WD Case Prompts Call for Action
by Reg Turnbull, Chair, Elder Law Committee
The Western District of Missouri issued an opinion on August 6, 2013, In the Estate of Betty Jean Collins, WD 75448, that pointed out that the words we use in the documents that we draft make a difference. By the terms of a healthcare durable power of attorney form provided by the healthcare provider in that case, the authority of the agent was not to take effect until a physician (or two physicians) certifies that the principal is incapacitated.
The principal in the case, Betty Collins, died instantly; thus, the condition precedent to the authority of the agent taking effect as specified in the document never occurred. Claiming that she was following Betty’s wishes, the agent sought to exercise the right of sepulcher found in section 194.119, RSMo., under the healthcare power of attorney to follow Betty’s wishes for cremation. Other family members, however, wanted her body buried in a family burial plot.
The court ruled that Betty’s agent did not have authority to have her cremated under the terms of the document.
Some of our members are calling for legislative changes (I suppose to insulate against drafting errors) while others are encouraging that documents be written differently in (1) the healthcare power of attorney, (2) the financial power of attorney that may not be springing, or (2) a standalone power of attorney with instructions as to what arrangements are to be made of the principal’s body after death.
It is too early to say what will be done; however, this has been a good example of how we must stay on top of developments to always exercise the professional diligence expected of us in preparing documents that accurately and clearly reflect our clients’ intent.
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