Iowa Law Blog : Iowa Lawyer & Attorney : Sullivan & Ward Law Firm : Iowa Law Blog

Following a controversial decision by the Iowa Supreme Court and after some wrangling in the Iowa legislature, Governor Chet Culver signed SF 473 into law on April 11, 2008.  Effective July 1, 2008, this new chapter to the Iowa Code (chapter 144C) authorizes an individual to designate an individual to make decisions over the disposition of their bodily remains following their death. The designation does not indicate how a person wants their body remains to be handled, only who has the authority to make those decisions that are "reasonable under the circumstances".

Now, what is "reasonable under the circumstances"? Under the definitions section, consideration should be given to the deceased's financial situation, religious beliefs and cutural or family customs.

Also, if the designee doesn't promptly step forward and assume their responsibility, they forfeit their rights. In fact, the designee has either 24 hours after notification or 40 hours after death to exercise their authority. Iowa Code section 144C.8 After, that, the power is gone and moves to the next person on the priority list.

This new law also covers situations beyond immediate funeral arrangements. For example, disinterment or decisions about an autopsy.

I imagine most attorneys will begin placing appropriate designations on their medical power of attorney forms. Here is the suggested language to use for the declaration:

I hereby designate ................ as my designee.  My designee shall have the sole
responsibility for making decisions concerning the final disposition of my remains
and the ceremonies to be performed after my death. 

This declaration hereby revokes all prior declarations.  This designation becomes
effective upon my death.  My designee shall act in a manner that is reasonable under
the circumstances.

I may revoke or amend this declaration at any time.  I agree that a third party
(such as a funeral or cremation establishment, funeral director, or cemetery) who
receives a copy of this declaration may act in reliance on it.  Revocation of this
declaration is not effective as to a third party until the third party receives
notice of the revocation.  My estate shall indemnify my designee and any third party
for costs incurred by them or claims arising against them as a result of their good
faith reliance on this declaration.
     
I execute this declaration as my free and voluntary act.

This new chapter is a needed step by the Iowa legislature. Unfortunately, for the Stark family, it is too late. However, like many aspects of an estate plan, the usefulness of this chapter is only beneficial if the plans are communicated to those key individuals. Knowing where the document is, who the designee is and what one's wishes are can be critical to putting your final affairs in order.

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The Iowa Supreme Court recently issued a ruling granting the surviving spouse the right to disinter and reinterr her deceased husband's remains.  It seems that the widow of Joseph Stark wasn't real happy that her husband was buried next to his first wife.  After thinking a few months about it, she decided to have him dug up and moved to a new cemetery to be buried with his parents.  The kids from the first marriage did not take too kindly to having dad and mom separated, so the battle was on.

Based on Iowa Code § 144.34, the Court found that if the state issues the permit with the consent of the surviving spouse, a court cannot override that permit.  The procedure to get a permit only requires that a spouse, or the next of kin if there is no surviving spouse, apply for a permit for purposes of autopsy or reburial.

All the Stark children need to do now is wait until step-mom passes, then go back to the State of Iowa for a permit to dig dad up again and move him back.  This sounds like a good process to keep grave diggers in business.

A better approach would be to enact legislation enabling an individual to select their designee to make the decision over disposition of their body remains.  This allows the individual to make the decision over what happens to their body by choosing who makes that decision.  Until then, communicate with ALL of your family as to your wishes and hopefully they will honor your intentions.

Is there is no peace in death?

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