Who has the right to make funeral arrangements for the Deceased ? The starting position is the Executor.

Whilst it is thankfully not common we advise from time to time on disputes concerning burial.

The executor has a primary duty to dispose of a body and has right of possession of the corpse for this purpose. The executor can determine the mode and place of burial. Where there is no Will the right to determine mode of burial falls to the administrator.

In Holtham v Arnold 1985 the deceased’s separated wife being entitled to letters of administration of her late husbands estate and therefore entitled to arrrange the mode and disposal of her husbands corpse above his cohabitee.

Where two or more people are equally entitled to the deceased corpse matters become more complicated. In leeburn v Derndorfer the deceased appointed his three adult children as executors. Whilst cremation was agreed no agreement could be reached on what was to happen to the ashes. One of the parties sought an order that one third of the ashes be disinterred and given to him for dipsossal. This was refused for the following reasons 1. The deceased remains had been interned for 4 years and should not be disturbed 2. It was not appropriate to divide the ashes 3. The majority of executors has chosen to has the ashes I turned and 4. The Judge was not satisfied the cemetery was an inappropriate final resting place.

In Fessi v Whitmore 1999 separated parents were equally entitled to their deceased’s child’s body. In this case the Judge ruled that to divide the child’s ashes as proposed by the mother would be ‘wholly inappropriate’ 

If a child dies whilst in the care of the local authority, the right to bury reverts to the child’s parents.

If you need further information regarding this area of law please contact us.

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A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at https://www.clodes-solicitors.com/service/lasting-power-of-attorney/ #solicitor #local

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