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SHOULD YOU DESIGNATE HOW YOUR BODY IS TO BE TREATED AFTER YOUR DEATH, OR WHO IS TO HAVE CONTROL YOUR BODY AT YOUR DEATH?

Have you ever wondered who has control over your body when you die?  Or whether your wishes as to how your body will be disposed of will be carried out?   No?

Well, perhaps it is worth a few minutes of your time.   After you are gone your loved ones might be thankful if you do address these matters, since unless you designate how you want your body treated after your death, or who is to have control of your body at your death, it is possible confusion and acrimony will arise over this issue, at a time of grief and mourning.

Connecticut law (Connecticut General Statute 45a-318) allows you to execute a document to designate how your body is to be disposed of at your death, and who is to have control over your body at your death.   A copy of the statute as it exists in 2013 is attached to this article.

Absent the existence of such a designation, who has the right to control your body?    The answers to that question can be found in CGS 45a-318, which may or may not be appropriate for you.

Controversies in this area do arise.   They are fairly well reported in cases of same sex couples (at least those who have not legally married or consummated a legally recognized civil union).    We are aware of a case where after the death of a parent (a widow) the children had different ideas about who should be in control of the body, and where and what type of funeral service should be conducted, and whether the body should be embalmed, buried, or cremated.     These differences created substantial heartache (and some legal fees) for the family members involved, which only added to the pain arising from the death of the loved one, and exacerbated simmering discord among the children.    Had a document authorized by 45a-318 been executed, there is reason to think some of the difficulties the family faced would have been lessened.

We recall another case which involved a second marriage for the deceased.   The gentleman’s widow wanted his body interred in a plot where at her death she could be interred next to him.    An argument ensued with the gentleman’s children, who wanted his body interred in what they viewed as the family plot, next to their mother.    The wishes of the gentleman’s wife prevailed, which would be the outcome under CGS 45a-318.    Had he executed a document authorized under 45a-318, and his wishes were clear, the arguments about control of his body could have been avoided.

The law allowing a person to designate a person to have control over their body co-exists somewhat uneasily with other laws that address how a body is to be handled at death and to a degree diminish the rights that appear to be given in 45a-318.  

Of particular note is the role given in Connecticut to funeral directors under Connecticut General Statute 7-62b (which refers to the preparation of a death certificate by a funeral director “in charge of the burial”), and CGS 7-69 which requires a licensed embalmer or funeral director to remove “the body of a deceased person”.    This in effect mandates the involvement of such persons in the handling of the body, but as a practical matter that is unlikely to be unwelcome to most of us.

It is of some interest to note that CGS 45a-318 provides protection to a funeral director who follows the directions set out in an instrument executed pursuant to 45a-318 designation, no doubt thereby increasing the likelihood the wishes stated in the instrument will be respected.

Such a designation may not be appropriate or necessary in all cases, but we think in many cases it would be a useful addition to other estate planning documents that are commonly executed.

 

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Andrews & Young, P.C.
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Andrews & Young, PC, assists clients with Estate Planning, Wills and Trusts, Special Needs and Supplemental Needs Trusts, Trust Administration, Probate and Estate Administration, Conservatorship, Elder Law, Title 19 and Medicaid issues, Planning to address the costs of nursing home care, and Residential real estate, throughout eastern Connecticut, including New London, Waterford, East Lyme, Niantic, Lyme, Old Lyme, Montville, Uncasville, Groton, Ledyard, Gales Ferry, Stonington, North Stonington, Norwich, Old Saybrook and Mystic.

Andrews and Young, P.C. Attorneys at Law

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