Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 2,2009
Mr. Charles G. Cooper Opinion No. GA-0720
Banking Commissioner
Texas Department of Banking Re: Whether an agent under a statutory durable
2601 North Lamar Boulevard power of attorney may alter the method of
Austin, Texas 78705 disposition of a person's body previously
specified by that person in a prepaid funeral
contract (RQ-0768-GA)
Dear Commissioner Cooper:
The Texas Department of Banking regulates the sale of prepaid funeral services and
merchandise. See TEx. FIN. CODE ANN. ch. 154 (Vernon 2006 & Supp. 2008). A contract for
prepaid funeral services may provide for the final disposition of an individual's remains. See id
§ 154.002(13) (Vernon 2006); see also Tex. Att'y Gen. Op. No. JC-0279 (2000) at 3-4 (defining
"disposition" to include burial, cremation, or other method by which a person's remains attain their
final resting place). We are asked to assume for the purposes of our analysis that an individual has
purchased and fully paid for a prepaid funeral contract that specifies the method for disposition of
his or her remains and the individual has also executed a statutory durable power of attorney under
Probate Code, chapter XII, the Durable Power of Attorney Act.! TEx. PROB. CODE ANN. § 481
(Vernon 2003). We are to assume that the individual, who purchased the prepaid funeral contract
before the durable power of attorney took effect, has become incapacitated. See Request Letter at
5-6; see also TEx. PROB. CODE ANN. § 490(a) (Vernon 2003) (a durable power of attorney may
provide that it is not affected by the principal's subsequent disability or incapacity or that it will
become effective upon the principal's disability or incapacity).2
The first question is as follows:
1. May the agent under a statutory durable power of attorney change the
method of disposition, e.g., from burial to cremation, specified by the
purchaser/principal in a prepaid funeral contract?
lRequest Letter at 1-2 (available at http://www.texasattorneygeneral.gov).
2We do not address a statutory durable power of attorney that authorizes the agent to make decisions about the
disposition of the principal's remains.
Mr. Charles G. Cooper - Page 2 (GA-0720)
Request Letter at 1. Chapter XII of the Probate Code allows a person, the "principal," to authorize
an agent or attorney-in-fact to take action with respect to the principal's property and financial
matters, claims and litigation, and tax matters. See TEx. PROB. CODE ANN. §§ 481-82, 490(a)
(Vernon 2003). The principal may also authorize the agent to undertake any action the principal
could undertake. See id. § 490(a).
The disposition of a person's remains is governed by section 711.002 of the Health and
Safety Code, which provides in part:
(a) Unless a decedent has left directions in writing for the
disposition of the decedent's remains as provided in Subsection (g),
the following persons, in the priority listed, have the right to control
the disposition, including cremation, of the decedent's remains, shall
inter the remains, and are liable for the reasonable cost of interment:
(1) the person designated in a written instrument signed
by the decedent;
(2) the decedent's surviving spouse;
[(3}-(6) certain other relatives of the decedent].
(g) A person may provide written directions for the
disposition, including cremation, of the person's remains in a will, a
prepaid funeral contract, or a written instrument signed and
acknowledged by such person. . .. The directions may be modified
or revoked only by a subsequent writing signed and acknowledged by
such person....
TEx. HEALTH & SAFETY CODE ANN. § 711.002(a), (g) (Vernon 2003 ) (emphasis added). Where the
purchaser of a prepaid funeral contract provides directions for the disposition of his or her remains
in the prepaid funeral contract, the "person otherwise entitled to control the disposition of a
decedent's remains under this section [711.002] shall faithfully carry out the directions of the
decedent to the extent that the decedent's estate or the person controlling the disposition are
financially able to do so." ld. § 711.002(g).3 Thus, the person otherwise entitled to control the
disposition of a decedent's remains has a duty to carry out the decedent's directions for disposition
of his or her remains. In addition, section 711.002(g) provides that a person's written directions for
the disposition of his or her remains may be modified only by a subsequent writing signed and
3Because these questions relate to a fully-paid funeral contract, no issue is raised as to financial ability to carry
out the decedent's written instructions for disposition of his or her remains. See Request Letter at 1.
Mr. Charles G. Cooper - Page 3 (GA-0720)
acknowledged by such person. See id. § 711.002(g). Accordingly, a person's written directions for
disposition of the person's remains in a prepaid funeral contract will prevail over the preferences of
the designee and relatives listed in section 711.002(a), and only the person who prepared such
written directions may change them.
The single Texas case addressing section 711.002(g) in connection with a statutory durable
power of attorney does not involve an attempt to change the decedent's written directions for
disposition of her remains. See Carruth v. SCI Tex. Funeral Servs., Inc., 221 S.W.3d 134 (Tex.
App.-Houston [1 st Dist.] 2006, no pet.) (agent under a durable power of attorney signed a prepaid
funeral contract for the principal, who had not made funeral arrangements). This case states that a
decedent's written instructions for disposition of his or her remains pursuant to section 711.002(g),
"by the plain language of section 711.002(a), take priority over any other person's right to control
the disposition of the remains." Id. at 138.
Pursuant to the plain language of section 711.002(g), an individual has the right to control
the disposition of his or her remains by providing written directions, which prevail over any other
person's right to make that decision. In our opinion, a court would probably hold that a person's
directions in a prepaid funeral contract for disposition of his or her remains may not be changed by
an agent who holds a statutory durable power of attorney under Probate Code chapter XII.
The second question is as follows:
2. If the agent under a statutory durable power of attorney cancels a
prepaid funeral contract purchased by the principal, does this also
cancel the principal's written directive regarding disposition?
Request Letter at 1. We are to assume that the purchaser has not waived his or her right to cancel
the contract. See id. at 6; see also TEx. FIN. CODE ANN. §§ 154.155 (Vernon 2003)(cancellationof
prepaid funeral contract), 154.156 (waiver of right to cancel contract). We also assume that the
statutory durable power of attorney authorizes the agent to cancel a prepaid funeral contract
purchased by the principal. Section 711.002(g) provides that a person's written directions for
the disposition of his or her remains "may be modified or revoked only by a subsequent writing
signed and acknowledged by such person." TEx. HEALTH & SAFETY CODE ANN. § 711.002(g)
(Vernon 2003); see Tex. Att'y Gen. Op. No. JC-0279 (2000) at 3 (construing section 711.002(g».
Cancellation of the prepaid funeral contract by the agent under a statutory durable power of attorney
is not "a subsequent writing signed and acknowledged by" the person with respect to the disposition
of his or her remains. Accordingly, if the agent under a statutory durable power of attorney cancels
a prepaid funeral contract purchased by the principal for him or herself, the principal's written
directive in the contract regarding disposition of his or her remains is not changed or cancelled. See
Tex. Dep't ofTransp. v. City ofSunset Valley, 146 S.W.3d 637,642 (Tex. 2004) (if the statutory
language is unambiguous, we must interpret it according to its terms).
Mr. Charles G. Cooper - Page 4 (GA-0720)
SUMMARY
Where an individual specifies the method of disposition ofhis
or her remains in a fully paid funeral contract of which he or she is
the purchaser and beneficiary, the individual's agent under a statutory
durable power of attorney may not change the method of disposition.
If the agent under a statutory durable power of attorney cancels a
prepaid funeral contract purchased by the principal for him or herself,
the principal's written directive in the contract regarding disposition
of his or her remains is not canceled.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHANK. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER·
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee