Cremation, burial or court? What may happen if you don’t have a Living Will and your wishes are not clearly identified

  • April 17, 2020
  • Ellen Morris

By Ellen S. Morris, Esq., Partner, Elder Law Associates PA

Sam (not his real name) was 88 years old and in the hospital. His heart and lungs were failing, and he wasn’t eating. He lay in bed moaning and was not able to communicate his needs and wants. He was blessed with three sons who loved him dearly. All three were at his bedside. Sam owned a burial plot up north, but he did not have a Living Will and he did not have a pre-need burial or cremation contract.Elder Law Associates, Living Will, elder law Litigation

Two of his sons were horrified at seeing Sam in pain. He was wasting away from not eating but they believed from statements Sam made to them that he would not want them to prolong his death by inserting a feeding tube. They also believed that Sam would not want to be on a ventilator, nor would he want the doctors to use any measures to prolong his life.

Their brother was very religious. He believed that Sam’s life or death was in G-d’s hands and that doing anything to shorten Sam’s life or omitting doing anything to extend Sam’s life was improper under his belief. Sam, however, was not religious.

The doctors and the hospital were faced with a horrible situation. Sam did not have a document that clearly identified his end-of-life wishes and Sam’s three sons had equal authority to speak for Sam. Since the sons didn’t agree, the doctors and hospital required a court order in order to move forward.

The two sons were forced to bring an action in court to allow Sam to die naturally and I represented them. They also sought direction on burial or cremation, as Sam’s wishes on that were likewise not written down and the sons didn’t agree. They were in a legal battle with their brother while their father was dying. It was an unpleasant situation to be in. The judge decided Sam’s fate.

Please remember that your children or loved ones may have different beliefs and different values from you. Please sign a Living Will and a Last Will and Testament and include specific instructions on end-of-life measures, and on burial or cremation. Your written instructions are compelling on everyone and ensure your wishes are honored and not those of anyone else.

For more information about creating a Living Will or Last Will and Testament, contact us at 1-800-ELDERLAW or (561) 750-3850.

The information contained in this article has been prepared by Elder Law Associates PA, presents general information, is for informational purposes only, and is not, nor is it intended to be, legal advice. Before acting on any of the information presented, we advise you to consult an attorney for advice regarding your individual situation.

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Howard S. Krooks
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Ellen S. Morris
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Howard S. Krooks
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Ellen S. Morris
Rated by Super Lawyers


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Howard S. Krooks
Rated by Super Lawyers


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10.0Howard S. Krooks
10.0Ellen Sue Morris