The Nassau County New York Supreme Court appointed the alleged incapacitated person’s (AIP) niece, Grace, as New York Mental Hygiene Law Article 81 Guardian for his personal needs and his sister, Vita as a Co-Guardian for property management.

When the AIP died, Grace and Vita disagreed regarding the disposition of his remains. Vita wished to cremate her brother’s remains. However, Grace alleged he intended to be buried, noting he purchased a plot for himself 35 years ago, submitting a copy of a certificate of privilege of burial.

The court noted the AIP’s parents and a predeceased brother were buried, not cremated. It stated the law regarding “possession” of a dead body expressly favored the surviving spouse and subsequently the next of kin, in this case, Vita, as she held a higher possessory right. Although the AIP’s will did not indicate his desires regarding his final resting place, he left a clear indication as to his intended wishes with the purchase of the plot.

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The court noted the purchase included the plot fee and permanent care, indicating his intention the plot eventually be used and perpetually tended. Thus, it granted Grace’s motion, directing that the AIP be buried.