Question about durable powers of attorney and will

Factual Questions
1

(I understand that you are not a lawyer.)

If I understand the situation correctly, a durable power of attorney can’t be used after death and the executor of the will needs a court order to act on the deceased’s behalf. Since my partner is not my next of kin (dammit), there seems to be a gap wherein she cannot make decisions for the disposition of my body.

First – Am I understanding the law correctly?

Second – Is there anything I can do to ensure that she can take care of arrangements right after my death (rather than defaulting to my family)?

(FWIW, I’m not too worried about my family being jerks. But my Mom’s gotten a bit off in her old age, so I’m not 100% convinced they *wouldn’t *be jerks.)

2

My sister and I had Durable Power of Attorney for my mother’s affairs. When mom passed away and I told the funeral home that I had DOP the friendly fellow there said (in a nice way) “not any more you don’t”. He told me that a DOP doesn’t survive death.

Having said that, he had no problems with my making all of the decisions concerning the handling of her remains. Of course, that might have been related to the fact that I had handed him my credit card to pay for everything <g>.

(Also, there were no issues in terms of disagreements as to how to handle things. I guess that means I have no answer for your second question.)

3

Agency relationships (which is what a POA creates) terminate at incapacity or death, if not terminated earlier.

The durable POA endures the incapacitation of its principal. Disposition of the deceased’s estate is governed by the statute of wills, and consequently, any such instrument needs to be executed with the formalities specified by that act (i.e., it’s got to be a will/codicil).

That’s the general concept behind it. Importantly, however, the Illinois Power of Attorney Act allows DPOA to withstand the death of the principal to carry out his/her wishes on matters concerning anatomical gifts, autopsies and disposition of remains. 755 ILCS 45/4-3.

Most states’ Health Care Power of Attorney acts are creature of statute (and tweak the traditional common law of agency). In order to determine your options under your state’s law, you should consult an attorney.

4

IANAL, but in the OP’s position, I would be considering:
(1) Making my partner the executor of my will, and
(2) Specifically providing in my will that my partner had the power to control the arrangement for the disposition of my body.

I see no reason why those couldn’t be in your will, but you should ask your lawyer about how best to do both.

(As far as I know, the executor of a will need not be a lawyer, and may be a beneficiary under the will. The executor may hire a lawyer to give practical help with the formalities of executing the will.)

5

One “funny” thing to note is that giving advice on wills is without a doubt the most fertile ground for future malpractice claims (like twenty years in the future, after you forgot all about it!).

6

Yes, but I’m not giving legal advice here, since I’m not a lawyer and not pretending to be one either.

7

I know. It was intended in more of a “fools rush in where angels fear to tread” sort of way. :wink:

8

When my father died, and said something similar to my funeral home director, she very politely said, “When your father died, the POA died.”

As to the second of the OP’s questions:

IANAL, but isn’t that what wills are for: taking some of the guesswork out of the last wishes?

9

I’ll check our wills to see what it says about making arrangements for the body. We are each other’s executors and heirs.

This is the part I haven’t seen an answer to:

10

I’ll defer to the legal types on this, but this is what it would seem to me as a layman:

Even though you might be named as the executor, you do not officially receive that capacity until the probate court has appointed you as the estate’s personal representative (in accordance with the will), which would then give you the legal authority to act on the deceased’s behalf. I don’t know whether that qualifies as a “court order,” but I think you need their blessing before you can assume any official duties. I know I had to have my yellow sheets (appointment papers) anytime I had business to do with either of my parents’ accounts.