.). Heck, put a copy on your refrigerator if you want. Print out additional copies and give one to your appointed person and the backup person you have to list on there.
If no one can find this document when you die, it isn't going to matter that you filled it out. The same is true for your will and any other important estate or documents pertaining to your final wishes.
While this is a document that works in all of Oregon, I can't speak for its validity in other states.
If you end up moving, please check with a local funeral home or attorney to see what their requirements are. Here is some information by state as to who controls your body when you die unless you make other plans.
The catch is that, as per ORS 97.130, the person in charge needs to be able to pay for what you/they want done with your body. If your estate/the appointed cannot pay, the written appointment is no longer valid and the funeral home will have to turn to the next of kin list in that statute. This leads me to the next section...
2.) Some Options for Financial Planning Regarding Your Future Corpse
It is well know that even a simple cremation is expensive, and if the loss happens unexpectedly, the finances may not be there. I know that for myself, I wouldn't have a way to fund the cremation of a loved one if they didn't have a estate or other resources unless I could take care of things via my employing funeral home.
If you can afford it, there are some options for financial planning here.
- You can pre-pay into a plan with a funeral home, effectively opening an account with the National Funeral Trust Service (so if the funeral home can't touch your money and if they close, the National Trust Service still has your funds and you can choose another funeral home to associate the plan with). This is what a lot of folks do and I think it works well. The Trust Service uses a National Bank to keep your money in, and your individual account bears interest over time. Typically funeral homes will lock in the price if you pay for your plan in full, so 20 years from now you won't have to pay more when they inevitably raise their prices. In most cases, you can make monthly payments into this account but the funeral home won't lock in the price until everything is paid off.
The pro of this option is that, as mentioned, you lock in that price with the funeral home of your choice. If you are pretty sure you'll be in the generally area for the rest of your life, it makes sense to do this so that you don't pay more for it later. Funeral homes typically raise their prices yearly, so imagine what a $1,500.00 plan today would inflate to in 20 years. Chances are it's going to go up by 40% at least.
The drawback of this plan is that if you cancel and close the account, or transfer it to a different funeral home, you no longer have a price locked in and it is possible you'll have to pay more at the new funeral home. The flexibility of transferring or closing the account is reassuring to many, but be aware of the repercussions of doing so if you have a locked in price set up.
- Take out a life insurance policy. Making monthly payments into a policy is a good idea for anyone who can, regardless of your plans for your corpse. Generally speaking, life insurance companies will cut a check directly to the funeral home and pay out the rest to the beneficiary you selected when you set up the plan.
In the case of where I work, the funeral home charges a small fee because they perform all of the services needed well in advance of getting that payment, so it's like we are performing services on credit. Generally speaking, the funeral home is going to need to talk to an insurance agent and submit a few documents to them, so make sure you provide the funeral home with the appropriate information about the policy when it's time (or before if you know you're going to use a certain funeral home and maybe even have an unfunded plan set up already).
I can't comment on the drawbacks because I haven't taken out a policy yet, but in my experience as a funeral director working with life insurance companies, this is a pretty easy way to work out the financial details and the insurance company and funeral home do most of the work for you to get it going. The only potential drawback is that the cause of death affects the insurance payout, there are many different companies with different rules, and I know various health conditions can affect your ability to get a policy.
Stay tuned for updates in Part 2 as I explore the world of life insurance!
3.) Pre-Corpse Planning: Advanced Directive (AKA a "Living Will")
An Advanced Directive, or Living Will, is a handy document that is legally recognized in all 50 states (although some states may not honor out-of-state directives). It is primarily concerning critical healthcare decisions (e.g. life support and extraordinary suffering options in the event of a progressive illness or serious accident) and allows you to appoint a Health Care Representative in the event you are unable to make those decisions for yourself.
The cool thing about an advanced directive in Oregon is that you can print it out yourself, fill it out at home, have your chosen Health Care Representative sign it, have a couple of witnesses sign it, and BAM! you're done. You don't have to go to a lawyer for this. Access it here and get started. Maybe make it fun, and invite your death friends over for an Advanced Directive planning party!
Death Over Dinner illustrates a similar concept and can help you set up your own dinner, if the idea of coming together with loved ones to have some straightforward discussions about healthcare and the way we die intrigues you.
You can explicitly state what kind of power you're giving said representative, and if your desires aren't known (meaning they aren't written down on the document), the representative has authority to act in your best interest. Your representative can opt out of this at any time, FYI. The form has sections where you can instruct your health care providers on how to act, and allows you to revoke or adhere to a previously established health care Power of Attorney if you have one.
You can make notes, cross out words, or add other things to be more specific in your wishes. Again, if no one can find this document it doesn't matter that you filled it out, so give a copy to whoever needs it when the time comes, including your chosen health care representative, and keep a copy in a spot where someone can find it (like with your funeral home plan or will).
Having an Advanced Directive filled out, given to appropriate parties, and placed in your house somewhere easily accessible is an excellent start, but most people have multiple variables beyond healthcare to worry about, and a living will just doesn't cover those aspects of a person's life. This is where a Last Will and Testament comes in, and it covers everything from who will care for your pets when you're gone to who gets that heirloom teapot you've guarded from your cousins for a several decades.
Join me next time for Part Two....
The Big W: Putting Together a Last Will and Testament and Other Estate Planning Concepts
Love and Temperance,