ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

Mr. Charles G. Cooper 

Banking Commissioner 

Texas Department of Banking 

2601 North Lamar Boulevard 

Austin, Texas 78705 

Dear Commissioner Cooper: 

June 2,2009 

Opinion No. GA-0720 

Re: Whether an agent under a statutory durable 

power of attorney may alter the method of 

disposition of a person's body previously 

specified by that person in a prepaid funeral 

contract (RQ-0768-GA) 

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 of Sunset 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 of his 

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. 

ANDREW WEBER 

First Assistant Attorney General 

JONATHANK. FRELS 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER· 

Chair, Opinion Committee 

Susan L. Garrison 

Very truly yours, 

Assistant Attorney General, Opinion Committee