ANTEMORTUM CREMATION AUTHORIZATION FORM
OF LITTLE VALUE
By T. Scott Gilligan
OFDA General Counsel
In 1998, Ohio updated its cremation law by incorporating into Chapter 4717 major provisions of CANA’s Model Cremation Law. Part of the CANA Model Cremation Law included an antemortum cremation authorization provision which allows an individual the power to pre-authorize the cremation of his or her remains upon death.
While many would argue that a person should have the right to decide the ultimate disposition of his or her body upon death, the problem with adopting the CANA Model Cremation Law is that it created a dichotomy between cremation and all other forms of disposition in Ohio. With the adoption of the CANA Model Cremation Law, a person could authorize their own disposition, but only if it was cremation. There was no similar self-authorization provision for burial or other forms of disposition. Moreover, the new Ohio cremation law established a priority list of who could serve as the authorizing agent for cremation which was different than the priority list that the courts had established for who could authorize burial and other forms of disposition.
Beyond the different priority lists established for cremation and other forms of disposition, it soon became apparent that the Antemortum Cremation Authorization Form (the “Antemortum Form”) had its own shortcomings. The principal purpose of the Antemortum Form was to give an individual a mechanism to authorize his or her own cremation. However, the Ohio cremation law allowed a surviving spouse, children, parents, siblings, or other next-of-kin to revoke the Antemortum Form after death. Therefore, even though an individual who signed the Antemortum Form opted for cremation, any surviving relative had the right to revoke that choice.
Another drawback to the Antemortum Form was that it did not address issues such as positive identification of the body or implanted medical devices. In regular cremation arrangements, the authorizing agent is required by the Cremation and Disposition Authorization Form to make positive identification of the decedent and to disclose and authorize the removal of any medical device which could cause harm to crematory operators or equipment. There are no such disclosures in the Antemortum Form. Moreover, the Ohio cremation law provides that if an Antemortum Form is signed, the cremation may proceed without the need for a Cremation and Disposition Authorization. Therefore, in the case of an Antemortum Form, there is neither positive identification of the decedent nor updated disclosures regarding the presence of medical devices.
Fortunately, some of the shortcomings of the Antemortum Form in the Ohio cremation law were addressed when OFDA sponsored legislation that resulted in the right of disposition law which is found in Section 2108.70 et. seq. of the Ohio Revised Code. The right of disposition law, which took effect in 2006, established a comprehensive priority list of who holds the right of disposition. That priority list applies to all forms of disposition. Therefore, regardless of the type of disposition that is selected, the priority list in Section 2108.81 controls.
The second major improvement made by the right of disposition law is that it created a mechanism for an individual to control the disposition of his or her remains after death. Under Section 2108.72 of the Ohio Revised Code, an individual may enter into an Appointment of Representative form under which the individual can appoint a Representative to carry out the funeral and disposition. That Representative has the top priority in selecting the funeral and disposition arrangements. Therefore, unlike the Antemortum Form, the Appointment of Representative form cannot be superseded at death by surviving relatives. As a result, it is a far more effective instrument for an individual to use if he or she wants to insure that their remains are cremated after death.
Because of the shortcomings of the Antemortum Form and the effectiveness of the Appointment of Representative form, OFDA members are encouraged to use the Appointment of Representative form whenever an individual planning their own cremation expresses a concern about whether surviving family members will carry out his or her wishes. That individual should be encouraged to use the Appointment of Representative form to appoint a trusted family member or friend to carry out their cremation wishes. If OFDA members do not have an Appointment of Representative form in their files, one can be downloaded from www.ofdaonline.org .
OFDA members with questions regarding this article may contact General Counsel Scott Gilligan at 513-871-6332.