Can someone with power of attorney change my burial or cremation plans in a prepaid funeral contract?

TX AG Opinion GA-0720: Can a power-of-attorney agent change your funeral plans?

Plain-English summary

The Texas Banking Commissioner, whose department regulates prepaid funeral services, asked whether an agent under a statutory durable power of attorney may change the method of disposition of a person's body that the person already specified in a prepaid funeral contract. The opinion assumed the person had bought and fully paid for a contract specifying the disposition method, had also signed a statutory durable power of attorney under the Probate Code, and had since become incapacitated. The power of attorney covered property and financial matters, not specifically decisions about disposition of remains.

On the first question, whether the agent may change the method (for example, from burial to cremation), the opinion said no. The disposition of a person's remains is governed by Health and Safety Code section 711.002. A person may give written directions for disposition in a will, a prepaid funeral contract, or a signed and acknowledged instrument, and those directions "may be modified or revoked only by a subsequent writing signed and acknowledged by such person." The person otherwise entitled to control disposition has a duty to carry out the decedent's directions, and the directions prevail over the preferences of the designee and relatives. Because only the person who made the directions can change them, the opinion concluded a court would probably hold that the agent under the durable power of attorney may not change the disposition method specified in the prepaid funeral contract.

On the second question, whether the agent's cancellation of the prepaid funeral contract also cancels the disposition directive, the opinion again said no. Assuming the power of attorney authorized the agent to cancel the contract and the purchaser had not waived the right to cancel, the opinion explained that canceling the contract is not "a subsequent writing signed and acknowledged by" the person regarding disposition of the remains. So if the agent cancels the prepaid funeral contract, the person's written directive in the contract about disposition is not changed or canceled.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion relied on the Probate Code's Durable Power of Attorney Act, which Texas has since recodified into the Estates Code, and on Health and Safety Code section 711.002, which has been amended. Do not rely on the specific section numbers or rules here without checking current law.

Who this opinion affected (as of 2009)

People who prepaid for their own funerals: The opinion explained that the disposition method they put in a prepaid funeral contract could be changed only by their own later signed and acknowledged writing, not by an agent under a durable power of attorney.

Agents under durable powers of attorney: The opinion described the limit on their authority: even an agent who could cancel a prepaid funeral contract could not override the principal's disposition directive, and canceling the contract did not erase that directive.

Funeral providers and the Department of Banking: The opinion clarified how section 711.002(g) interacts with a prepaid funeral contract and a durable power of attorney, which bears on how providers handle conflicting instructions.

Common questions

Can my agent switch my burial to cremation if I'm incapacitated?
According to the opinion, no. If you specified the method in a prepaid funeral contract, only your own later signed and acknowledged writing can change it, not your power-of-attorney agent.

If my agent cancels the prepaid funeral contract, are my wishes gone too?
No. The opinion explained that canceling the contract is not a signed, acknowledged writing by you about disposition, so your written directive about how your remains are handled survives the cancellation.

Who controls disposition if I leave written directions?
The opinion explained that your written directions prevail over the preferences of the person you designate and your relatives, and that the person otherwise entitled to control disposition must carry out your directions.

Does this apply if the power of attorney specifically covers funeral decisions?
The opinion did not address that situation. It expressly assumed a durable power of attorney that did not authorize the agent to make decisions about disposition of the principal's remains.

Background and statutory framework

The Department of Banking regulates prepaid funeral services (Tex. Fin. Code Ann. ch. 154 (Vernon 2006 & Supp. 2008)), and a prepaid funeral contract may provide for final disposition of remains (id. § 154.002(13) (Vernon 2006)). A statutory durable power of attorney under the Probate Code lets an agent act on the principal's property and financial matters and any action the principal could take (Tex. Prob. Code Ann. §§ 481-482, 490(a) (Vernon 2003)).

Disposition of remains is governed by Health and Safety Code section 711.002, under which a person may give written directions for disposition in a will, prepaid funeral contract, or signed and acknowledged instrument, modifiable or revocable "only by a subsequent writing signed and acknowledged by such person" (Tex. Health & Safety Code Ann. § 711.002(a), (g) (Vernon 2003)). Those directions take priority over any other person's right to control disposition (Carruth v. SCI Tex. Funeral Servs., Inc., 221 S.W.3d 134, 138 (Tex. App.-Houston [1st Dist.] 2006, no pet.)). Reading the statute by its unambiguous terms (Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)), the opinion concluded the agent may not change the method, and that the agent's cancellation of the contract (see id. §§ 154.155, 154.156 (Vernon 2003)) is not such a signed, acknowledged writing, so it does not cancel the disposition directive.

Citations

Statutes:

• Tex. Fin. Code Ann. ch. 154 (Vernon 2006 & Supp. 2008); §§ 154.002(13) (Vernon 2006), 154.155, 154.156 (Vernon 2003)
• Tex. Prob. Code Ann. §§ 481-482, 490(a) (Vernon 2003)
• Tex. Health & Safety Code Ann. § 711.002(a), (g) (Vernon 2003)

Cases:

• Carruth v. SCI Tex. Funeral Servs., Inc., 221 S.W.3d 134 (Tex. App.-Houston [1st Dist.] 2006, no pet.)
• Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637 (Tex. 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0720
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0720.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

June 2, 2009

Mr. Charles G. Cooper
Banking Commissioner
Texas Department of Banking
2601 North Lamar Boulevard
Austin, Texas 78705

Opinion No. GA-0720

Re: Whether an agent under a statutory durable power of attorney may alter the method of disposition of a person's body previously specified by that person in a prepaid funeral contract (RQ-0768-GA)

Dear Commissioner Cooper:

The Texas Department of Banking regulates the sale of prepaid funeral services and merchandise. See TEX. FIN. CODE ANN. ch. 154 (Vernon 2006 & Supp. 2008). A contract for prepaid funeral services may provide for the final disposition of an individual's remains. See id. § 154.002(13) (Vernon 2006); see also Tex. Att'y Gen. Op. No. JC-0279 (2000) at 3-4 (defining "disposition" to include burial, cremation, or other method by which a person's remains attain their final resting place). We are asked to assume for the purposes of our analysis that an individual has purchased and fully paid for a prepaid funeral contract that specifies the method for disposition of his or her remains and the individual has also executed a statutory durable power of attorney under Probate Code, chapter XII, the Durable Power of Attorney Act.[1] TEX. PROB. CODE ANN. § 481 (Vernon 2003). We are to assume that the individual, who purchased the prepaid funeral contract before the durable power of attorney took effect, has become incapacitated. See Request Letter at 5-6; see also TEX. PROB. CODE ANN. § 490(a) (Vernon 2003) (a durable power of attorney may provide that it is not affected by the principal's subsequent disability or incapacity or that it will become effective upon the principal's disability or incapacity).[2]

The first question is as follows:

1. May the agent under a statutory durable power of attorney change the method of disposition, e.g., from burial to cremation, specified by the purchaser/principal in a prepaid funeral contract?

Request Letter at 1. Chapter XII of the Probate Code allows a person, the "principal," to authorize an agent or attorney-in-fact to take action with respect to the principal's property and financial matters, claims and litigation, and tax matters. See TEX. PROB. CODE ANN. §§ 481-82, 490(a) (Vernon 2003). The principal may also authorize the agent to undertake any action the principal could undertake. See id. § 490(a).

The disposition of a person's remains is governed by section 711.002 of the Health and Safety Code, which provides in part:

(a) Unless a decedent has left directions in writing for the disposition of the decedent's remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent's remains, shall inter the remains, and are liable for the reasonable cost of interment:

(1) the person designated in a written instrument signed by the decedent;

(2) the decedent's surviving spouse;

[(3)-(6) certain other relatives of the decedent].

...

(g) A person may provide written directions for the disposition, including cremation, of the person's remains in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by such person. ... The directions may be modified or revoked only by a subsequent writing signed and acknowledged by such person. ...

TEX. HEALTH & SAFETY CODE ANN. § 711.002(a), (g) (Vernon 2003) (emphasis added). Where the purchaser of a prepaid funeral contract provides directions for the disposition of his or her remains in the prepaid funeral contract, the "person otherwise entitled to control the disposition of a decedent's remains under this section [711.002] shall faithfully carry out the directions of the decedent to the extent that the decedent's estate or the person controlling the disposition are financially able to do so." Id. § 711.002(g).[3] Thus, the person otherwise entitled to control the disposition of a decedent's remains has a duty to carry out the decedent's directions for disposition of his or her remains. In addition, section 711.002(g) provides that a person's written directions for the disposition of his or her remains may be modified only by a subsequent writing signed and acknowledged by such person. See id. § 711.002(g). Accordingly, a person's written directions for disposition of the person's remains in a prepaid funeral contract will prevail over the preferences of the designee and relatives listed in section 711.002(a), and only the person who prepared such written directions may change them.

The single Texas case addressing section 711.002(g) in connection with a statutory durable power of attorney does not involve an attempt to change the decedent's written directions for disposition of her remains. See Carruth v. SCI Tex. Funeral Servs., Inc., 221 S.W.3d 134 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (agent under a durable power of attorney signed a prepaid funeral contract for the principal, who had not made funeral arrangements). This case states that a decedent's written instructions for disposition of his or her remains pursuant to section 711.002(g), "by the plain language of section 711.002(a), take priority over any other person's right to control the disposition of the remains." Id. at 138.

Pursuant to the plain language of section 711.002(g), an individual has the right to control the disposition of his or her remains by providing written directions, which prevail over any other person's right to make that decision. In our opinion, a court would probably hold that a person's directions in a prepaid funeral contract for disposition of his or her remains may not be changed by an agent who holds a statutory durable power of attorney under Probate Code chapter XII.

The second question is as follows:

2. If the agent under a statutory durable power of attorney cancels a prepaid funeral contract purchased by the principal, does this also cancel the principal's written directive regarding disposition?

Request Letter at 1. We are to assume that the purchaser has not waived his or her right to cancel the contract. See id. at 6; see also TEX. FIN. CODE ANN. §§ 154.155 (Vernon 2003) (cancellation of prepaid funeral contract), 154.156 (waiver of right to cancel contract). We also assume that the statutory durable power of attorney authorizes the agent to cancel a prepaid funeral contract purchased by the principal. Section 711.002(g) provides that a person's written directions for the disposition of his or her remains "may be modified or revoked only by a subsequent writing signed and acknowledged by such person." TEX. HEALTH & SAFETY CODE ANN. § 711.002(g) (Vernon 2003); see Tex. Att'y Gen. Op. No. JC-0279 (2000) at 3 (construing section 711.002(g)). Cancellation of the prepaid funeral contract by the agent under a statutory durable power of attorney is not "a subsequent writing signed and acknowledged by" the person with respect to the disposition of his or her remains. Accordingly, if the agent under a statutory durable power of attorney cancels a prepaid funeral contract purchased by the principal for him or herself, the principal's written directive in the contract regarding disposition of his or her remains is not changed or cancelled. See Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004) (if the statutory language is unambiguous, we must interpret it according to its terms).

SUMMARY

Where an individual specifies the method of disposition of his or her remains in a fully paid funeral contract of which he or she is the purchaser and beneficiary, the individual's agent under a statutory durable power of attorney may not change the method of disposition. If the agent under a statutory durable power of attorney cancels a prepaid funeral contract purchased by the principal for him or herself, the principal's written directive in the contract regarding disposition of his or her remains is not canceled.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: We do not address a statutory durable power of attorney that authorizes the agent to make decisions about the disposition of the principal's remains.]

[Footnote 3: Because these questions relate to a fully-paid funeral contract, no issue is raised as to financial ability to carry out the decedent's written instructions for disposition of his or her remains. See Request Letter at 1.]