Legally Speaking - Funeral Homes and Burial Arrangements - Know Your Rights

Legally Speaking - Funeral Homes and Burial Arrangements - Know Your Rights
By Roger McCaffrey-Boss
Copyright by Gay Chicago Magazine and Roger McCaffrey-Boss


Q: My lover and I have very specific plans for our burial services when we die. My lover wants to be cremated without any church or religious service. I would like to leave detailed instructions for the music and ritual. The last thing we want is for our families to come to Chicago and make their own arrangements, contrary to our wishes. What can we do to make sure that each of us can make the burial arrangements for the other and ensure that our wishes are honored? Are there any problems we can run into with funeral homes or the funeral director?

A: The law states that when you die, your lover has no legal right to make burial arrangements for you, taking a back seat to family and relatives. Pursuant to the Disposition of Remains Act, effective January 1, 2006, unless a decedent has left directions in writing for the disposition of the decedent’s remains as provided in the Crematory Regulation Act, only certain persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent’s remains. None of them listed include your LGBT partner.

The Disposition of Remains Act, however, does not reference an agent under a Health Care Power of Attorney as a designated agent. To my knowledge, no corrective legislation is pending at this time. To avoid potential conflict, it is recommended that the Disposition of Remains document be coordinated with the Health Care Power of Attorney document in naming agents, especially your LGBT partner.

Also be aware of possible funeral home discrimination against a deceased individual or their lover and family members when the cause of death is HIV-related. The discrimination may be blatant, as when a funeral director outright refuses to handle a person who has died of an HIV-related illness. Or the discrimination may be subtle, as when a funeral director charges an extra fee to handle a person who died of an HIV-related illness, and the funeral director passes the additional charge on to the family or surviving life partner. In either case, these blatant and subtle forms of discrimination are unlawful.

You have a right to funeral services without discrimination. First, because it is unlawful to discriminate against persons with HIV and because funeral services are places of public accommodation, it is unlawful to refuse to handle the case of a person who dies of an illness related to HIV. Funeral homes that charge more to handle a person who died of HIV violate the human rights laws and, in some jurisdictions, specific statutes that make it illegal to charge more to embalm the remains of a person with a communicable disease.

Second, it is discriminatory to suggest that a person who died of an illness related to HIV must be cremated or that the memorial service must be with a closed casket. Thousands of funerals across the country have proven that the full range of options should be offered.

Roger McCaffrey-Boss is a graduate of Hamline University School of Law, St. Paul, Minnesota, and is a member of the Chicago Bar Association. You can e-mail him at RVMLAWYER@aol.com. He suggests that you consult your own lawyer for any specific questions regarding the issues raised in this column.