12/17/2008

Issues Under The Right of Disposition Law

By T. Scott Gilligan, OFDA General Counsel

Below we address several questions we have received from members.

1.
We know that a spouse who is divorced loses the right of disposition. However, may a surviving ex-spouse with custody of the minor children direct the disposition for the deceased ex-spouse if he or she is acting as the custodian for the minor children?

No.
In order to have the right of disposition under Section 2108.81(B) of the Ohio Revised Code, the children must be adults (18 years or older). Minor children have no right of disposition under the law. Therefore, if the deceased ex-spouse had no children who were 18 years or older, the right of disposition would pass down to the deceased spouse's surviving parent or parents.

2.
An adult daughter had a valid power of attorney from her mother who was incompetent. The power of attorney allowed her to enter into contracts on behalf of her mother. She wanted to use the power of attorney to fill out an Appointment of Representative form to appoint herself as the representative to carry out the disposition of her mother when her mother died. Should she be allowed to execute the Appointment of Representative form on behalf of her mother since she had a valid power of attorney?

No.
Under Section 2108.70(B), only an adult who is of "sound mind" may execute an Appointment of Representative form. Since the mother was incompetent, she could not sign and no one could sign on her behalf. Once a person becomes incompetent, there is no way for an Appointment of Representative form to be executed on their behalf.

3.
We had a case where an elderly gentleman died and his wife was incapacitated and in a nursing home. The guardian for the widow wanted to make funeral arrangements for the deceased spouse on behalf of the incapacitated widow. May a guardian exercise the right of disposition on behalf of the incapacitated ward?

No.
In order to exercise the right of disposition under Section 2108.81(B), the individual exercising that right must be a "mentally competent adult." Since the widow was mentally incompetent, she loses the right and the next person down the priority list would have the right of disposition.

4.
We had an elderly woman who has no family come to the funeral home and enter into a preneed contract. She wanted to appoint the funeral director who made the arrangements as her representative to carry out the disposition. Could she do this with an Appointment of Representative form?

No.
Under Section 2108.75(B), owners, employees and agents of funeral homes, cemeteries and crematories may not be appointed as a representative unless they are related by blood, marriage, or adoption to the individual signing the Appointment of Representative form. However, once the elderly woman died, if there are no family members, the funeral director could exercise the right of disposition under Section 2108.81(B)(8) if the funeral director attests in writing that he or she was unable to locate any persons on the priority list after exercising a good faith effort.


5.
A couple in town had split up years ago. However, because of religious reasons, they did not divorce. Instead, they obtained a legal separation from the court and lived in separate residences. The man has now died and the question arises as to whether the woman is still the decedent's wife who holds the right of disposition?

The woman in this case would be the wife and, if the husband did not appoint a representative to carry out the right of disposition during his lifetime, the wife would hold the right of disposition. In order to lose the right of disposition, an action must be pending to terminate the marriage at the time of the death of the spouse. This means that an action for a divorce or an annulment must be pending when the spouse dies. A legal separation is not regarded as a termination of the marriage. Therefore, couples who are legally separated are still considered to be married and would not lose the right of disposition.
In this particular case, an action could be brought in probate court to take away the right of disposition from the wife based upon the claim the couple was "estranged." Under Section 2108.77, anyone may file an action in probate court claiming the spouses were estranged at the time of death. The probate court must then decide whether at the time of death the spouses had been "physically and emotionally separated from each other for a period of time that clearly demonstrates an absence of due affection, trust and regard." If the probate court makes that finding, the wife in the case would lose the right of disposition and the right would pass on to the adult children of the decedent.

6.
We had an indigent individual die in our town. The township will pay for the cremation, but no one representing the township was willing to sign the cremation authorization. When we asked township officials, they claimed they were not authorized by the right of disposition law to sign the cremation authorization. Is this correct?

When the right of disposition law was enacted two years ago, public officials were inadvertently left off the priority list. OFDA is working to correct that oversight. In Senate Bill 196, which was passed by the Senate earlier this year and is now in front of the House, a provision would be added to Section 2108.81 which would provide that a public officer or an employee of a political subdivision responsible for the disposition of an indigent person would have the right of disposition.

If Senate Bill 196 is adopted, this will solve the problem.

OFDA members with questions regarding the right of disposition may contact Scott Gilligan at 513-871-6332.