01/06/2006

Right of Disposition Case Underscores Need for New Law

By: T. Scott Gilligan, OFDA General Counsel

The Court of Appeals for the Tenth Appellate District recently upheld a Probate Court decision in a case entitled In The Guardianship of James O. Napier v. Michael Napier. This case, which made front-page news in the Columbus Dispatch, involved a dispute over the final disposition of the remains of James Napier.

The fact pattern in the case is one all too familiar to Ohio funeral homes. Mr. Napier, who was legally incapacitated, was near death. His second wife and his son, who had earlier battled over who would serve as his guardian, had previously agreed in writing that upon his death, the spouse would make all funeral arrangements "necessary to properly lay the ward [Mr. Napier] to rest" and that Mr. Napier's remains were to be "buried at Wesley Chapel Cemetery". Shortly before his death, the dispute again broke out when the spouse indicated his remains would be cremated prior to burial. Mr. Napier's adult children were outraged and filed suit.

The Probate Court held that the wording of the agreement would allow burial either of the body or the cremated remains. Therefore, it held that Mrs. Napier could opt for cremation. The Court of Appeals upheld that decision. It found that even if the prior written agreement were not valid, Ohio Revised Code Section 4717.22(A)(1) governing cremation authorization gave the surviving spouse the priority in deciding whether to cremate the remains of a deceased spouse.

The son and daughter of Mr. Napier had argued that despite the cremation authorization statute, the court had the power to set aside the disposition directions of the surviving spouse and honor the decedent's wishes. They further testified that Mr. Napier had religious objections to cremation and desired to be buried in full body form.

The Appeals Court appeared to reject the claim that Ohio courts have the authority to set aside the cremation disposition decisions of a surviving spouse. Instead, it relied upon the cremation statute in large part to uphold Mrs. Napier's decision to cremate.

The decision in this case does little to provide any guidance to Ohio funeral directors. Although it appears to reject the notion that a court can supersede the statutory right of a spouse to select cremation, other courts have so intervened in prior disposition disputes. What the decision really does is underscore the need for Ohio to adopt a comprehensive right of disposition statute that would decisively address each of the following issues:
1.)Establish a priority list of who holds the right of disposition that would address not only cremation, but also funeral arrangements, all other forms of disposition and disinterment.
2.)Create a mechanism by which the decedent during his or her lifetime could appoint an agent to carry out funeral and disposition plans. The agent would supersede all others, including the surviving spouse.
3.)Establish a procedure where family, significant others, and even the funeral director could proceed to probate court to seek direction in cases where there are conflicts among family members.
4.)Spell out under what circumstances survivors lose their right in disposition when they cannot be located, are criminally responsible for the death, fail to exercise their rights, or have no resources to pay for the funeral and disposition.
Set forth specific factors that courts should examine when deciding cases where there are conflicts among family members and significant others.
5.)Establish in the law that funeral homes and crematories may rely upon written authorization forms and have no duty to investigate claims of family members concerning who holds the right of disposition. The statute would also provide comprehensive immunity for funeral homes and crematories that rely in good faith upon signed authorization forms.

OFDA has been working over the last year with the Ohio Bar Association to put together a right of disposition law for Ohio that includes each of the items set forth in this article. Those efforts have culminated in House Bill 426 that was recently introduced by Representative Dolan.

We anticipate that testimony on the bill will be taken in the early part of 2006. OFDA will be contacting members later in the year regarding the assistance they can provide in support of this much needed legislation.

If any members have questions regarding this article, feel free to contact Scott Gilligan at (513) 871-6332.