1/14/2002

During some part of our discussions with clients about their Wills, the topic of funerals or cremations arises. Whether the client raises the topic as one of special concern, or a reference to "funeral expenses" in the Will draft evokes a question, the client expresses a need for counsel. In response, some attorneys include statements in their Wills to describe the client's wishes regarding the type of funeral, or the place of burial, the desire to be cremated, and the disposition of remains. Others point out to the client that a more effective way to address the topic might be to pre-arrange the disposition of his or her body by contract with a funeral director and by oral and written communications with family members.

Although either of those approaches may satisfy a client's immediate concerns, both may fall short of being entirely effective. Subsequent to the execution of a Will, reference to its terms may not be made for some time after the client's demise. The client may be reluctant to enter into a "pre-need" contractual arrangement or to discuss the topic with family members. For clients who have definite intention of being cremated upon death, sometimes a funeral director may be left with uncertainty or conflicting demands from family members as to whether or not the client's wishes should be honored or as to which next-of-kin should be entrusted with the client's remains.

There is a new form available that attempts to address these issues. Public Act No. 01-131, effective October 1, 2001, amended Section 45a-318 of the General Statutes to establish a procedure for adults to use, while living, to authorize cremation of their remains. In accordance with that legislation, Connecticut's Department of Public Health has now made available a new form, VS-48, which can be obtained from that Department at 410 Capitol Avenue, P.O. Box 340308, Hartford, CT 06134. The form is entitled, "Cremation Permit," and seems to contemplate the involvement of a funeral director and a local Registrar of Vital Statistics at some point during the procedure. However, the law does not require such involvement until after the client's death has occurred.

According to the law, a person can "self-authorize" his or her own cremation. The new form requires: (1) the person's name, address, sex, and date of birth, (2) the statement: "I am of sound mind and capacity and authorize the cremation of my remains upon my death," (3) the designation of an individual to be custodian of the person's remains, and (4) the person's signature and those of two witnesses who attest to the person's capacity.

Under Section 45a-318 of the General Statutes, if the person is married, the custodian of the person's remains must be the person's surviving spouse, so long as that spouse has not abandoned or separated from the person. Otherwise, the custodian must be the person's next-of-kin, unless the person designates someone else. However, even if the person does use the new form to designate someone else as custodian, the new legislation does not seem to change the probate court's authority to entertain a petition from the person's next-of-kin for an award of custody of the remains. Hopefully, the court will want to take into consideration the client's written designation in considering such a petition.

Nor does the law state what should be done with the form once it has been executed by the client. Presumably, the client will want to keep it with his important papers in a place where it will be readily accessible upon death, so that it can be promptly delivered to a funeral director. That person must then complete other parts of the form and obtain permission of the Registrar of Vital Statistics to perform the cremation, unless the cremation is authorized under other statutes (such as that governing unclaimed bodies to be disposed of at public expense).

The form is printed on letter-size, linen-finish, white bond paper and is but one page in length. Instructions for its completion appear on the back of the form. Xerox copies seem not to be permitted, as both the legislation and the Department of Public Health appear to contemplate that, if a self-authorized cremation is desired, the official form must be used. As to existing Wills containing statements regarding cremation or disposition of remains, perhaps we have one more topic to consider during our review of estate plans, and one more form to add to our compendium of Advance Directives.

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