First and foremost, I recommend that you have an open discussion with your family about the disposition of your remains. These are very sensitive issues and there is no substitute for a well- informed family. New York State law, however, does provide a mechanism for you to express your wishes in writing.
Section 4201 of the Public Health Law, for anyone that cares to read it, provides a form that allows you to appoint an agent to control the disposition of your burial remains. This form is analogous to a health care proxy and is often used where an individual has very specific wishes that may be uncommon or that may not be adhered to by surviving family members. For instance, you may want to complete a burial remains form if you would like to be buried with your pets, which is now permissible in certain pet cemeteries. Other uses might include expressing your desire to not be embalmed or to be cremated. If you intend to donate your organs for scientific research, this is a good place for that as well, but I would also recommend registering as an organ donor and notifying the organization you intend to benefit.
If, for some reason, your agent cannot act, perhaps by reason of incapacity or death, the statute creates a hierarchy of persons who can act on your behalf, beginning with your spouse or domestic partner. Interestingly, the statute prohibits anyone having something to do with the cause of your death from acting as agent. I wonder what the social policy is behind that portion of the statute?
When combined with a properly drafted estate plan, a burial remains form can ensure that your final wishes are honored.
Salvatore M. Di Costanzo is a partner with the firm of Maker, Fragale & Di Costanzo, LLP located in Rye, New York, and Yorktown Heights, New York. Mr. Di Costanzo is an attorney and accountant whose main area of practice is elder law and special needs planning. He is a member of the National Academy of Elder Law Attorneys and a frequent author and lecturer on current elder law and special needs topics. Since 2013, Mr. Di Costanzo has been selected each year by the rating service, Super Lawyers as a New York Metro leading elder law attorney. He can be reached at (914) 925-1010 or via e-mail at smd@mfd-law.com. Visit his practice specific website at www.plantodayfortomorrow.com.
