Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Tuesday, March 3, 2015

Problems With Boilerplate Advance Directives

Hospital care

An advance directive is a legally valid form that enables a person to choose the type of medical care he or she wishes to receive.  It goes into effect when that person is no longer able to speak for himself.  Nursing homes typically highlight advance directive completion rates with pride, as an attempt to show they are concerned about patients’ preferences. 

However, advance directives that come from nursing homes are cookie-cutter similar.  Almost all indicate that a patient has stated that all attempts to prolong life should be pursued and no treatment is unacceptable—regardless of prognosis.  The witnesses are typically the admissions clerk and the social worker, hardly ever the physician. 

Unfortunately, this is the reality for many individuals.  Discussing values, preferences and goals in the event of debilitation is difficult and time consuming.  Since nursing homes are paid to care for patients in perpetuity, their employees may not be the right people to oversee the completion of these ever-important forms.  It may be time to begin questioning our blind trust in patient autonomy.  This may be in fact harming, rather than helping patients nearing the end of their lives.  Thus, in order to obtain better care, and to provide it, directives need to be created, updated, accessible and incorporated into treatment.

See Jessica Nutik Zitter, When ‘Doing Everything’ Is Way Too Much, The New York Times, Feb. 7, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

March 3, 2015 in Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Saturday, February 21, 2015

Article on Potter's Field

Potters FieldJason N. Summerfield (New York Attorney) recently published an article entitled, Comments on the Potter’s Field: The Future of Mass Graves, 28 Quinnipiac Prob. L.J. 23-47 (2014).  Provided below is the abstract from SSRN:

The paper addresses burial policy with respect to city cemeteries and, in particular, New York City’s Hart Island, the so-called 'potter’s field,' which is currently operated under the Department of Corrections. The institution is the target of a significant amount of recent scrutiny, including litigation, New York City Council oversight committees, and public criticism. These converging debates culminated in an overhaul of DOC policies regarding access to Hart Island, formation of an online database of burial records in April, 2013 and proposed legislation that would transfer jurisdiction over the island to New York City's Parks and Recreation. The paper outlines the pressing need for an understanding of the city cemetery as a global institution, noting how burial processes can change over time. It looks at New York City's own mass grave in addition to other variations throughout the world and history. The essay reviews the city cemetery in the context of three ‘criticisms’ raised by Hon. Elizabeth S. Crowley’s ‘Briefing Paper’ on the subject and recently proposed legislation that affects the institution.

February 21, 2015 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

The Disposition of Remains Act and Ernie Banks

Ernie Banks

I have previously discussed the court battle that erupted over the final disposition of the remains of legendary Chicago Cubs baseball player Ernie Banks.

In 2006 Illinois enacted the Disposition of Remains Act (DORA).  This law provides that “a person may provide written directions for the disposition or designate an agent to direct the disposition, including cremation, of the person’s remains.”  Written directions or designation of agent can be made in a:

  • Cremation authorization form that complies with the Crematory Regulation Act;
  • Prepaid funeral or burial contract;
  • Statutory Power of Attorney for Health Care that contains the power to direct the disposition of remains;
  • Written instrument that satisfies the provisions of DORA; or
  • A will.

In the absence of a written instruction or designation of agent, under DORA, priority to direct the disposition of remains is first given to “the individual who was the spouse of the decedent at the time of the decedent’s death.” 

Thus, unless Ernie Banks employed one of the recognized written methods of instruction or designation of agent, his estranged wife would have legal priority to direct the disposition of his remains.

See Jeffrey R. Gottlieb, Ernie Banks and the Illinois Disposition of Remains Act, Plan for the Road Ahead, Feb. 16, 2015.

February 17, 2015 in Current Affairs, Death Event Planning, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

Ernie Banks Estate Battle Intensifies

Ernie_Banks_cardAs I have previously discussed, a dispute over the treatment of the remains of the late Baseball Hall-of-Famer Ernie Banks has arisen between his family and his caretaker Regina Rice. The battle over whether to have Banks' remains cremated has turned into a full will dispute, with Banks' twin sons alleging that Rice manipulated Banks' into changing his will to cut out his wife and children and give Rice power of attorney and all of his possessions. Banks' remains have not been cremated, but the location of his remains is currently uncertain.

See Associated Press, Suitability of Banks' Caretaker Faulted, ESPN Chicago, Feb. 16, 2015.

Special thanks to Jason Smith (Texas Tech University School of Law) for bringing this article to my attention.

February 17, 2015 in Current Affairs, Death Event Planning, Estate Administration, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, February 15, 2015

Dispute Over Ernie Banks' Remains

Ernie Banks

The cherished Chicago Cubs great, Ernie Banks, who once said he wanted to have his ashes scattered at Wrigley Field, is at the center of a battle over his remains as his estranged wife has gone to court to prevent a longtime friend from having his remains cremated. 

According to court records, Elizabeth Banks filed a petition to prevent a woman who describes herself as a longtime friend of Ernie Banks, his caretaker and the executor of Banks’ estate from having him cremated.  The woman, Regina Rice, asserted her right to dispose of Banks’ remains after his death last month. 

A document titled “Last Will and Testament” and signed by Ernie Banks on October 17 of last year says he was in “the process of finalizing divorce” from his wife and that he had appointed Rice as the executor of his will.  Nowhere does Banks discuss what he wants done with his remains.

See Don Babwin and Andrew Seligman, Court Fight Arises Over What to Do With Remains of ‘Mr. Cub’ Ernie Banks, Daily Reporter, Feb. 13, 2015.

February 15, 2015 in Current Affairs, Death Event Planning, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2015

Grave Robbing Through the Web

Grave (dug up)

“Obituary surfing” is the phrase used to describe stealing from the dead.  While it sounds just about as low as one could go, cyber thieves have found a way to steal even more.

Before Robert Dennis passed away, he left specific instructions for his funeral service and obituary.  “When he wrote the instructions, he put in all caps, leave everything as I’ve written it!” His daughter Darby says.  When Mr. Dennis passed, his obituary was published in the paper and he was buried just two days later. 

Yet while everyone was focused on funeral arrangements and the family, no one took into account whether or not his banking account was secure.  Unfortunately, someone broke into Mr. Dennis’s bank account by using information easily gleaned from the obituary he wrote for himself. 

A spokeswoman for the Identity Theft Resource center says this is happening all of the time and the best way to prevent it is to forego offering personal information in the obituary.  Ask newspapers and funeral homes about making it password protected online so that only people who want to see it have that ability.  The less information, the better.

See Michelle Boudin, Grave Robbing Cyber Style—How to Prevent It, WCNC, Feb. 5, 2015.

February 5, 2015 in Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

Finding Forever After Death


Who owns what is left of you after you die, and what can they do that is out of the ordinary? 

Although a strange idea to ponder, one idea is to press your ashes into a vinyl record.  This record will play twelve minutes on each side.  You can record your voice, your favorite songs, your will, or just opt for silence.  The company advertises that its basic package will give you up to thirty discs and you can choose your own album covers. 

If you rather have something more permanent, consider a company called “LifeGem,” which takes your remains and turns you into a diamond.  The company states, “diamonds from ashes are created from a very specific source of carbon—your loved one.”  While you can choose among different colors and sizes, the company warns that the diamond they produce is not flawless. 

Other companies will mix your ashes with seeds and pot you in a biodegradable urn that gets planted, so you will eventually become a tree. 

See George M. Fox, Diamonds (and you) Can Be Forever, Big Canoe News, Jan. 10, 2015.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 30, 2015 in Death Event Planning, Estate Planning - Generally, Humor | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2015

Green Burials and Cremations


Unlike other living creatures on this earth, humans treat dying as a solemn rite of passage.  Many of us bury our dead with a ceremony, and many of us believe in an afterlife. 

This idea is reflected upon in the Green Cemetery Initiative, a nonprofit trust in rural central Massachusetts.  The main idea motivating the Green Cemetery Initiative is that instead of caring so much about preserving our own dead bodies, why not care more about preserving the natural environment—“the unspoiled beauty of God’s creation.”  According to the Green Burial of Massachusetts, a partner with the trust, “Each year we bury approximately 827,060 gallons of toxic embalming fluid, 104,272 tons of steel, 2,700 tons of copper and bronze, 30-plus million board feet of hardwood, and 1,636 tons of reinforced concrete.” 

The key feature of the initiative is that the deceased would be buried in biodegradable coffins, without embalming fluids and concrete fortresses.  Engraved organic flagstones would serve as grave markers. 

See Michael Guillen, Final Gestures, U.S. News & World Report, Jan. 28, 2015.

January 29, 2015 in Death Event Planning, Estate Planning - Generally, Religion, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2015

Arkansas Funeral Home Accused of Neglecting Bodies

CasketA funeral home in Jacksonville, Arkansas is facing a $10,000 fine and loss of their crematory license at the direction of the state Board of Embalmers and Funeral Directors in connection with a failed inspection of their practices of storing bodies. The funeral home, Arkansas Funeral Care, is also facing a lawsuit filed on Monday by Cheryl Cross-Smith. Cross-Smith claims that she suffered emotional distress and mental anguish after viewing her late husband's decomposing body in his casket in November due to lack of refrigeration and neglect by the funeral home.

See Noel Oman, Widow Sues Funeral Home, Arkansas Online, Jan. 27, 2015.


January 28, 2015 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Back Yard Burials in UK, Calls for Social Reform of Funeral Costs

CemeteryThe rising cost of funerals in the UK is resulting in poor families going into debt or turning to self remedies such as burying their loved ones in their backyard, according to Labour MP Emma Lewell-Buck. Lewell-Buck introduced a bill that calls for a review of the issue of funeral poverty and would introduce a simple funeral concept into the funeral payments social fund system. The average funeral cost is currently £3,551, and a report by the Royal London insurance company revealed that one-in-five families that face the loss of a loved one are incurring debt from the funeral expenses.

See Press Association, Rising Funeral Costs 'Causing People to Bury Loved Ones in Back Garden', The Guardian, Dec. 9, 2014.

Special thanks to Lewis Saret (Law Office of Lewis J. Saret, Washington, D.C.) for bringing this article to my attention.

January 23, 2015 in Current Events, Death Event Planning, New Legislation | Permalink | Comments (0) | TrackBack (0)