Carlson v. Glueckert Funeral Home, Ltd.
943 N.E.2d 237
Ill. App. Ct.2011Background
- Eleanor Carlson died on September 15, 2007; she had appointed Scott Carlson and Nancy Lyons as coexecutors and successor co-trustees, with Denise excluded from the trust.
- On August 10, 2007, Eleanor executed a power of attorney for health care appointing Scott to direct disposition of remains, among other authority.
- Scott arranged funeral services with Glueckert Funeral Home on September 17, 2007 and signed a contract; Eleanor’s remains were to be handled per the agreement.
- Denise allegedly demanded more expensive arrangements; Glueckert allegedly delayed and considered the body stored; later transferred remains to the Lake County coroner and alleged abandonment due to non-refrigeration.
- The coroner informed of decayed remains; Scott obtained a court order on October 11, 2007 to release the body and Eleanor was later buried on October 18, 2007.
- Plaintiffs filed suit on September 12, 2008 for breach of contract, fraud, consumer fraud, IIED, and interference with the next of kin’s rights; circuit court dismissed under 755 ILCS 65/1 et seq. and 50, and plaintiffs sought reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| POA termination by death | POA allowed Scott to direct disposition after death; paragraph 4 initialing not necessary to activate; not effectively terminated. | Paragraph 4 termination on death should invalidate Scott's authority; lack of initials undermines effectiveness. | POA did not terminate on death; circuit court erred, but dismissal affirmed on other grounds. |
| Dispute under the Disposition of Remains Act | There was no dispute since POA controlled disposition; Denise lacked standing to contest. | There was a dispute between Scott and Denise over disposition. | A dispute existed between Eleanor's children; court upheld dismissal under the Act. |
Key Cases Cited
- Fort Dearborn Life Insurance Co. v. Holcomb, 316 Ill.App.3d 485 (2000) (strict construction of POA to reflect clear intent)
- Crawford Savings & Loan Ass'n. v. Dvorak, 40 Ill.App.3d 288 (1976) (strict construction of powers of attorney)
- In re Donald A.G., 221 Ill.2d 234 (2006) (interpretation of legislative intent in statutory construction)
- Frydman v. Horn Eye Center, 286 Ill.App.3d 853 (1997) (standard of review for 2-619 motions; de novo review)