Legal Issues when someone has Dementia – Consider a Right of Disposition Designation

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.  Today’s installment will discuss the Right of Disposition.

The Right of Disposition is a short name for the right to make decisions about and arrangements for someone’s funeral and the disposition of that someone’s bodily remains. In other words, the person who has control over a deceased person’s funeral has the Right of Disposition.

In Ohio (where I practice,) the Right of Disposition is controlled by Ohio Revised Code section 2108. If the deceased person did not make a written designation to put someone in charge of his or her final arrangements, the Ohio statute has a system to determine who is in charge. (It’s not terribly different from the statutory system in state law that sets out inheritance from someone who didn’t leave a will.) Under Ohio law, in the absence of a written designation, the right of disposition goes to (in order):
– Spouse,
– Children,
– Parents,
– Siblings,
– Grandparents,
– Grandchildren,
– Lineal Descendants of Grandparents,
– Guardian when the person was living,
– Personal Representative for the Estate, or the Funeral Director who has the remains or anyone else willing to take responsibility, or
– The Public Official for the person’s public benefits if the person was indigent.

Under the law, there is always someone who has the Right of Disposition. So, why bother to designate anyone?

Many people, late in life, grow close to someone but they never marry. Often, widowed men and women have a long relationship (perhaps intimate, perhaps not.) Sometimes, the family of one of these people do not accept the relationship with the new person. (Usually, it’s the children that do not accept the new person because they don’t want a “replacement” for their deceased parent or they see this new relationship as their living parent being “unfaithful” to the deceased spouse.

If someone grows close to someone else late in life, he or she might want to give the right of disposition to that new “partner” (for lack of a better term.) If, by operation of law, the children have the Right of Disposition, the children may exclude the person who was their parent’s late-in-life partner. (Remember, the children might not have approved of the relationship.) Imagine the partner not being able to say “goodbye.” (Until the recent Supreme Court decision, this was a frequent issue for same sex couples because they could not marry in Ohio.)

Designating someone to have the Right of Disposition isn’t a necessity. For someone who has a partner or close friend in a late-in-life relationship, it might make the difference in having a chance to be there for the funeral.

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