In several religions, burying the dead is considered the holiest and most important of acts. In Judaism, it is often referred to as the greatest mitzvah. In Catholicism, it is one of the corporal works of mercy. Unfortunately, during the COVID-19 epidemic we have been given many opportunities to show this final act of respect for our loved ones. As practitioners engaging in estate planning and elder law, we are often charged with assisting our clients with their end-of-life decisions, whether it is writing a living will as well as a last will and testament or the appointment of an agent to control one’s remains.
Admittedly, discussions related to these topics can be macabre, difficult, and emotional. Like most things in life, it is important to contemplate these issues, discuss them with family and friends and record one’s wishes, so that there is no confusion or mystery when one passes away.
Sometimes, however, things fall outside of our control. Among the victims of COVID-19 are many nursing home residents, some of whom are the subject of guardianship proceedings in the state courts. Dorothea Buschell died a resident at Hamilton Park Nursing and Rehabilitation Center in Brooklyn, New York. Media reports indicate that she was the subject of a 2015 guardianship proceeding in Kings County Supreme Court and that an independent organization was appointed to serve as her guardian.
A guardian in the State of New York is appointed when one cannot manage one’s affairs as a result of incapacity. A guardian can be appointed for personal needs, property management, or both. Nursing homes often petition courts for the appointment of a guardian, when one does not have involved friends or family to assist them. A resident may be ill or disabled, with acute or ongoing personal and financial needs. Often the impetus for a guardianship is to help the resident qualify for Medicaid so that she may remain in the nursing facility. Without a guardian, the resident’s financials may be inaccessible, and Medicaid planning or an application impossible to accomplish. Generally an independent guardian such as an attorney or organization is appointed when there is no involved family.
Among the many powers granted to a guardian is the authority to arrange for a ward’s funeral. This may be accomplished in conjunction with an irrevocable funeral trust which has benefits when applying for Medicaid. In the instant case it seems that a burial trust was established, including a Catholic funeral and burial. Classy, pretty, respectable, and maybe even expensive, such a funeral, it has now been discovered, was all wrong.
After not being able to reach their cousin, Elayne Boosler, a well-known, comedian, and Harriet Saltzman learned that she had died and been buried in Morganville, New Jersey. The problem, they quickly realized, was that Buschell was to be buried in a family plot reserved for her in a cemetery in Farmingdale, Long Island. Moreover, Buschell was Jewish. Boosler reports that her cousin was buried in the Catholic tradition. Specifically, embalmed, wearing a $400 dress, and clutching a rosary. In a mahogany casket. Traditionally, the Jewish are not embalmed and are buried in shrouds. And they rest in pine boxes, not elaborate coffins. Boosler states that the nursing home had the paperwork for Buschell’s plot and the cousins’ phone numbers, although neither was contacted upon her demise.
These matters raises many issues. First, we learn that we need to be explicitly clear with our estate plans and burial wishes. With regard to guardianships for individuals in nursing homes, it is imperative that the lines of communication between families, guardians, and providers remain open. Sometimes family exists, but a nonrelative is appointed as guardian. In this case, Boosler and Saltzman were unaware of the appointment of a guardian for their cousin.
Kudos to Buschell’s cousins who are now trying to perform this important mitzvah by having their cousin moved to the family plot. They are having some issues as a result of the COVID-19 epidemic. The cost of the transfer and who should front the bill is also being contemplated. There are plenty of individuals who do not have families and who have not expressed what they want when they pass away, leaving strangers to make decisions for them. It is imperative for guardians, residences, and families to respect the wishes of the deceased and to make every effort to find out what those wishes are, if they have not been evidently revealed.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.
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