Taxation & Estate Planning

Carlson v. Glueckert Funeral Home, Ltd. and Disposition of Remains

By Joel A. Schoenmeyer

This month's CBA Record has a nice article by Mary Dory Cascino on the disposition of remains act and how it interacts with a health care power of attorney. I don't want to summarize that article (available here as a PDF), but I do want to address a recent case that Ms. Cascino discusses in her article.

The case in question is Carlson v. Glueckert Funeral Home, Ltd., which is available as a PDF here. The case involved a woman named Eleanor Carlson, and her two children (Scott and Denise). Eleanor was evidently estranged from Denise at the time of her death, but Scott was a fiduciary for his mother in lots of capacities.

After his mother's death, Scott made arrangements for his mother's funeral and burial with the Glueckert Funeral Home. Soon after, Denise also contacted the funeral home, and tried to make other arrangements for the funeral and burial. At this point, the funeral home told Scott that the funeral would have to be delayed because of this dispute, but that Eleanor's body would not deteriorate. Later, the funeral home sent the body to the Lake County coroner's office. When Scott was finally able to have the body sent to another funeral home, it had "extensively decayed." Scott then sued the Glueckert Funeral Home.

The funeral home attempted to defend its actions (inactions?) by invoking Section 50 of Illinois' Disposition of Remains Act (the "Act"). That Section of the Act states as follows:

Any dispute among any of the persons listed in Section 5 concerning their right to control the disposition, including cremation, of a decedent's remains shall be resolved by a court of competent jurisdiction. A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent's remains, or to inter or otherwise dispose of the decedent's remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.

Section 5 sets forth the priority for controlling the disposition of a decedent's remains -- priority #1 goes to an agent appointed by the decedent. Eleanor had named Scott as her agent under her health care power of attorney, although there was some question as to whether this agency continued after her death. Ms. Cascino takes the position that the funeral home should have relied upon this power of attorney, that the power of attorney meant that there was no dispute over the disposition of Eleanor's remains, and that therefore Section 50 is not applicable. I'm not so sure. I think the funeral home COULD HAVE relied upon the power of attorney, but I also don't think it's fair to expect or require the funeral home to do so. Rather, I agree with the court that "it is not the role of funeral homes and cemeteries to judge the relative legal rights of feuding family members." After all, Section 50 makes reference to "any" dispute.

The bigger issue for me is the fact that the funeral home apparently allowed Eleanor's body to decay, even though neither Scott nor Denise wanted this to happen. Can't a funeral home at least be required to keep the body in question "on ice"?

I'd also like to see Illinois courts adopt some expedited court procedure (similar to a temporary restraining order) for determining who is entitled to dispose of remains.

Full post as published by Death and Taxes Blog on August 09, 2011 (boomark / email).