Spoiler alert. This is an educational blog post. If you are opposed to gleaning new information or have a fear of learning, especially where after death matters are concerned, do not proceed. If, on the other hand, you or someone you know has trust issues or no remaining family, then this is information you need.

Let’s pretend you are dead. According to the law, who will have the privilege/responsibility of making your final arrangements? There was a time when that was not an issue, when families had not fractured into a thousand different pieces, when parents and children actually remained on speaking terms and spouses did not just walk away without benefit of a divorce. Unfortunately, today those circumstances—and so many more—roll through our doors all too often. So . . . to paraphrase the Sadducees as they quizzed Jesus, whose body shall this be?

In the State of Tennessee, the legal next-of-kin has the right to arrange for their loved one’s funeral. If you are married then that person is your spouse. If you are single or your spouse has died, then your children over the age of 18 are responsible. No children? Then your parents, if they are still living, are next in line. No living parents? Then we are down to your brothers and/or sisters. Beyond that, life – and death – gets very complicated. If your children have been adopted by someone else, then they are no longer your children and no longer have the right to arrange your funeral in that capacity. If you and your mate reside in Tennessee and are living together without the benefit of marriage, then you are also out of luck because Tennessee does not recognize common law marriages. Although some of these situations may seem a bit absurd, we have encountered each and every one of them – and many, many more. Even though the last potentially responsible party on the list is “An adult who exhibited special care and concern for the decedent”, if folks exist who fall farther up on the list, rights must be waived or efforts to locate them documented before forging ahead. But, for those of you with concerns about your final arrangements, there is a way out of this mess.

The laws of Tennessee provide for the appointment of someone to serve as your Durable Power of Attorney for Healthcare, a legal position which allows that person certain limited powers after your death. One such power is to see to the disposition of your remains; in other words, to plan your funeral. This is very different from a general Power of Attorney or a Durable Power of Attorney, both of which cease to be effective once you die. You need to exercise extreme caution when you name someone as your Durable Power of Attorney for Healthcare. Not only are you granting them the right to make your funeral arrangements, you are literally granting them the power of life and death over you. You should also remember that, just because they are your Durable Power of Attorney for Healthcare and can make your funeral arrangements, does not mean they have access to your money or insurance. Unless you make some type of arrangement for payment, you may find your Durable Power of Attorney for Healthcare unable to function in that role unless they are willing to pay for your funeral out of their pocket.

In the past few years, the Tennessee Department of Health has issued two forms to be used as Advance Directives. The Appointment of Health Care Agent will get you through till death, but not any further, meaning it is useless if you are trying to make someone responsible for your funeral arrangements. The Advance Care Plan, which is the equivalent of a Living Will, does offer the option of including instructions regarding burial arrangements, but it does not carry the legal weight of a Durable Power of Attorney for Healthcare.

So here’s the deal, if you think there’ll be a fight over your body after you die—or worse yet, no one wants to step up to the plate—name someone you trust as your Durable Power of Attorney for Healthcare. Don’t think putting it in your will is sufficient. It isn’t. Don’t think just telling someone what you want will work. It doesn’t. If you have no next of kin to entrust with this responsibility, then your next—and really only—option is a Durable Power of Attorney for Healthcare. Your friends and extended family who care about you but can’t legally proceed after your demise will be grateful, as will the poor funeral director who may have to sit across the table from someone and explain why they can’t plan your funeral.

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