Article on Springing Power of Attorney for Health Care

Alice Haseltine (J.D. Candidate, University of Missouri, 2015) recently published an article entitled, Last Rights Denied: Right of Sepulcher in Springing Power of Attorney for Health Care Invalidated, 79 Mo. L. Rev. 451-466 (2014).  Provided below is a portion of the article’s introduction:

A cancer patient with deteriorating health prepares for her physical and mental decline by executing a durable power of attorney for health care.  The form grants the patient’s agent both the right to make health care decisions during the patient’s lifetime and the “right of sepulcher” – the authority to control the final disposition of the patient’s body.  The powers in the form are “springing,” meaning the authority of the agent is ineffective until the patient is certified as having lost her mental capacity.  The patient dies shortly thereafter in an accidental and instantaneous death.  Because the patient was not incapacitated prior to her death, the durable power remains ineffective, and the agent is refused the right to dispose of the patient’s body. While this result is unexpected, it reflects the current state of the law in Missouri.

A recent decision from the Missouri Court of Appeals, In re Estate of Collins, holds that when a competent principal under a durable power dies suddenly without the required doctor’s certification of incapacity, the agent’s right of sepulcher does not vest, and therefore, the agent is never granted authority to dispose of the principal’s remains.  The practical effect of this decision is to invalidate the rights of sepulcher in prevalent springing durable powers of attorney for health care.  In light of this decision, all existing springing durable powers of attorney for health care in Missouri should be revisited to ensure that the instruments give effect to the principals’ intentions regarding the disposition of their remains.  Additionally, the Missouri legislature should enact legislation that will remedy durable powers of attorney for health care that were drafted prior to Collins.