Power of Attorney and Funeral Arrangements: Who Decides

A power of attorney ends the moment the person who signed it dies. After that, the agent can't sign a funeral contract or withdraw money as the agent. State law decides who has the right to direct the funeral, and that is usually a person the deceased named in writing, then the spouse, adult children, parents and siblings. A former agent can often still take the lead, but in a different role.

Does a power of attorney end at death?

Yes. A power of attorney is an agreement that lets an agent act for the "principal" while the principal is alive. Florida's statute, for example, states that a power of attorney terminates when the principal dies, and that is the general rule across the US. This covers both a financial power of attorney and a healthcare power of attorney.

There is a narrow protection for people who don't yet know. Under Florida's law, an agent who acts in good faith without knowing the power of attorney has ended is not penalized for that act. That is not a license to keep using the document. Once you know the person has died, stop.

Who can make the funeral arrangements?

Each state has a law listing who has the "right to control disposition" of the body. It covers the choice between burial and cremation, the funeral home and the service. A few examples show how it works and where states differ.

In Florida, an attorney-in-fact, a health surrogate, a guardian or a personal representative appears only after the relatives, and only when no family member is available. In Texas, the executor comes after the family. Other states differ again, especially on what happens when adult children disagree. Texas, for instance, gives the right to any one surviving adult child, and says a dispute among the people on its list is resolved by a probate court. A funeral home will ask who has authority, and the answer comes from state law, not from who held the power of attorney.

If you are in a dispute, or a family member could challenge your role, talk to an attorney in your state before signing anything.

What the former agent can still do

The agent's authority ends, but the person is not powerless. A former agent can:

• Act in another role. A spouse, adult child or executor may have the right to arrange the funeral. The agent often holds one of those roles, and should sign the funeral home's paperwork in that capacity.
• Help the person who has authority. The agent knows where documents are, which accounts exist, who the lawyer is and what the person wanted. That information is valuable.
• Gather documents. Locate the will, insurance policies and any pre-arranged funeral contract. Our documents checklist lists what families typically need.
• Notify the right people. Give the financial institutions, the executor and the family the news, and pass along what you know.

If the person named an executor in a will, that person's authority starts after death and is confirmed by the court. Our guide to executor funeral responsibilities explains how the two roles fit together, and what an executor does covers the wider job.

How can you pay when the bank account is frozen?

Once a bank learns of a death, it usually restricts the person's accounts. Because a power of attorney ended at death, it can't unlock them. Families typically use one of these routes:

• Pay personally and claim reimbursement. The estate can usually repay a person who paid reasonable funeral costs once an executor or administrator is in place. Keep every receipt and the signed contract.
• Life insurance. If there is a policy with a named beneficiary, the payout goes to that person and doesn't wait for probate. Some funeral homes will accept an assignment of the proceeds, so ask.
• Ask the bank. Some banks will release funds toward funeral bills with a death certificate and an invoice. Policies differ.
• Accounts that pass outside probate. A payable-on-death or joint account passes to the named person or survivor directly. See our guides on payable on death accounts and joint bank accounts after a death.
• Compare prices before you commit. Under the FTC's Funeral Rule, funeral homes must give you price information by phone if you ask, and a General Price List you can keep when you visit in person.

For bank accounts in general, see how to access a deceased person's bank account.

How do you make sure the right person is in charge of your funeral?

If you are planning ahead, don't count on your power of attorney. A separate written designation is the most dependable way to pick who controls your funeral. Both Florida and Texas put a person named in a signed written instrument ahead of relatives.

1. Name a funeral agent in writing. Many states have a specific form or recognize a signed statement. Ask a local funeral home or an estate planning attorney for your state's version.
2. Put your wishes in writing. Burial or cremation, service type, music, any religious or cultural rites. Keep the wording clear.
3. Give copies to the people who need them. That means the funeral agent, your family, your doctor and your executor. A will is often read after the funeral, so don't rely on the will alone. Our guide to whether a will covers funeral arrangements explains more.
4. Consider pre-planning with a funeral home. Ask what happens to the money, and get everything in writing. Our guide to wills and funeral wishes covers how the two fit together.
5. Service members have a military form. Florida's statute recognizes a person named on DD Form 93, which service members complete to name who directs disposition of their remains.

Common mistakes

• Assuming the power of attorney carries over. It doesn't, even if the agent handled everything for years.
• Assuming the agent outranks the family. A spouse or adult children may have a higher legal right than someone who served as agent.
• Leaving the wishes only in the will. The funeral may happen before anyone reads it.
• Signing without reading. Check who is listed as responsible for payment and what each line costs.

What to do next

1. If you are the agent and the person has just died, stop using the power of attorney and tell the bank.
2. Find out who has legal authority over the funeral in your state, and whether the person named anyone in writing.
3. Keep receipts for everything you pay and ask the executor about reimbursement.
4. If you are planning your own funeral, write down your wishes and name a funeral agent today, not only a power of attorney.