Wednesday, December 03, 2008

New Planning Tool Available in Ohio

In the past, some people stated their burial preferences in their last will and testament. Although they were stating their intentions, that practice was ineffective. First, most funerals and the disposition of bodily remains would occur before the will was admitted to probate. Second, there was no legal authority holding that those wishes would be enforceable. Now, in Ohio, there is legal authority and practitioners and clients should be aware of this recent planning tool.

Ohio has enacted a statutory form for a person to appoint a representative to make decisions regarding the disposition of bodily remains and funeral decisions. The statute provides a prototype form.[1] The representative is, immediately upon the death of the declarant, vested with the authority to make these decisions.

Not all clients will necessarily feel that this form is necessary. These clients are comfortable that their family is familiar with their wishes and that they will follow those wishes. On the other hand, there are many situations where this form is ideal and people should be aware of its existence. Circumstances that might make this a useful tool are:
1. a second marriage with children from a prior marriage;
2. the client is unmarried and has no children;
3. the client has children who do not get along; and
4. same sex couples.

[1] See Ohio Revised Code Section 2108.72, with effective date of 10/12/2006.

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