Legal Issues when someone has Dementia – Pre-Planning a Funeral Ceremony

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  Today’s installment will discuss pre-planning a funeral ceremony.

Today’s installment continues the discussion of issues to manage when someone finds out that he or she has a disease that causes dementia.  These issues should be managed before the dementia gets worse, before the disease takes away the person’s ability to make decisions.  Continuing the current topic of pre-planning a funeral, this week’s discussion will focus on the steps to take when planning the funeral ceremony itself.

The plan for the funeral should be written down.  The person choosing his or her own funeral arrangements won’t be available to provide clarification.  (In addition, in our ongoing discussion of someone with dementia, the person making the funeral arrangements may not be able to remember them very long after making them.)  It can be written down anywhere on anything, as long as it can be FOUND when needed.  The plan should also include projected costs so that pre-funding can be considered as well.  (The next installment will discuss payment options.)

The first part of the written funeral plan is to find a pre-need funeral checklist or shopping list.  There are pre-need checklists online.  (You can find many of them through a search engine.)  Funeral homes (and funeral providers that don’t have a funeral home) have pre-need checklists available as well.  Pre-need checklists are often a sales tool for funeral services, so they focus on the services offered by funeral homes.

Unless the person trying to pre-plan the funeral can find a satisfactory checklist online, the person should identify a funeral home that he or she would like to use.  The choice of funeral home at this point isn’t necessarily final for the eventual funeral services.  The family can choose a different funeral home, if they wish, when the person eventually passes away.  When that funeral home has been identified, the person should visit (if possible) and get a pre-need checklist.

The person planning the funeral can use the pre-need checklist for a large portion of the planning necessary for the funeral.  If the pre-need checklist came from a funeral home, it will almost certainly make available all of the services that the funeral home offers.  The person planning the funeral can choose or refuse most of those services,  but if the funeral home offers a service, the pre-need checklist will probably include it among the choices.

Depending on the final resting place chosen (discussed in the August 14, 2015 installment,) certain services may be required.  These potentially mandatory services include enbalming and a burial vault.  (The vault may or may not appear on the pre-need checklist and may depend on whether the funeral home has a long-standing relationship with one particular or a few particular cemeteries.)

One of the items almost certain to be on the pre-need checklist is a choice of casket.  A funeral home will have many models available (in full-size versions, child-size versions, or photographs) from which to choose.  When choosing a casket, the model name will usually be written on the checklist  I suggest that a photograph be taken of the inside and the outside of the casket as well.  The model chosen may no longer be in production at the time of death.  The photographs will help identify a substitute that is close the the original choice.  (I assume that caskets go out of production because a less expensive material or manufacturing process was devised.  A casket isn’t like a car which people replace every three or four years.  Styles don’t seem to have changed much over the years either.  Nonetheless, casket models do go out of production, so photographs are a good addition to the pre-need checklist.)

The clothing chosen for the deceased is usually listed on the pre-need checklist.  In addition, the list also usually includes places to list readings and songs that the person would like.  If the pre-need checklist does not include these, the written plan should include them.

In addition to the burial vault and enbalming mentioned above, a few other items may or may not be included on the pre-need checklist.  (If the funeral home doesn’t make money from a particular funeral-related service, the funeral home does not have an incentive to include that service on the checklist.)

For example, flower arrangements are usually purchased from a florist.  If floral arrangements aren’t listed on the pre-need checklist, the planner should visit a florist and choose what he or she wants.  (Flowers are a staple of funerals, so most pre-need checklists include them.  Some lists don’t, though.)

Pre-need checklists don’t always include a minister as an available choice.  (This is rare, but it does happen sometimes.)  If the funeral needs a particular minister or a minister of a particular denomination, the plan should make sure to include that choice.  (If a particular minister is desired, the plan should include a back-up.  That one particular minister may not be available.)

Similarly, the pre-need checklist may or may not ask about a place of worship.  If there is a particular place where the funeral should be held, that place should be listed on the funeral plan.  If a memorial service is preferred over a funeral, that choice should be made clear on the plan.  (Obviously, a place of worship and a choice of minister often go hand-in-hand, but not always.)

If there will be a burial or placement into a mausoleum, there will probably be a charge for opening and closing the grave.  Unless the funeral home is affiliated with a particular cemetery, this item is unlikely to be included on the pre-need checklist.  To avoid a last-minute surprise, this cost should be obtained from the cemetery and included on the plan.

The repast (the meal after the funeral and sometimes called the funeral breakfast) is often left off the pre-need checklist.  This can be a big cost if catered or can be no cost at all if provided by church members or friends.  The planner should think about the meal plans and include the necessary description (and likely cost, if any) in the funeral plan.

Travel needs should also be considered.  If the deceased person will need to be transported for burial (most often back to a family home,) the arrangements should be described in the plan and cost projections included.  If loved ones will need to travel to the funeral, the plan should include how those loved ones will travel and how much that travel will cost.

Finally, the plan should include a list of people who must be told of the person’s death.  If possible, the plan should include contact information for those people.

Similarly, the plan should include a draft death notice.  The person planning his or her own funeral should get a chance to have the death notice say what he or she wishes.

Planning a funeral can be traumatic, or it can be cathartic.  Either way, a person facing dementia should get a chance to plan the funeral he or she wants before that chance is taken away by the dementia.

With dementia already affecting the person and, because of the dementia, long term care likely in the future, planning a funeral is more important and more pressing.  If the costs of long term care force the person to seek Medicaid coverage, the Medicaid application process will almost certainly ask about funeral plans and also about pre-payment.

18 Year Old needs Health Care Power of Attorney

This week’s blog is “breaking news” in the middle of the ongoing discussion of Legal Issues when someone has Dementia.  In fact, this week’s blog takes a break from the over-arching audience of seniors and people with special needs.  This week’s blog will address newly minted adults (i.e., 18 year olds.)

When a child reaches the age of 18, his or her parents no longer have the legal right to make his or her decisions.  The parents may be able to insist on certain behaviors because the parents are paying the bills or because the 18 year old child/adult still lives at home, but this financial/housing influence doesn’t apply to the rest of the world.  Perhaps most pointedly, the parents no longer have the right to make medical decisions.

Urge your 18 year old child to execute a Health Care Power of Attorney.  (That’s what we call it in Ohio, where I practice.  Other states may have a different name for this document.)  A Health Care Power of Attorney appoints someone to speak for the person who signs it (in this discussion, the 18 year old person) on medical decisions when that person cannot speak for himself or herself.

Why can’t this young adult speak for himself or herself?  Perhaps the young adult has been in a car accident.  Perhaps the young adult has passed out from alcohol or drugs.  Perhaps the young adult had a heart attack or serious infection that rendered him or her unconscious.  Anything can happen.  (A number of these new young adults are going away to college this month.  Let’s face it.  Some of these college freshmen will do stupid things.)

I suggest that the young adult name his or her mother and father as the Agents (what Ohio calls the appointees in a Health Care Power of Attorney.) If the young adult is moving away to school, I suggest that he or she also name as an Agent a relative or friend at the school or near to it.

As I’ve discussed in prior discussions about the Health Care Power of Attorney and other advance directives, I suggest that the Principal (the young adult in this case) name one agent and some successors.  I do not suggest that anyone in the list be made co-agents.  The possibility of disagreement between these Co-Agents is too high, and the result of disagreement is that no decision gets made.

In addition, because the Agents should be able to acquaint themselves with the Principal’s medical situation before an emergency arises, the Principal should sign a HIPAA (health information privacy) release naming all of the Agents (primary and successors) as eligible to receive information from the Principal’s primary care physician and any other medical professionals that have current medical information on the Principal.  (For example, the records of an orthodontist who put braces on the Principal and has already removed the braces is probably not important to the Agents.)  I would not limit the HIPAA release to just the primary Agent.  The Principal does not know which of the Agents (primary or successor) will actually be the one making decisions in a time of crisis because the Principal does not know when that time of crisis will be (if ever) and does not know which of the Agents will be available at the time of the Principal’s crisis.

Remember, we hope that the young adult (the Principal) never needs anyone to use the Health Care Power of Attorney.  It is, however, better to have the Health Care Power of Attorney in place and not to need it than to need it and not have it.

Ohio has a Health Care Power of Attorney form, and I suggest that the Principal use this form if he or she is an Ohio resident or is going to school in Ohio.  Remember, when someone needs to use a Health Care Power of Attorney, the Principal might easily be in an emergency situation.  Medical professionals throughout Ohio are familiar with the Ohio form Health Care Power of Attorney.  If a patient has a Health Care Power of Attorney that is not on a recognized form, the medical professional may feel the need to check with his or her attorney on the legality of the POA.  Checking with the attorney can delay the medical treatment.  I like to use the recognized form to avoid this legal advice delay.

Ohio’s form Health Care Power of Attorney is available on my website behind the Toolbox tab.  (I can’t give you links because my version of WordPress doesn’t like me to use links in posts.  Sorry.)

Legal Issues when someone has Dementia – Choosing a Final Resting Place

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2 installment discussed revoking prior Powers of Attorney.  The July 9 installment discussed Do Not Resuscitate orders.  The July 16 installment discussed the Right of Disposition designation.  The July 23 installment discussed the Will (or Last Will and Testament.)  The July 31 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 7, 2015 installment discussed whether to pre-plan a funeral.  Today’s installment will discuss choosing a final resting place.

Today’s installment continues the discussion of issues to manage when someone finds out that he or she has a disease that causes dementia.  These issues should be managed before the dementia gets worse, before the disease takes away the person’s ability to make decisions.  Following on last week’s discussion on whether to pre-plan a funeral, this week’s discussion will focus on what to consider when deciding on a final resting place.

First, the person must choose between traditional burial and cremation.  This decision can turn on his or her personal preference and/or religious beliefs.  It can also turn on cost.  (I don’t mean to be crass, but cost is always a factor.)

Second, the person must choose his or her final resting place.  Whether he or she chooses cremation or traditional burial, the location is an important step. The location decision can also be the most time-sensitive decision.  (Because the final resting place decision is time-sensitive, the choice between burial and cremation is time-sensitive because the final resting place decision depends in part on the cremation/burial decision.)

If the person chooses to have a cremation and have his or her ashes (called “cremains”) scattered or kept somewhere personal, the placement of the cremains can be treated as part of the ceremony.  If, however, the person chooses to have his or her remains (whether cremated or not) placed in a cemetery or other location where other people may have their remains placed, the location must be reserved ASAP.  If he or she wants to be placed in a prime location (such as “under the big oak tree,” or next to Mom, or in the niche at eye level in the mausoleum) he or she should buy that location NOW before someone else buys it first.  The placement of remains in a cemetery is a real estate transaction.  The three most important parts of the real estate transaction are “location, location, and location.”  If someone gets your favorite spot before you do, it’s not your spot.

The decision to scatter cremains or to be buried or placed in a mausoleum is, like the cremation decision itself, largely based on personal preference and often on religious beliefs.  Cost (as always) is a factor as well.

If religious beliefs or costs do not dictate the choice, then personal preference controls.  The personal preference might be based on a wish to be placed where loved ones can visit.  It might be based on a desire to stay with loved ones, such as cremains kept in a family member’s home.  It might be based on an important event in the person’s life.  (A friend’s father was an avid golfer.  He asked that his cremains be scattered on a golf hole where he scored a hole-in-one.)  The decision might also be an acknowledgement of a lifelong interest, such as having ashes scattered in a favorite meadow or forest.

The decision of a final resting place is deeply personal.  Someone with the early stages of dementia should get a chance to make that decision before the opportunity gets away.

Legal Issues when someone has Dementia – Consider whether to Pre-Plan a Funeral

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2 installment discussed revoking prior Powers of Attorney.  The July 9 installment discussed Do Not Resuscitate orders.  The July 16 installment discussed the Right of Disposition designation.  The July 23 installment discussed the Will (or Last Will and Testament.)  The July 31 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc. Today’s installment will discuss whether to pre-plan a funeral.

Today’s installment continues the discussion of issues to manage when someone finds out that he or she has a disease that causes dementia.  These issues should be managed before the dementia gets worse, taking away the person’s ability to make decisions.

A person who finds out that he or she has dementia should consider pre-planning his or her funeral, if it is not already planned.

The person may be reluctant to talk about his or her funeral, but it can be a cathartic experience.  Nonetheless, some people feel that planning the funeral, like preparing a will, is tempting fate.  That’s okay.  While I think it’s a good idea to pre-plan a funeral, it’s not going to change how the person’s disease will be managed.  If the discomfort thinking about a funeral is too great, then the person should not do it.

There are, however, several good reasons to pre-plan one’s funeral.

First, pre-planning a funeral allows the person to have the funeral that he or she wants.  If the person doesn’t leave instructions, then his or her loved ones must make their best guesses on the funeral details that the person would have wanted.

Second, pre-planning a funeral allows the person to set aside money for the funeral.  With a plan for a funeral, the person can have confidence that the money set aside is the right amount.

Third, pre-planning one’s own funeral relieves the emotional burden of one’s family to plan it at the time of death.  Just as the worst time to shop for groceries is when hungry, the worst time to shop for a funeral is when grieving.  If my mother were to die (sorry, Mom,) I might feel the need to show the world how much I loved my Mom by getting her the platinum casket with the silk lining and the gold accents and spend tens of thousands of dollars for it.  My mother, might have wanted a simple maple casket costing much less.  Now, I know that my Mom has a funeral plan already prepared.  If she didn’t have a funeral plan, though, my grief might cause me to spend much more on her funeral than she would have wished and cause me to arrange a funeral very different than what she would have wanted.

In summary, I urge anyone with early stage dementia (frankly, anyone over retirement age as well) to consider pre-planning his or her funeral.  Someone with early stage dementia has more of a timing concern before the dementia advances, but any senior should consider whether to pre-plan his or her funeral.