Last rights denied: right of sepulcher in springing power of attorney for health care invalidated.

• Author: Haseltine, Alice
• Position: Missouri - Case note

In re Estate of Collins, 405 S.W.3d 602 (Mo. App. W.D. 2013)

1. 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. (1) 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. (2) 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. (3)

   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. (4) 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.

2. FACTS AND HOLDING

   On June 12, 2012, Betty Jean Collins executed a Durable Power of Attorney for Health Care Choices and Heath Care Directive. (5) Four short days later, Collins was involved in an automobile collision. (6) She died instantaneously, and a legal battle over the disposition of Collins' body ensued between her daughters, Robyne Ridley-McKinney and Charlotte Ridley, and her grandniece, Tina Shoemaker. (7)

   Collins' durable power of attorney was stock--provided free by a local health clinic--and appointed Collins' grandniece, Tina Shoemaker, "as [her] agent for health care choices when [she is] unable to make decisions or communicate her wishes." (8) The document provided, "This durable power of attorney becomes effective when two physicians certify that I am incapacitated and unable to make and communicate health care choices." (9) The document additionally explained, "You may choose to have one physician, instead of two, determine whether you are incapacitated. If you wish to exercise this option ... initial here." (10) Collins initialed the provision, indicating that a single physician's certification would be sufficient to give effect to the document's provisions. (11) When effective, this instrument afforded Collins' agent certain powers to:

   --Consent, refuse or withdraw consent to artificially supplied nutrition and hydration.

   --Make all necessary arrangements for health care on [Collins'] behalf. This includes admitting [Collins] to any hospital, psychiatric treatment facility, hospice, nursing home or other health care facility.

   --Hire or fire health care personnel on [Collins'] behalf.

   --Request, receive and review [Collins'] medical and hospital records. Take legal action if necessary to do what [Collins] directed.

   --Carry out [Collins'] wishes regarding autopsy and organ donation, and decide what should be done with [her] body. (12)

   Upon Collins' death, Shoemaker exercised the power of sepulcher that she believed was granted to her by Collins' durable power of attorney and made arrangements to have Collins' body cremated. (13) The Ridleys, who desired to have their mother buried in a family burial plot, contested the action, filing a Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction to restrain Shoemaker from proceeding with cremation. (14) The Circuit Court of Benton County issued the temporary restraining order and heard arguments for preliminary and permanent injunctions. (15)

   The Ridleys argued that an injunction was proper because Shoemaker never had authority to act as Collins' attorney in fact under the durable power of attorney. (16) The Ridleys asserted that, because a physician did not certify Collins' incapacity, the agent's authority failed to take effect. (17) In the absence of an attorney in fact, the Ridleys contended that they--as Collins' daughters and closest kin--had the authority to determine the disposition of their mother's body. (18)

   Shoemaker argued that she had the authority to decide the disposition of Collins' body because a physician's certification of incapacity was not required to give effect to the provision that allowed Collins' agent to "decide what should be done with [her] body." (19) Shoemaker contended that an alternative interpretation of this provision would be contrary to statutory language that gives an attorney in fact under a durable power of attorney a priority to exercise the right of sepulcher on behalf of the principle. (20) Further, Shoemaker presented testimony indicating that Collins desired to be cremated and that Collins executed the durable power of attorney to ensure that her burial preferences would be observed. (21) Shoemaker argued that the court's interpretation of the document should effectuate these apparent intentions. (22)

   The trial court found the durable power of attorney effective and granted Shoemaker the right to Collins' remains. (23) The court did not elaborate on its reasoning; however, the court did observe from the bench, "[I]t does say the power of attorney becomes effective when two physicians certify ... [that an individual is] unable to communicate health care choices. I'm kind of thinking the coroner saying 'this person's dead' probably takes the place of that." (24)

   The Ridleys filed an appeal in the Missouri Court of Appeals Western District. (25) Upon review, the instant court held that if a durable power of attorney explicitly provides that the agent's authority does not take effect until a physician conclusively determines incapacitation, and if the individual dies in a manner that is not preceded by a documented period of incapacity, the requisite condition precedent remains unsatisfied, and the agent's authority under the durable power of attorney does not go into effect. (26)

3. LEGAL BACKGROUND

   1. A Property Right in the Human Body--The Historical Right of Sepulcher

      The right of sepulcher is "the right to choose and control the burial, cremation, or other final disposition of a human body." (27) While the modern right of sepulcher is narrowly defined and widely acknowledged, the history of this right reveals courts' disagreement regarding the existence and scope of property rights in human remains. (28)

      As early as 1690, John Locke proposed that an individual holds a property right in his body. (29) Yet, English common law declined to extend this concept to the recognition of property rights in human remains. (30) The idea that there could be a property right in human remains presented a procedural obstacle for the English court system: common law courts exercised jurisdiction over property, while the ecclesiastical courts had jurisdiction over matters pertaining to the human body. (31) The proposition that property rights exist in human remains blurred the lines between two distinct procedural realms. (32)

      Reluctantly, American courts followed English precedent and declined to recognize a property right in human remains. (33) A 1912 decision from West Virginia is representative of the early American aversion to the British no-property rule: (34)

      The real question is not the disposable, marketable value of a corpse or its remains, as an article of traffic, but it is of the sacred and inherent right to its custody, in order to decently bury it and secure its undisturbed repose. The dogma of the English ecclesiastical law, that a child has no such claim, no such exclusive power, no peculiar interest in the dead body of its parent, is so utterly inconsistent with every enlightened perception of personal right, so inexpressibly repulsive to every proper moral sense, that its adoption would be an eternal disgrace to American jurisprudence. (35) American courts' desire to abandon the British no-property rule (36) was magnified by the abandonment of the ecclesiastical courts in England (37) and the need for statutes regulating the disposal of bodies and recognizing damages for the disfigurement of human remains. (38) Despite disfavor for the British rule, American courts struggled to find a legal basis for the recognition of a property right in human remains. (39) A uniform theory was not adopted. (40) Some jurisdictions allowed recovery for injuries arising from the mistreatment of human remains through tort theory, (41) and a second group of jurisdictions redressed injuries through recognition of a quasi-property right in human remains. (42)

      Jurisdictions that permitted recovery in tort for the mistreatment of human remains recognized some combination of the following causes of action: intentional mishandling of a human corpse, abuse of a dead body, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent or wrongful interference with a dead body. (43) While a plaintiffs options for bringing an action against a corpse were seemingly numerous, so too were the courts' restrictions on recovery. (44) Some courts required that plaintiffs prove awareness of the defendant's willful, wanton, and outrageous conduct. (45) Other courts refused to allow plaintiffs to recover when the defendant's behavior was merely...