Illinois Disposition of Remains Act and Health Care Power of Attorney

As mentioned in our previous post, the Illinois Statutory Short Form Power of Attorney for Health Care was recently amended.  The new form provides the agent has authority over four general issues, including:

"(iv) Carrying out the plans I have already made, or, if I have not done so, making decisions about my body or remains, including organ, tissue or whole body donation, autopsy, cremation, and burial."  

The same section of the statute, after the form, further states that the agent is presumed to have authority "...to direct the disposition of the principal's remains."  755 ILCS 45/4-10.  

However, Illinois also has a "Disposition of Remains Act," found at 755 ILCS 65/1, et. seq.  This statute contains a list of persons having priority to make such decisions, UNLESS the deceased left directions in one of a number of possible writings, one of which is a Power of Attorney for Health Care.  The statute does NOT provide for any of these writings to trump another, so consider this fair warning against signing conflicting types of documents on this issue.  

The DRA provides form language, also contained in the Crematory Regulation Act, that a person desiring to be cremated at death can use to clarify their wishes and whether the wish to allow any family members to alter their arrangements.  The specific language in the statute, 755 ILCS 65/10, is:

"If the disposition of my remains is by cremation, then:

(__)  I do not wish to allow any of my survivors the option of canceling my cremation and selecting alternative arrangements, regardless of whether my survivors deem a change to be appropriate.

(__) I wish to allow only the survivors I have designated below the option of canceling my cremation and selecting alternative arrangements, if they deem a change to be appropriate:..." 

For persons completing Health Care Powers of Attorney, it is helpful to consider your wishes as to burial, cremation, and special wishes, in advance.  If you wish to be cremated, the above language from the DRA can be used in conjunction with your Health Care Power of Attorney form to clarify your wishes for your agent.  

Similarly, the same section of the DRA allows for the decedent to list any "special directions" for the agent as to the disposition of their remains.  Thus if you have pre-paid or made advance arrangements for burial or cremation, this form language can also be inserted into the Health Care POA form to help make sure your agent is aware of your wishes and the arrangements you have made.  

The statutory "short form" power of attorney documents are quite helpful, but are not mandatory and do not always contain sufficient detail to address an individual's particular concerns.  This is an example of one simple, specific modification that many people might find helpful to clarify their wishes for their agent and loved ones.  

Nate Hinch is an attorney and partner at the law firm of Mueller, Reece & Hinch, LLC.  He has offices at 404 N. Hershey Road, Suite C, Bloomington, IL 61704, and 809 Detweiller Drive, Peoria, IL 61615, and can be reached by phone at (309) 827-4055 and email at nhinch@mrh-law.com.