There are times that come along that we are forced to face issues of our own mortality and consider what might or should happen after we pass. Will we be respected? Will we be treated with dignity?
When the news came through social media that Jennifer Gable, age 32, had passed away, it left many shocked that such a young woman could die so suddenly. Then the news that left nearly the entire transgender community and many others absolutely maddened was the news that her family refused to recognize Jennifer as the woman she was.
When many of Jennifer's friends showed up to her funeral, her hair had been cut short, she was wearing a man’s suit and she was buried under the male name she was born with even though Jennifer had legally changed her name. By doing what her father did, he essentially tried to erase her life and the person she was. It is difficult enough for many transgender individuals to live their lives as their authentic selves, having to explain, argue, and justify their lives on an ongoing basis, but having someone continue to disrespect them after death isn’t what most people want to think about.
As the news spread throughout Facebook pages, many discussed how could her parents so blatantly disregard and disrespect Jennifer in such a way. Was there anything that could have been done to prevent this? Discussions on powers of attorney and wills began to trickle through the conversations. Can we make arrangements to ensure that our wishes will be followed after we are gone?
As the laws concerning Wills, powers of attorney and other documents vary from state to state, an understanding of the laws in your state is crucial. Many people believe that having a Will is good enough but when making plans for the time when you are incapacitated or for after your death, it is recommended to talk to an attorney for guidance on handling your specific wishes. This for everyone,not just transgender individuals.
Brian Stevens, Associate Attorney at David Wells & Associates PC in Chicago, Illinois handles estate planning and probate as part of the practice. “Most of what is contained in a Will deals with the assets of a person, however, a provision can be included when drafting that deals with the disposition of remains. Though a somewhat impersonal heading, “disposition of remains” is typically the label the law attaches to this area. Including a provision in a Will directing the nominated executor how to handle your remains allows you to give a great deal of detail.”
One of the problems with Wills is that they are often kept in a safe at home, a safety deposit box or other place out of the way and out of sight, where it will not be readily available at the time when arrangements are being made for for burial or cremation. Wills are often not even thought of until well after the burial. A separate Disposition of Remains from can be executed if there is a possibility of certain family members not abiding by your wishes.
“Disposition of Remains is separate signed and notarized document provided for by Illinois law where an individual nominates an agent solely for the purpose of taking care of their remains.” Stevens added, “The person executing the form may limit the agent’s authority by expressly stating their desires. This can be anything as general as a wish for cremation, to more specifics such as where ashes should be spread, what music to play or food to serve at a wake.”
Special care needs to be made when using this way of ensuring your wishes are carried out. Financial issues will arise that your agent must handle. Advanced arrangements need to be made so that your friend or specific family member has the financial aid to carry out your wishes.
You would have to check the statutes in your area, but Illinois does have a special provision when it comes to Powers of Attorney. Stevens relates, “Power of Attorney for Health Care also contains a Disposition of Remains provision, and allows the person acting as health care agent to take charge of an individual’s remains after death. This can often be the most expedient grant of authority as an individual’s health care agent may already be present at the hospital and may have been making decisions for the individual while they were still alive. Thus after they pass it is merely a continuation of the authority the agent already was exercising.”
If you choose to go this route, it is very important to make sure that the person you have responsible for your health care is also the person you want making funeral arrangements. Stevens added, “For some people this may not be the case and they will need to be sure they explicitly do not include this power in the health care POA, and will need to execute either a Will or [separate] Disposition of Remains form.”
Making arrangements for what happens to your remains is never an easy task to under take. It is an in your face reminder of your mortality. While pre-paying for cremation or burial is an option that will hold the funeral home contractually obligated to fulfill your wishes, facing the task of choosing one’s own casket is often too much for many to handle. The other stumbling block to this option is that few understand the real costs that go into making these types of arrangements.
As many plans one person can make, Jacob Meister, Chairman of the Civil Rights Agenda and founding partner of Jacob Meister & Associates law firm in Chicago points out there can still be issues when carrying out the final arrangements. “As a general rule, the problem with funeral arrangements is similar to the problem faced with medical decisions where someone is unable to make decisions for themselves and the decisions are left to the next of kin. If the decedent is married, the decisions are made by the spouse. If unmarried, decisions are made by parents or siblings. While it is possible to have written directions prepared in advance by an attorney, as a practical matter it is often nearly impossible to enforce the advance directives, either because the next of kin choose to ignore the advance directives, nobody knows that they even exist or there is not someone (partner, friend, family member etc) who steps forward to try to enforce the directives.”
An example of this hit the headlines in 1998 with a case that pitted a husband against his wife’s parents. It was a case that divided people across the country. In 1990, Terri Schiavo collapsed at home from cardiac arrest. The ensuing lack of oxygen to her brain left her in a prolonged vegetative state. Knowing that she would never want to live in such a manner, Terri’s husband, Michael Schiavo, petitioned the Florida court to remove her feeding tube, thus removing her from life sustaining and saving measures.
Because there was no living will, the court case dragged out for nine years with Michael finally winning the right to remove his wife’s feeding tube on March 18th, 2005. Terri passed away on March 31st, 2005.
This case brought to light to many the need for clear advanced directive to be in placed. But it also highlights that even though Michael was the one to make life decisions for Terri, it didn’t stop Terri’s parents from trying to intervene and imposing their own opinions and wishes.
"Troubles often arise when individuals do nothing, as under Illinois (and most state’s) law, there is a priority as to who can make disposition decisions. For an unmarried individual, without children, and who doesn’t nominate an agent, that is most often going to be any surviving parents or siblings. For some people this may be acceptable, but for many others those are the last people they would want in charge of making such decisions." - Brian Stevens.
As difficult as it may be, if there is anything positive that may come from the tragedy of how Jennifer Gable was treated after her passing, maybe, just maybe, there will be a heightened effort by many men and women, and not just those in the lesbian, gay, bisexual and transgender community, to prepare for those future times when when we are no longer able to make decisions for ourselves.
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