09/06/2011

RIGHT OF DISPOSITION LAW PROTECTS OHIO FUNERAL HOMES

By T. Scott Gilligan, OFDA General Counsel

            OFDA has published a number of articles on Ohio’s right of disposition law that is found at Section 2108.70 et. seq. of the Ohio Revised Code.  For the most part, we have reviewed how the law spells out the priority list of who holds the right of disposition and how the law settles disputes.

            One portion of the law that has not received much attention is the extensive immunity provisions that OFDA was able to insert into the law when it was enacted back in 2006.  As a result of OFDA’s efforts, Ohio funeral homes enjoy the greatest level of protection available under right of disposition statutes in the country.

            What are these protections?  Ohio’s right of disposition statute provides the following benefits and immunities to funeral directors and funeral homes:

• In the event of a dispute regarding who holds the right of disposition, Section 2108.83 allows a funeral home, crematory, cemetery or their employees to refuse: (i) to accept the remains, (ii) to make or complete funeral or other arrangements pertaining to the final disposition, or (iii) to inter, cremate or otherwise dispose of the remains until a probate court issues an order resolving the dispute or the parties to the dispute execute a written document agreeing on the disposition.  The statute specifically provides that the funeral home, crematory, or cemetery shall not be liable for refusing to undertake any action until the dispute is resolved by the court order or the written agreement of the parties.
• In the event of a dispute, the funeral home that is holding the body is authorized by Section 2108.84 to embalm, refrigerate, and/or shelter the remains in order to preserve them during the dispute.  Authorization to embalm from the persons claiming to hold the right of disposition is not required.  In addition, the statute allows the funeral home to add the cost of embalming, refrigeration, and/or sheltering of remains to the final funeral bill. 
• In the event of a dispute where none of the parties seek the intervention of the probate court, Section 2108.85 authorizes the funeral home to bring a legal action in the probate court to determine who has the right of disposition.  In addition to having the authority to file a legal action, the law also provides that the funeral home may add to the funeral bill any reasonable legal fees and court costs that the funeral home incurs.  While the funeral home has the right to seek court intervention, the law also specifically provides that the funeral home does not have a duty or obligation to bring a legal action and cannot be held criminally or civilly liable for not bringing such an action. 
• Probably the most important protection for a funeral home is found in Section 2108.86 which provides to a funeral home, crematory, cemetery, and their employees the right to rely on the funeral and disposition instructions of the person that the funeral home, crematory or cemetery reasonably believes has the right of disposition.  The law further provides that if the funeral home, crematory, cemetery, or its employees are operating in good faith, they shall not be subject to criminal or civil liability or subject to disciplinary action by the Board of Embalmers and Funeral Directors for taking action in reliance upon the instructions provided to them. 
• Section 2108.87 of the right of disposition law provides that a funeral home, crematory, cemetery, or their employees have the right to independently investigate a person’s claim to hold the right of disposition.  However, although these parties have the right to make that independent investigation, the statute also specifically provides that they are under no duty to independently investigate, locate or contact persons who may hold the right of disposition.  This section, in combination with Section 2108.86, means that a funeral home may rely upon the statement of a family member claiming to hold the right of disposition and is under no obligation to independently investigate that claim.

While Ohio law provides a broad array of protection for funeral homes and funeral directors, it is still important for funeral homes to undertake several basic steps to enjoy those protections.  First, ensure that your cremation authorization form contains representations by the authorizing agent that he or she possesses the right of disposition.  The cremation authorization form found on OFDA’s website provides an apt example.

Secondly, regardless of the type of disposition, if you have a question regarding whether a family member holds the right of disposition, insist that the family member sign a “Claim of Authority to Carry Out a Disposition Under Ohio Law” form which is available on OFDA’s website.  While funeral homes are allowed to accept oral claims of family members that they have the right of disposition, it is always prudent to document such claims in a signed, written document. 

Another common sense step that a funeral home should take is to hold up the funeral and disposition if there is a dispute.  As seen above, the law permits a funeral home to refuse to proceed with a funeral and disposition in the event of a dispute.  If there is a disagreement among those with equal rights, the funeral home should avoid taking sides and advise all parties that the funeral and disposition will not proceed until the parties either sign off on a written agreement or one or more of the parties obtains a court order from the probate court.  The funeral home should take steps to preserve the body during this impasse.

Even though Ohio and other states with comprehensive right of disposition laws provide immunity and other protection to funeral homes, there are some attorneys and funeral industry consultants who caution funeral homes that these laws may not protect them if push comes to shove.  This is not the case.  As long as the funeral home follows the requirements of the statute, immunity will be provided. 

A good example of how immunity works to protect funeral homes was found in the recent Illinois case of Carlson v. Glueckert Funeral Home.  In that case, there was a dispute among two adult children as to the disposition of their mother.  When confronted with the dispute between the children, the funeral home informed the parties that the funeral would be delayed.  After neither party took any action to resolve their dispute, the funeral home returned the unembalmed body to the coroner’s office.  Although the court eventually gave the right of disposition to the son who held his mother’s health care power of attorney, the delay resulted in extensive decomposition of the body.  The family member with the right of disposition then sued the funeral home as a result of the decomposition.

The Illinois court noted that the right of disposition law in Illinois provides immunity to a funeral home for refusing to accept, inter, or otherwise dispose of a decedent’s remains while there is a dispute among family members.  Citing that immunity statute, the court held that the funeral home could not be sued for the decomposition because it was simply exercising its right to refuse to accept the body during the pendency of the dispute.  The immunity section of Illinois’ right of disposition law, which is similar to Ohio’s right of disposition law, worked to protect the funeral home from the lawsuit.

In conclusion, Ohio’s right of disposition law will protect funeral homes, crematories and cemeteries that follow the requirements of the law.  If any OFDA members have questions regarding Ohio’s right of disposition statute, please contact General Counsel Scott Gilligan at 513-871-6332.