The Tug of War Ends

Following Ethel’s passing at the Hebrew Home on September 11, 2010, the simmering intra-family dispute over her fate boiled over into a pitched legal battle. Pollock sought to prevent the cremation. For their part, the funeral home, along with Greenberg and other secular relatives of Mrs. Baar, fought to have her initial wish to be cremated carried out. Several court hearings ensued and the media took an intense interest in the case, as Ethel’s remains awaited a final disposition.

At the final hearing in Judge Solomon’s courtroom in the New York State Supreme Court at 60 Centre St. in Manhattan on January 3, which was attended by members of the media including Mishpacha,the emotions of the parties to this hard-fought case were palpable. Greenberg and other relatives darted angry glances at Mark Kurzmann, the attorney representing Mr. Pollock, as he detailed their ongoing disregard for Ethel’s stated final wish and noted apparent improprieties in the drafting of her will and the pre-need agreement with the funeral home.

As the hearing progressed, Mr. Pollock, who flew to New York from his home in Israel specifically for the hearing, sat downcast in the back of the courtroom saying Tehillim. Ethel Gordon, along with Rabbi Elchonon Zohn, director of the Vaad Harabonim of Queens’ Chevra Kadisha and the National Association of Chevra Kadisha, and other supporters and members of the media, intently followed the proceedings from the spectators’ section.

Throughout the proceeding, Judge Solomon repeatedly rejected Kurzmann’s attempts to buttress Pollock’s account, and brought the hearing to an abrupt  close with the curt statement that “this whole thing is becoming disrespectful of Mrs. Baar … she’s waited so long.” The judge then penned a Notice of Entry granting the funeral home the right to cremate Ethel’s body, which, reportedly, was done the very next day.

As the hearing concluded and the respective parties to the suit made their way into the historic courthouse’s wide corridors, tensions had not abated. Pollock was taunted by his secular sister and other relatives; angry cries of “shame on you,” “mind your own business,” and “convert your own family” echoed in the hallway.

Seeing this take place, Rabbi Zohn approached Mr. Pollock, who was choking on tears over the bitter conclusion of this most wrenching ordeal and placed his hands on the shoulders of the young man, “Your aunt may unfortunately be cremated,” Rabbi Zohn explained, “but her neshamah will have the great zchus of saving Yidden from similar ends in the future.”

Turning the Tide

Indeed, attorneys and activists who have dealt with similar family disputes over the fate of loved ones relate that such cases are not uncommon and hold out hope that a high-profile case like this one will highlight the issue of end-of-life and postmortem decision-making and the legal and halachic questions it raises.

“We get a significant number of calls from people on how to ensure appropriate care for their relatives according to halachah,” says Rabbi Mordechai Biser, Esq., general counsel of Agudath Israel of America. “The bulk of these inquiries concern family disputes or disputes with hospital doctors on end-of-life care, such as whether to place or keep a patient on feeding tubes or life support, but we get many inquiries regarding postmortem issues as well.”

Rabbi Zohn relates that cremation rates among secular Jews run at about 30 percent, and the numbers are rising, corresponding to the growing popularity of cremation across America, which is expected to reach 50 percent of all deceased persons by 2050. He adds that disputes within Jewish families over these matters are rising particularly quickly. “The great baal teshuvah movement over the past decades has translated into many families where elderly secular parents have some frum children and grandchildren who would like to see them follow halachah for end-of-life care and kvuras Yisrael.”

Additionally, he stresses that these efforts aren’t limited to family members. “The notion of a “meis mitzvah” today doesn’t begin with death. It begins with lifetime interactions with secular family, neighbors, and coworkers.”

Fulfilling the Desire

Even once a person has already been convinced to opt for halachically acceptable end-of-life medical care or postmortem disposition, the battle hasn’t necessarily ended, as was tragically evident in the Baar case. While even secular individuals will oftentimes allow their frum relatives to ensure their wishes are carried out in accordance with halachah, contentious family disputes may still arise, especially regarding end-of-life medical care. In the absence of a clearly drafted will or health care or postmortem proxy, decision-making power falls, by law, to the next of kin, whether a surviving spouse, children, or other closest relative. If the decision-maker chooses to disregard halachah, the battle to override his decisions is a difficult one. If the next of kin includes several children who disagree on what ought to be done on their parents’ behalf, conflict is likely to ensue.

This reality was clearly evident in the Baar case, where Judge Solomon repeatedly cited both the written will authorizing cremation and Leibert Greenberg’s standing as Ethel’s nearest kin and the fiduciary of her estate as reasons to order cremation, despite the evidence adduced by Pollock of Mrs. Baar’s desire to receive a Jewish burial.

Nevertheless, leading trusts and estates attorney Jonathan Rikoon, a partner at Debevoise & Plimpton in Manhattan and coauthor of Stocker and Rikoon on Drawing Wills and Trusts and other works, says that this power is not limitless. “Regarding the disposition of property, there are very strong safeguards for the power of a written will, which cannot be overruled unless it is determined to have been coerced or otherwise invalid. However, any written directive or designated proxy on end-of- life and postmortem decisions must be in line with the will of the patient or deceased at the latest known point, or it can be overruled.”

Rabbi Biser cites two cases where even a written directive and authorized proxy were overruled — and a Jewish life was extended as a result.

A Jewish New Yorker who had lived a secular life, signed an advance medical directive drafted by the pro-euthanasia Society for the Right to Die. In it, he designated his secular son as his health care proxy. In 2005, he was on the verge of being denied a lifesaving feeding tube when a group of his frum relatives contacted Agudath Israel, which promptly connected them with an attorney to litigate the case. They filed affidavits attesting that the patient had become a baal teshuvah following his execution of the health care proxy.

The judge decided that there was sufficient proof that he would have wanted to follow halachah, even though he never specifically changed his end-of-life wishes, and ordered the tube inserted — even threatening to have hospital officials arrested if they failed to comply. Ultimately, the patient enjoyed a partial recovery, as well as subsequent visits from friends and relatives. In a similar case, relatives of a woman who had started to become more observant in later life prevailed in court over the woman’s own nonobservant daughter who was the designated health care proxy.

Sea of Ambiguity

Attorney Kurzmann expressed disappointment that similar consideration wasn’t given to Pollock’s testimony that Ethel had changed her mind following the signing of her 1999 will. “My client flew in from Israel to attend the hearing and was prepared to take the stand in a grueling, hostile environment. Yet, unfortunately, neither he, nor corroborating witnesses Ellen Gordon and Rabbi Hirschhorn, were ever allowed by the judge to testify. I am sure that the case would’ve been seen in an entirely different light if their testimony would’ve been heard in court firsthand.”

Mr. Rikoon says that decisions in cases where there is conflicting evidence regarding one’s wishes vary greatly from case to case and from judge to judge. “Judges are humans and they bring their own predilections to the table and, in these cases, they are given good deal of discretion as to whom to believe.”

Thus, judges will commonly rebut testimony of a claimed change of heart  by asserting that the said change of heart was merely aimed at keeping an amicable conversation, or that the person was either coerced or wasn’t lucid when making those remarks. A judge can even theoretically decide that an Orthodox Jew didn’t necessarily want to follow halachah in all matters or that one who requested that halachah be followed for end-of-life care didn’t necessarily want to follow it on postmortem issues, or vice versa. The practical implications of generalized health care directives, such as what constitutes “hope of recovery,” can also be endlessly disputed in court. Of course, those arguing for the secular case can also always claim that the person delegitimized or retracted their stated religious wish in subsequent conversations with them.

“When you get into the speculative ‘he said, she said’ conundrum, the burden of proof to overrule a written medical directive, living will, proxy, or next of kin is very heavy,” Rikoon concludes.

Winning Hearts, Convincing Minds

Although Ethel Baar’s righteous final wish was not honored, the fact that her frum relatives were able to convince her about the virtues of kvuras Yisrael proves that even secular Jews can be won over. Rabbi Biser relates, “We’ve heard some secular Yidden express sentiments like, ‘I didn’t live my life as a Jew, but I’d like to end my life as a Jew.’”

Rabbi Zohn adds that nonreligious individuals who are in the twilight of their lives are oftentimes more receptive to conversations of a spiritual nature. “Rav Yaakov Kaminetsky, ztz”l, once told me that there is no better time to speak with a nonobservant person about the fundamentals of Judaism and Jewish beliefs than when he enters old age. When you talk about the World to Come, Divine reward and punishment, the fact that departing this world isn’t the end, techiyas hameisim, etc., you can really reach a person and change their entire outlook on life.

“I’ve also seen people cite the Holocaust and other tragic periods in Jewish history where Jews were reduced to ashes by our enemies to convince dying Jews that cremation symbolizes the desire to irreversibly obliterate the fact that they ever existed. Even if the ashes will ostensibly be buried in a marked grave, ashes aren’t the person, aren’t identifiable, and don’t bring closure to the family during burial. Either way, less than 10 percent of ashes are ever buried.”

Understandably, the broaching of these sensitive topics must be planned with much foresight and wisdom. The ability of an Orthodox child or acquaintance to raise these topics depends on a host of factors, not the least of which is his relationship with the secular person. Rabbi Biser opines that it is particularly effective for a Torah-observant person to articulate his request using a framework that a nonreligious person can easily relate to, such as describing the pain he’d feel if halachah weren’t followed or if he didn’t have a gravesite to visit or at which to say Kaddish — points that James Pollock successfully used to convince his late great-aunt to opt for burial.

He added that where the prospective signer is not-yet-observant, rather than attempting to get them to sign the Agudah document, it is sometimes preferable to present them with a “pareve” health-care proxy that simply names the observant relative as the one to make health care decisions, without explicitly committing to follow halachah.

Additionally, sometimes, a person’s wish to have their remains cremated stem from concerns that burials are too expensive or that they aren’t environmentally friendly, although many members of the environmentalist “green movement” now acknowledge that cremations harm the environment far more than burial.

Ethel Baar’s Home on the Range

While the sight of Jews at the final hearing, some sporting Magen David pendants, aggressively fighting to deny their Jewish relative’s kvuras Yisrael, was heartrending enough, knowing a bit about the family’s Jewish lineage made the scene all the more painful.

Due to her family’s unusual history, the name Ethel Baar was widely known well before her death. The April 2007 issue of the Nshei Chabad Newsletter featured an intriguing interview and brief overview of her life, highlighting the struggles American Jews faced during the early part of the twentieth century.

Ethel was born in 1905 to Reb Yisroel Pinchos and Reva Paletz, z”l, Lithuanian immigrants who settled in the remote, sixty-family-strong Jewish community in Grand Forks, North Dakota. The Paletzes strictly adhered to their Yiddishkeit on these shores; Reva even had a mikveh built in her home for use by the women of Grand Forks and surrounding communities. On one occasion, Reb Yisroel Pinchas refused orders to remove his yarmulke for a citizenship photo, citing the American ideal of religious liberty. Reva’s brother, Rabbi Binyomin Papermaster, z”l, was Grand Forks’s rav, shochet, and chazzan, having been sent to assume those posts by Rav Yitzchok Elchonon Spector, ztz”l, of Kovno.

Unfortunately, as the forces of American assimilation took hold, a large segment of the community’s children abandoned their parents’ ways. Ethel and many of her relatives, too, succumbed to the siren song of the American melting pot once she had made her way from quiet, insular Grand Forks to the teeming New York metropolis in search of a career.

Ethel and her husband Jack, an editor and English tutor, resided in Manhattan and adopted a thoroughly secular lifestyle. However, Ellen Gordon recounts that the couple did retain an interest in their Jewish identity; they placed a mezuzah she bought them on their door and Jack took an intense interest in studying Maseches Gittin.

One significant link in Ethel’s Jewish identity was her ongoing and close relationship with James Pollock, a descendant of both the Paletzes and the Papermasters, who attended to her closely in her home for three years as he began to take on religious observance. Gordon reminisces, “While James lived with her, Ethel told me on Erev Pesach that I don’t have to bring her shmurah matzah, as I did every year, because he’ll supply her. It’s worth noting that a photo of James and his children was among the few possessions that Ethel brought to the Hebrew Home to have with her during her final years.”

Now, Ellen is trying to come to terms with the fact that she can no longer, in any way, visit the woman she saw as a bright, vibrant link to the past. “Whenever I would visit Ethel, I felt like I was visiting my mother (who passed away in 1980),” she sighs.

Clearing the Air

Reflecting on the cremation of her late mother’s dearest friend, Ellen Gordon tells Mishpacha, “Unfortunately, when Ethel told me about agreeing to be buried, I didn’t know to have her write it down. If we would’ve had her wishes on paper, she may very well have been spared cremation.”

All the experts interviewed for this article stress the importance of having a written medical directive and a health care proxy designating the person who will make end-of-life care and postmortem decisions, especially where there has been a change of heart, and if there is any chance of dispute with or between relatives. Even in instances where all relatives are in agreement, advance medical directives and the designation of health care proxies are important weapons with which to fight doctors or hospitals that are all too eager to hasten death and free up a bed for the next patient. Rabbi Biser notes that Agudath Israel’s Halachic Medical Directive records both the person’s designation of a health care proxy and his or her insistence on adhering to halachah in the same document in order to ensure that health-care decisions are made in accordance with halachah.

A personal wish on these matters recorded on paper will carry significant weight and perhaps override even their previously executed will or health-care proxies. Regarding the disposition of property, however, only the revocation of the previous will and the execution of a new or a legally valid codicil, or amendment, to the current one will typically carry the necessary weight against a valid earlier will.

Rikoon quips, “People don’t necessarily like lawyers, but this is one of the areas where getting one will spare lots of trouble (and lawyer fees) down the road. A lawyer who drafts a legally binding document stating the person’s desire, can back up its validity in court later on and it will be given lots of credence. At the very least, even an informal paper signed by the person stating their desire, and signed by two witnesses, goes a lot further than the testimony of others does.”

Rabbi Zohn observes that, regarding cremation, arranging a pre-need agreement with a cemetery for burial can also be seen as proof of intention, though having a written statement of a desire for burial is always recommended. He cites one recent case in which a North Carolina woman was spared cremation due to the existence of a pre-need agreement for burial, despite the fact that her secular relatives subsequently got her to sign a legally binding order to cremate a mere twelve hours before her death.

He cites another story in which a pre-need agreement saved a Jew’s body from cremation, and repaid an honorable deed for eternity. A young, unmarried baalas teshuvah contacted him about the need to prevent her secular relatives, who seemed intent on cremating her remains after her death, from being able to do so. She procrastinated before following through in her own case, but subsequently contacted Rabbi Zohn again to help in her effort to convince a friend who lost two relatives not to cremate them. They were baruch Hashem successful. Sensing the urgency of the matter, she immediately executed a pre-need burial agreement for herself.

Rabbi Zohn relates the bittersweet ending to the woman’s life. “Shortly after she made that agreement, she tragically passed away. However, she was zocheh to an extremely honorable levayah and her relatives fully respected her burial, which were both very unusual outcomes for her circumstance. Hashem clearly repaid her good deed middah k’neged middah.”

(Originally featured in Mishpacha, Issue 342)