What can be done when an outdated living will is presented, knowing a more recent durable healthcare power of attorney exists?

I would suggest that you file a probate and handle her estate through the court.

You should have told the crematory people that a more recent relevant document exists, and they should do nothing for x hours or a day, by which time you will provide them with a copy. He might still have made a scene, but it would not be your fault. (Allowing him to have his way does not seem to me to be respectful to your mother's wishes.)

Usually, your document has something showing that a copy is as good as the original.

Well the living will only applies to medical decisions, not to after death situations. The POA ends upon death. Her will should have stated what she wanted done. If there was no will, then there probably isn't much that anybody can do now. If there was a will and she wanted to be buried, then the estate may have some claim against the out of state person, but it probably isn't worth the heartache at this point.

In the case of powers of attorney and advance healthcare directives, the last in time of preparation controls and they both expire on the death of the person except as to the burial instructions, and are supposed to be followed. Suggested you obtain the services of a probate lawyer to determine if you can obtain an order compelling the other person to comply with the wishes of your mother by delivering the ashes to you to comply with the wishes of your mother or take the person to small claims court and sue him for emotional distress damages.

The Power of Attorney for Finance, the Power of Attorney for Health Care and Living Will all are separate documents with separate authorities. All three of the documents are voided once the person is deceased. The Will is the controlling instrument and it identifies who the Executor of their estate is. The Will must be strictly followed. No other person has the authority to speak for the deceased other than the Executor.

A typical Living Will is different from a typical Healthcare Power of Attorney. They have different purposes. A Living Will is a declaration of the creators intentions and preferences. It does not grant authority unless it is in the nature of a power of attorney and names an agent. This would be unusual but in years past there was no statutorily recommended POA form and people could create instruments with dual purposes. A Living Will states the preferences of the creator but does not have to be followed. Power of Attorney for Healthcare creates an agent who is granted authority to act on behalf of the principal. Typically, a POA would include terms that cancel all prior POA's. The agent appointed under a POA is granted authority to act on behalf of the principal and make any with respect to the powers stated in the POA. Third parties can rely upon that authority. POAs appoint an agent and thus only grant authority so long as the principal is alive. Often POA's grant authority to make organ donations and similar authority as to cremations could be included but in both cases they merely state intentions since the authority and power granted only exist so long as the principal is alive, however, such arrangements can however be made before the death of the principal. A POA can be terminated at any time by the principal. The person with authority to act after the death of the deceased is the appointed executor under a Last Will and Testament. A Will would be filed with the clerk of the circuit court where the deceased had his or her residence. Upon a probate of the Will being opened, the court appointed executor has authority to make legal arrangements on behalf of the estate of the deceased.

Power of attorney for health care and power of attorney for financial matters deal with two entirely separate responsibilities. Unless it is specifically stated otherwise in the POA, the agent's authority often ends when the person (your mother in this case) is permanently incompetent. In any case, the POA only grants authority to act on behalf of another while the person is still alive. Once that person dies, the agent can no longer act on his/her behalf. A living will deals only with end of life decisions, such as whether to continue life support, and usually assigns a specific person the right to make these decisions and to receive the body afterwards. The LW may also express preferences about interment, funeral services, etc. If a living will was executed first and a POA afterwards, the POA only has the specific powers outlined in the POA document. The living will still applies to whatever isn't covered.

Neither the living Will nor health care (or financial) POA have any legal effect, as of the date of death. Neither document would have any relevance to funeral arrangements or disposition of cremains. As for the Will, it depends on a number of facts, which are not included in your summary. Was the Will ever probated? If not, then it is not relevant. It sounds like your brother (?) was allowed to run roughshod over the proceedings, but had no legal authority to do so. This is often the case when someone presents themselves as being "in charge."

In our office, we have clients sign both a living will and a durable healthcare power of attorney. We also utilize powers of attorney for financial matters. Of course, we make sure that they are all consistent. You should remember two things: (i) both can be revoked while the person who signed them is still competent mentally, and (ii) both expire at the death of that person. The will and trust would survive the death as to the decedent?s wishes. Many people call me saying that their loved one has died but that there is a power of attorney. Unfortunately, I must inform them that the POA expires at the death of the person who signed it and we then must look at the will and trust. It is important that all items are used consistently and as part of an overall estate plan.

Normally, the health care directive/power of attorney are separate from the general durable power of attorney for business and things other than medical care. There can be two attorneys in fact: one for healthcare and the other for other matters. It sounds to me like the person from out of town was misguided but since I haven't seen either document I can't say for certain.

Neither a power of attorney nor Advance Directive controls the disposition of remains. In Oregon (decedent was in Oregon, right?) a person can execute a separate directive concerning disposition of remains.