ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### Mr. Charles G. Cooper Banking Commissioner Texas Department ofBanking 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 ofan 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 ofour analysis that an individual has purchased and fully paid for a prepaid funeral contract that specifies the method for disposition of his orher remains and the individual has also executed a statutory durable power ofattorney under Probate Code, chapter XII, the Durable Power ofAttorney 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 ofattorney took effect, has become incapacitated. 

### See Request Letter at 

### 5-6; see also 

### TEx. PROB. CODE ANN. 

### § 490(a) (Vernon 2003) (a durable power ofattorney 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. Maythe agentunder a statutory durable powerofattorney change the method ofdisposition, e.g., from burialto cremation, specifiedbythe purchaser/principal in a prepaid funeral contract?

lRequest Letter at 1-2 (available athttp://www.texasattorneygeneral.gov). 2We do not address a statutory durable power ofattorney that authorizes the agentto make decisions aboutthe disposition ofthe principal's remains.Mr. Charles G. Cooper

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Request Letter at 1. Chapter XII ofthe 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 ofthe Health and Safety Code, which provides in part: (a) Unless a decedent has left directions in writing for the disposition ofthe decedent's remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, ofthe decedent's remains, shall inter the remains, and are liable for the reasonable cost ofinterment: (1) thepersondesignatedinawritteninstrumentsigned by the decedent; (2) the decedent's surviving spouse; [(3}-(6) certain other relatives ofthe decedent].

(g) A person may provide written directions for the disposition, including cremation, ofthe 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 orrevoked onlybya subsequentwriting signed and acknowledgedby such person.... 

### TEx. HEALTH & SAFETY CODEANN. § 711.002(a), (g) (Vernon2003) (emphasis added). Where the purchaser ofa prepaid funeral contract provides directions for the disposition ofhis 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 ofa decedent's remains has a duty to carry outthe decedent's directions for disposition ofhis orherremains. In addition, section 711.002(g) providesthat a person'swritten directions for the disposition ofhis 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 ofhis or her remains. See Request Letter at 1.Mr. Charles G. Cooper

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acknowledgedby suchperson. See id. § 711.002(g). Accordingly, a person's written directions for disposition ofthe person'sremains in a prepaid funeral contract will prevail overthe 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 ofher 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 ofattorney 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 ofhis orherremains pursuantto section 711.002(g), "by the plain language ofsection 711.002(a), take priority over any other person's right to control the disposition ofthe remains." Id. at 138. Pursuant to the plain language ofsection 711.002(g), an individual has the right to control the disposition ofhis 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 ofhis or her remains may notbe changed by an agent who holds a statutory durable power ofattorney 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 ofright 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 ofhis 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 ofthe prepaidfuneral contractby the agentunder a statutory durable power ofattorney is not "asubsequentwriting signed and acknowledged by"the personwithrespect to the disposition ofhis or herremains. Accordingly, ifthe agent under a statutory durable power ofattorney cancels a prepaid funeral contract purchased by the principal for him or herself, the principal's written directive inthe contractregarding disposition ofhis orherremains is not changed orcancelled. See Tex. Dep't ofTransp. v. City of Sunset Valley, 146 S.W.3d 637,642 (Tex. 2004) (ifthe statutory language is unambiguous, we must interpret it according to its terms).

### Mr. Charles G. Cooper

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### SUMMARY Whereanindividual specifiesthemethod ofdispositionof his or her remains in a fully paid funeral contract ofwhich he or she is thepurchaserandbeneficiary, theindividual's agentundera statutory durable powerofattorneymaynot change the method ofdisposition. If the agent under a statutory durable power of attorney cancels a prepaidfuneral contractpurchasedbytheprincipal forhimorherself, the principal's written directive inthe contract regarding disposition ofhis 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