Appointment of Agent
Who Has the legal right to Make Funeral Arrangements in the State of Texas?
Texas law determines who can make decisions about funerals and body disposition. Powers of attorney do not survive death. The executor of the estate handles all financial and legal matters according to the provisions of the will after death. In Texas you must name the person who will carry out your funeral arrangements and control your deposition. This right and responsibility goes to the following people, in order:
an AGENT you name in a written document before your death
your surviving spouse
any one of your adult children
either one of your parents
any one of your adult siblings
one or more of the executors or administrators of your estate (as of September 1, 2015), or
any adult next of kin in the order named by law to inherit your estate.
(Texas Health & Safety Code § 711.002(a).)
Giving Control of Disposition of Remains to Appointment of Agent
Texas law allows an individual (“Decedent”) to appoint someone to make decisions about how to handle the Decedent’s funeral and burial or cremation. The Decedent can execute a document called “Appointment of Agent to Control Disposition of Remains” (“Appointment”). To be valid, the Appointment must be written or typewritten and signed with a notarized acknowledgment. The Appointment specifically authorizes cemetery organizations, funeral directors, and other such businesses to act under the document and accept the agent’s authority to make those final decisions for the Decedent. In the Appointment, the Decedent can list several individuals to be in charge of the Decedent’s final wishes, as well as provide specific details about how the Decedent prefers to be buried or cremated. The Appointment allows the Decedent to direct the agent as to language to be placed on a gravestone, where the Decedent wishes to be buried or cremated, and other specific wishes the Decedent might have for a funeral and other end of life decisions.
How to appoint an agent.
To name someone to carry out your final arrangements, you must use a form that complies with the requirements of Texas law. You must sign and date the form in front of a notary public. Before taking action under the document, the representative you name must sign the appointment of agent. You can find a copy of the form in the Texas statutes (Texas Health & Safety Code § 711.002) or you can download a free form below. If you are a military veteran or on active duty, You may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
I already have this information detailed in my WILL.
Such instructions may also be provided in a valid will. Providing such documents in a will could present problems if the Decedent wishes to change the end of life decisions. Because a will is a detailed legal document, amending a will is an involved process; whereas executing a new Appointment of Agent to Control Disposition of Remains can be significantly simpler.
The person in charge, whether family or an agent, may ignore the decedent’s instructions, unless they are written in a will or pre-paid funeral contract, or acknowledged before a notary. Use the Special Directions of the Appointment form to offer at least some guidance, e.g., “Cremate my remains.”
The appointed agent may disregard the family’s objections and your own oral instructions. Even written instructions are unreliable when they fall to unsympathetic family. The statute provides no tiebreaker when survivors share responsibility but disagree among themselves.
Agents and successors must sign the form to accept their appointment. Like other written instructions, acknowledge your own signature before a notary public.
The person in charge, whether family or friend, is responsible for the cost. Think budget when preparing your instructions. They may apply to the estate for reimbursement, but will have to front the initial expense themselves. If the executor or administrator appointed by the court controls the remains, they may use the estate’s money. Everyone else has to front the expense and apply for reimbursement later.