My father's funeral wishes are not being honored. Can a guardian overrule his wishes?

After answering, I find you did answer this question. Good luck in trying to solve this problem.

You speak of his "guardian", but I do not see you say it is your sister. Please clarify.

Thank you, everyone for your continued support. All great advice and counsel. I will definitely keep all responses for reference. And to "Elderchamp", I completely agree regarding what personal expenses would incur if this situation is pursued on behalf of my dad. Unfortunately, my sister doesn't communicate with the family and is calling the shots on everything.

It sounds so easy to recommend legal counsel however Lillybloom will have to pay for those costs. Any legal action the guardian takes will be covered by the estate. So, Lillybloom tries to do what is right by her father and yet has to pay for it. Legal advice is good but expensive. I would try to petition the court to remove your sister as guardian as she sounds like she is more interested in what she would like done rather than your father's wishes and this is not what a good guardian should do. She should also be communicating with the entire family on this matter and it sounds like she is not doing that effectively. Sorry to hear you are dealing with this and good luck!

Lillybloom, get a second legal opinion. Inquire how a Guardian or a POA has authority of the deceased. After death, the authority of the Guardian and POA ceases. It should then go to the family or Executor of the estate. You can also check with the court who ordered the Guardianship. The attorney needs to be one who is well versed in these types of matters.

Sounds like you consulted an attorney, so you will accept the situation as is, or pursue the challenges as you wish. The outcome will not affect the fact that your father has died and not take away all that he meant to you, or his well-lived life, and all that you take from it as you move forward in Your life. You can feel the peace that comes to you in knowing you cared, and you loved him, and he, you.

Snowcat60 raises an interesting point. In some states (including mine) siblings have to be consulted before cremation takes place.

There are 7 siblings in my family. The 3 of us living closest to the funeral home signed off on cremation immediately, but that wasn't enough. We had a final planning meeting with the director and as soon as the first sib through the door who had not signed already did sign it, the Director said we were good to go. The other three did not have to sign (but they did by choice). We picked out urns, discussed flowers, etc.

How many siblings are in your family. Do the other agree with you or your sister? Check out the rules for your state. This may be your answer.

Cremation is not as easy as you think. When my Mom passed I knew that she wanted to be cremated and not buried. But in Ohio you have to have a majority among family to go forward and sign off on it.
My siblings who only came out of the woodwork after she passed looking for money refused to sign off on cremation and I had to go to court, leaving poor Mom in limbo to get it done. This was a very stressful nightmare to say the least. I almost had to have her funeral without her presence.
You need to check the laws in your state, because if there is more than one sibling and someone disagrees the funeral home cannot proceed. So, this is in your favor.

Lily says, "I did consult an elder law attorney, but in his opinion, it's a pretty airtight situation with her calling the shots on everything."

I am by no means experienced with this, but would a court consider removing a guardian who is performing her duties well just because other family members didn't like her decision about what to do with the body when the ward died? Especially when there are no documents stating what the ward wanted? Or that the guardian would be not be acting as guardian at that time, but as executor?

I can see why the lawyer wasn't advising that Lily pursue this.

About honoring Dad's wishes: One wish he did put in writing and did sign in front of notary and a witness is his desire to have Sister be in charge of making decisions when he could not. Later a court appointed her to be charge, with even more authority than the previous POA conveyed. If Dad had been opposed to her being appointed the court may have considered an appointment outside of the family.

So Sister is honoring your dad's wishes (and the court's order) to be in charge.

Why didn't Dad's end-of-live papers get signed? Was it hard to find or get him to a witness? Was he too stressed out over filling out the document that he just wanted to go to bed? Did whoever was helping him just screw up? Or was he not certain about all his decisions and wanted more time to think about them?

If he wasn't sure about his decisions and Sister had some conversations with him later, is it possible that she IS trying to honor his wishes? That he changed his mind after filling out but not signing that form earlier?

There seems to be bad blood between you and Sister, and it is possible the nature of your relationship colors your interpretation of her actions. Maybe she is acting out of greed. It's possible; there certainly are people like that. Or maybe her convictions about the superiority of cremation are as genuine and as strong as your feelings about burial. Maybe she is acting out of sincere belief and out of knowledge of Dad's revised wishes. Maybe.

But whatever her motivations, she is probably going to get her way, especially if she is executor. What can you do?

I hope you know that it is possible to have a complete service of your choice, even if there is no body. Usually the urn of cremains is present, and a picture of the deceased is displayed. This can be in a church, with all the formal ritual performed, it can be in a chapel, with a simpler ceremony, it can be in someone's home, a park, a rented hall, the meeting room at a bar -- anywhere that will accommodate the number of people invited. There can be hymns the deceased found meaningful, prayers, bible readings, or (outside of a church) popular songs the deceased loved, memories shared by friends and family, or the kind of party the deceased loved.

I have been to both formal church funerals and informal celebrations of life events, with the urn of cremains on display and/or pictures taken throughout the deceased's life.

Even if you cannot prevail in having Dad buried, you can certainly have a celebratory event honoring him after he passes.

Lillybloom25, so very sorry to hear about what is happening with your father and the guardian. She sounds like a predatory guardian and unfortunately they are out there! Guardians have no oversight nor any real accountability. (To read up on some other horrendous stories go to stopguardianabuse.org.) There is a serious conflict of interest if the guardian is also the beneficiary. You could petition the court for her removal. You will have to get an elder law attorney but make sure the attorney understands elder abuse and all the criteria. This is elder exploitation and you need legal counsel that understands how to fight for your father and get the guardian removed because she is not acting in the best interest of your father or abiding by what HE would want done. Good luck. It is very sad and hang in there...

This is wrong in so many ways! It would be advisable to hire an elder law attorney. Your father's wishes are not being honored...how horrible. This person knows what awaits her and it won't be in heaven!

Lilly, I think you're being very sensible. And take comfort. Honestly? - if this had been a really important point of principle to your father, surely he would have prepaid a plan and put his wishes in writing much earlier on, maybe when he was doing his will.

And may it not be any sort of problem for anyone for some time yet! Hugs, take care.

Lillybloom25, there's a lot of good advice in the comments above.
Most important is the timing.
The moment your dad dies is the moment that your sister's guardianship ends. It is also the moment when all his money - bank accounts, assets, everything - will be frozen until the will is executed. The only person able to spend money will be the funeral director!! You have to give him all the cash in advance to cover anticipated costs.

So the best thing to do is to find a funeral service company quickly, talk to the director and get a budget for the planned funeral on the basis of what your father wrote - if possible, take your father with you. Important to discuss the length of time for lease of the burial plot (30 years is usual) and what should be done with the body afterwards. If your father is an organ donor, or wants his future remains after the burial plot lease is over to be composted or cremated, that too should be put down in writing at the funeral parlour. 

To save money, ask for a biocasket, if the cemetary allows, and don't pay for newspaper announcements that nobody will read. You can also lease the plot for a shorter time period.
Then get the paperwork to start some arrangement to pay advance instalments to the funeral director. You will have to do most of the above anyway for a cremation as well as for a burial service. Also get the budget figures for a cremation in order to be able to compare the prices.
And remember that for a cremation, if the ashes are not to be scattered immediately, the urn with the ashes will have to be kept somewhere until the niche in the crematorium grounds is ready to receive it. Most funeral homes will take care of this, for a small charge.

After that, you should inform the nursing home of the intended funeral plans so that they will have it marked in their records how to prepare your father's body post mortem.  In some countries, if there is no doubt at all about the cause of death, the body may go directly to the funeral home and be held there until the coroner has signed the death certificate. Only then may the funeral take place. (For my late mother it was a very very close call - we were in a holiday period!)

You can discuss all this with the rest of your family (probably individually is best) and volunteer to be in charge of the funeral arrangements. Neither the nursing home nor the funeral director will want to deal with someone who is strange to them. Tell your family if the decisions are left too late, the family will have to defray all the expenses out of their joint pockets, and wait to be reimbursed after probate of your father's will, which would not be at all popular. If your father really hates the idea of being cremated and having his ashes scattered, why should his  children then profit from inheriting more? You could threaten a lawyer who would see to it that a substantial proportion of the estate would go to the nursing home if his wishes would not be honoured.
Far better to plan ahead and start the instalments from your father's own assets.

Thanks to everyone for your valuable advice. I appreciate the time taken to provide information on what actions to take. The guardian is my twin sister and one of the beneficiaries. We no longer communicate with one another over this and other matters concerning my dad. He listed her as POA in his will to start with and then she pursued guardianship after his health declined. It's all about power, control, and money and it ruins family relationships. It's too bad the court didn't appoint a third party (non family member) as his legal guardian; it would have saved me a lot of grief. I did consult an elder law attorney, but in his opinion, it's a pretty airtight situation with her calling the shots on everything. Oh well, I'm going to move on with life and whatever happens after he's gone, it'll be on her head.

You got a lot of good advice here - I was unaware of the actions of "legal guardian" ending at the death of the person (ward).

I like the advice about going to a funeral parlor and setting up your plans in advance - however, will you have access to your father's funds to pay for this? I can't look into your wallet but you might not have enough if you cannot access dad's funds. Also, how is the will affected?

Really? An Elder Attorney is probably the best advice and many suggested it.

Quick lookup online - the "rules" seem to vary state to state (no surprise, as each state has it's own rules on POA, etc). However in general the "duties" are limited and based on what kind of guardianship. Sounds like this person (is it a sibling?) has both guardianship (care for the person) and stewardship/conservatorship (financial control of assets). It makes things difficult if the person wants to avoid paying for the services, HOWEVER: information found on Cornell Law School website says there are several ways to terminate guardianship and the MOST important one here is that "a guardianship ends at the death of the ward".

So, this person has NO say what happens after your father's death, as this decision falls to next of kin...UNLESS this is a sibling (and no wife). If there are several of you (sounds like there are) and you all want to honor dad's wishes, I highly recommend you seek out an Elder Care attorney (initial consult should be free, bring all your questions to that consult!)

If this guardian also controls access to finances, pre-paying for a funeral will be a problem. Another web search (Mass gov) also indicates that guardianship ends at the death of the ward (implies personal and financial). It states "...after the death of the ward, the guardian does not have the authority to plan the ward’s funeral. Guardians may wish to consider this issue and plan accordingly." So again, this decision falls to the next of kin (he/she may be one, but if there are more of you, majority rules!)

Questions
- Besides this funeral form, has he paid anything towards a funeral?
- Does he have a legal will?
- If yes, who is/are the executor(s)? Hopefully not the same cheapskate...
- If you are all inheriting anything, is there enough that you all chip in to pay for it?
(since it takes time to run through probate, you will all have to chip in your
own money until that process finishes)
- Are there any assets that can be used to pay or pre-pay for the services now?

Bottom line is that this person CANNOT make those decisions, but you need to seek legal advice NOW to ensure what dad wants is what he gets!! It would not be cheap, but a good Elder Care attorney could probably also get this guardian revoked and have a new one appointed. When going to this attorney, if dad is still competent bring him along to make sure that he updates OR makes a will, and includes his wishes for the funeral as well as allocates the funds needed in that document. He could also have his funeral form notarized while there, making it even more binding. The will should clearly specify how and where his remaining assets are distributed. Also make sure that this dip is not named as the Executor of the will!!

Once you can get the above in place, you may have to pay out-of-pocket for the funeral services, but once the will is processed through probate, you should be able to recoup those funds (assuming there is anything there - perhaps your attorney could request a financial update and records from this dip to ensure he/she is not abusing their "power"? The courts do require reckoning, but those can be fudged...)

If the legal guardian is not a wife or adult child of your father, they will have no say over your father's funeral arrangement. No legitimate funeral director will work with an individual who is not directly kin to a deceased indiviual unless there is no next of kin willing to make the arrangements. When my unmarried son died recently, I had to have his minor children's mother there to sign on behalf of their chidlren because they were the direct next of kin even though I was his mother and paying for the funeral.

First of all, she can't "put something in place so nobody can contest her decision". There is a vast difference between a will & what a person wants when they die. If the person is in a nursing home, at the time of the person's death the person that is stated in the records as the family contact with be the one the facility calls, and the one that tells the facility what to do with the person's body. Sometimes, LTC facilities already have that on file & just contact the family member to notify them of the death. And if she isn't going to even come back after your father dies, then it looks like you are the one that will be making that decision.

And guess what, sister? Anybody in the family can contest a will---she can't "put something in place" to stop that.

How did she get named guardian, anyway? If she doesn't live locally, why would she be named as your father's guardian?

I definitely think you should contact a lawyer. It seems to me a complete waste of time trying reason with any family members about this. As far as I am aware an "unsigned" will or his wishes in writing but unsigned would be USELESS in a Court of law if it comes to it. But you need to get proper advice from a Lawyer....... now!! I have seen how families can become enemies when it comes to inheritance money......... I really feel for you. Love and hugs and I hope you get somewhere. xx

Go to a funeral home & make the arrangements as your dad wished using that paper as guidance - sis is out of town & losses all right to decide the second he dies - pay for this yourself & keep all bills - then submit it to executor afterwards -

Submit the information to NH as they don't do anything once he dies but facilitate the funeral home & usually during a meal so that other residents don't see - If you are the constant visitor & not her the NH will probably listen more to you -

I hope she is not executor as that will be another problem - if no executor appointed then see a lawyer about having you or another family member appointed by getting your ducks in a row now not waiting until later - this could prevent her from becoming executor - tell lawyer once you call that dad has died to submit paperwork that day

Unless it is for religious reasons - ie, you must bury people of the jewish faith within 24 hours - there is little you can do other than see if you can get your father to sign the paperwork.

We were aghast when "Uncle" cremated his mother as they were both Jewish and he should have known better. SOB is a multi-millionaire and he said it was cheaper.

But you let go and realize the sin is on his head and not yours. When the time came, I provided for my father by Jewish Law and he was in the ground within 24 hours. I was raised Protestant but I knew what had to be done for Dad.

So see if you can get the paper signed and WITNESSED! It will have to be Witnessed! And then just pray for the right outcome. However, if Sister/Guardian cremates, the sin is on her head.

Seek legal advice. I believe that the Guardian's authority ceases at moment of death in many states. Then, it goes to the family or the designated Executor of the estate.

The guardian's powers ended when your father died. His next of kin has the right to make all decisions regarding his burial, not his guardian (unless she is the next of kin). Or, if your father had a Will or Power of Attorney which contained a provision appointing someone other than next of kin to have the right of sepulcher (the right to make decisions regarding disposition of remains). Contact the funeral home or wherever his body is being held.

Even in the most severe cases of mental incompetence courts find that an individual can change their will including funeral arrangements. The guardian cannot interfere WITHOUT court permission.

Not direct the funeral, no. But the NH would need to make that first call to get the person collected, and to notify the next of kin if they're not already there, and this is a good opportunity to get the right ball rolling, so to speak. If the funeral services provider starts out with instructions to prepare the client for burial it's going to be harder for cheese-paring relatives to override that.

Also, there will be those residents who literally have no next of kin. In such cases, the NH will be responsible for passing the resident's instructions on to the funeral home. I don't know, but presumably they also have procedures in place for if there are no instructions at all.

The nursing home has agreed to direct your father's funeral?? Maybe I misunderstood because that sounds really odd. No nursing home I'm familiar with would ever get involved in carrying out funeral plans (regardless of whose plans they are). Once a resident dies, the family directs what happens to the remains. In the absence of family, the POA makes those decisions. Your sibling can't relinquish those duties to the nursing home and the nursing home would not accept them if she did. She would still be carrying out the plans.

I'm a bible believer but will be donating my body to the local medical school then will be cremated. We are nowhere told in scripture that we must be buried in a grave. People think they can "imitate Christ," as though any human truly ever has or could, thus the traditions and burial customs. Many thousands of bible believers have been drowned or burned to dust over time. I'm assured in scripture that on death of the body, the soul goes where it is supposed to immediately, and that we get a new body in the fullness of times; our bodies on this earth matter not. My own mother would not be pleased that we will be cremating her, but she refused to discuss burial plans with me or anybody else when she was able to make those plans herself. To make several family members happier, I arranged it so she will be embalmed and dressed beautifully, her body displayed at her childhood catholic church for visitation then a mass, then she'll be cremated and the ashes buried in a nice marble container in the ground next to my dad a few days later. My pagan sister and niece want pieces of her ashes to put in jewelry, which disgusts me every time I think of it. With my nasty sense of humor, I asked them if they wanted bones they could put in their noses also. Oh the fun of being in charge, so many people you have to try to satisfy...

contact a lawyer

So you not only have to be physically intact you also have to be looking in the right direction at the crucial moment? Gosh. Salvation is going to be even trickier than I realised.

Forgive me. People do have strong religious beliefs and important traditions, and I absolutely agree that these should be honoured. Heavens! - *legally* they must be respected by the person's executor, it isn't even a matter of choice.

But people who feel so strongly normally make sure they have everything down in writing. The OP's father, unfortunately, had not done so; but perhaps in that case his convictions are less certain.