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.

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