Death, et seq.

One of my major goals with this podcast is to introduce listeners to a variety of perspectives on the funeral industry and changing death practices. In Episode 3, I talked to Dan Isard, who is a management and financial consultant to funeral homes. In Episode 4, I talked to Caitlin Doughty, who is a non-traditional funeral director in Los Angeles with a critique to the status quo. In the next few weeks you’ll hear from Lee Webster, who has been very active in the home funeral and green burial movements, and from Amy Cunningham, who takes a very thoughtful and non-traditional approach to her second career as a funeral director.

Several questions have emerged from my conversations with these folks, and some fundamental tensions have been revealed in their answers to these questions. Are funerals for the living or the dead? What is a “good” funeral? Are people less interested in rituals than they were before and, if so, why? What are the pressures facing the funeral industry and how should the industry react? Today’s podcast touches on many of these questions, from the perspective of a long-time leader of a funeral and cemetery industry trade association.

There are three major trade associations that represent participants in the funeral and cemetery industries in the United States – The National Funeral Director’s Association, known as NFDA, the Cremation Association of North America, known as CANA, and the International Cemetery, Cremation, and Funeral Association, known as ICCFA. ICCFA was founded in 1887 as the Association of American Cemetery Superintendents. Today it has more than 9,000 member businesses representing all segments of the cemetery, funeral services, cremation, and memorialization profession.

Today’s podcast features my conversation with Bob Fells, who is the General Counsel of ICCFA. Bob was formerly the Executive Director and General Counsel of ICCFA, retiring from his role as Executive Director in 2017. Bob joined the staff of ICCFA in 1983 and has been working on behalf of the funeral service profession on legal and legislative issues since 1975.

Whenever people ask me what I do, and I tell them that I research, teach, and write about the law of human remains, their first response is to say “uuuh.” And their second is to say “I’ve always wondered...” America is a uniquely death denying culture, which is perhaps why we know so little about what follows death. Not in the spiritual sense...but in the physical sense. What happens to human remains after death in the United States?

Death is sometimes tragic, sometimes a blessing — always inevitable. Death transforms a living human being, a person with rights and autonomy, into ... something else. Tissue and bone, once animated by life, converted into an object of fear, a focus for grief, and a medical and scientific resource. A human cadaver is no longer a person, but neither is it an object to be easily discarded.

Human remains occupy an uneasy position in U.S. law, and their existence raises three fundamental questions. The first question compels our behavior and requires us to act: what, if anything, must be done with human remains? The second question circumscribes our behavior and discourages action: what cannot be done with human remains? The third question seeks to set normative expectations for our behavior: what should be done with human remains?

These are questions that we will address in this podcast, not only in terms of what the law IS, but in terms of what we think the law OUGHT to be. This means that we have to think about a lot of things that most of us don’t really want to think about. But I promise it gets easier. Confronting the reality of human remains and the social norms and laws surrounding them is both a unromantic practical exercise and a deeply spiritual one. I promise that it’ll be worth it.

I want to start out the podcast the same way I start each new semester of my funeral and cemetery law class at Wake Forest — by talking about a series of real life cases that which I think raise some of the fundamental issues that we’ll be tackling throughout the podcast. And I thought it would be more interesting if my 17 year old son Liam Sherman helped me out by giving his initial impressions of each case.

For further show notes or to submit questions or comments, please visit the website www.deathetseq.com.

Estate planning should involve more than simply creating the appropriate documents to address who will receive your property after your death. Modern estate planning also includes some planning for a period of time prior to death, particularly if circumstances arise that a person cannot manage their own property or cannot make health care decisions for themselves. The vast majority of people will die after a period of some incapacity. If that period is short, then there are few problems. But because that period can be months or even years, many people want to make arrangements with respect to their property and health care in case the need arises.

There are three basic documents for planning for the period of incapacity that Jonah Bamel, Greg Volk and Tanya Marsh discuss in this episode: (1) a health care proxy or health care power of attorney; (2) living will or advance directive; and (3) durable power of attorney.

Visit www.deathetseq.com for links to additional resources.