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A00591 Summary:

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A00591 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           591
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 5, 2011
                                       ___________
 
        Introduced  by  M.  of A. GOTTFRIED, CASTELLI, DINOWITZ -- read once and
          referred to the Committee on Health
 
        AN ACT to amend the public health law, in  relation  to  disposition  of
          human remains
 
          The  People of the State of New York, represented in Senate and Assem-

        bly, do enact as follows:
 
     1    Section 1. Section 4201 of the public health law, as amended by  chap-
     2  ter 76 of the laws of 2006, paragraph (a) of subdivision 2 as amended by
     3  chapter  401 of the laws of 2007 and subdivision 4-a as added by chapter
     4  348 of the laws of 2009, is amended to read as follows:
     5    § 4201. Disposition of remains; responsibility therefor. 1. As used in
     6  this section, the following terms shall  have  the  following  meanings,
     7  unless the context otherwise requires:
     8    (a) "Cremation" means the incineration of human remains.
     9    (b)  "Disposition"  means  the care, disposal, transportation, burial,
    10  cremation or embalming of the body of a deceased person, and  associated
    11  measures.
    12    (c)  "Domestic  partner"  means  a person who, with respect to another
    13  person:
    14    (i) is formally a party in a domestic partnership or similar relation-

    15  ship with the other person, entered into pursuant to  the  laws  of  the
    16  United States or any state, local or foreign jurisdiction, or registered
    17  as  the  domestic  partner of the person with any registry maintained by
    18  the employer of either party or  any  state,  municipality,  or  foreign
    19  jurisdiction; or
    20    (ii)  is  formally recognized as a beneficiary or covered person under
    21  the other person's employment benefits or health insurance; or
    22    (iii) is dependent or mutually interdependent on the other person  for
    23  support,  as evidenced by the totality of the circumstances indicating a
    24  mutual intent to be domestic partners  including  but  not  limited  to:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02287-01-1

        A. 591                              2
 
     1  common  ownership  or joint leasing of real or personal property; common
     2  householding, shared income or  shared  expenses;  children  in  common;
     3  signs  of intent to marry or become domestic partners under subparagraph
     4  (i)  or  (ii) of this paragraph; or the length of the personal relation-
     5  ship of the persons.
     6    Each party to a domestic partnership shall be  considered  to  be  the
     7  domestic  partner  of  the  other  party.  "Domestic  partner" shall not
     8  include a person who is related to the other person by blood in a manner
     9  that would bar marriage to the other person in New York state. "Domestic
    10  partner" shall also not include any person who  is  less  than  eighteen
    11  years  of  age or who is the adopted child of the other person or who is

    12  related by blood in a manner that would bar marriage in New  York  state
    13  to a person who is the lawful spouse of the other person.
    14    (d) "Person" means a natural person eighteen years of age or older.
    15    2.    (a)  The following persons in descending priority shall have the
    16  right to control the disposition of the remains of such decedent:
    17    (i) the person designated in a written instrument executed pursuant to
    18  [the provisions of] this section;
    19    (ii) the decedent's surviving spouse;
    20    (ii-a) the decedent's surviving domestic partner;
    21    (iii) any of the decedent's surviving children eighteen years  of  age
    22  or older;
    23    (iv) either of the decedent's surviving parents;
    24    (v)  any of the decedent's surviving siblings eighteen years of age or
    25  older;
    26    (vi) a guardian appointed pursuant to article seventeen or seventeen-A

    27  of the surrogate's court procedure act  or  article  eighty-one  of  the
    28  mental hygiene law;
    29    (vii)  any person eighteen years of age or older who would be entitled
    30  to share in the estate of the decedent as specified in section 4-1.1  of
    31  the estates, powers and trusts law, with the person closest in relation-
    32  ship having the highest priority;
    33    (viii) a duly appointed fiduciary of the estate of the decedent;
    34    (ix)  a  close  friend or relative who is reasonably familiar with the
    35  decedent's wishes, including the decedent's religious or moral  beliefs,
    36  when  no  one  higher  on this list is reasonably available, willing, or
    37  competent to act, provided that  such  person  has  executed  a  written
    38  statement pursuant to subdivision seven of this section; or
    39    (x)  a  chief  fiscal  officer  of  a county or a public administrator

    40  appointed pursuant to article twelve  or  thirteen  of  the  surrogate's
    41  court  procedure  act, or any other person acting on behalf of the dece-
    42  dent, provided that such person has executed a written statement  pursu-
    43  ant to subdivision seven of this section.
    44    (b)  If a person designated to control the disposition of a decedent's
    45  remains, pursuant to this  subdivision,  is  not  reasonably  available,
    46  unwilling  or not competent to serve, and such person is not expected to
    47  become reasonably available, willing or competent, then those persons of
    48  equal priority and, if there be none, those persons of the next succeed-
    49  ing priority shall have the right to  control  the  disposition  of  the
    50  decedent's remains.
    51    (c)  The  person  in control of disposition, pursuant to this section,
    52  shall faithfully carry out the directions of the decedent to the  extent

    53  lawful and practicable, including consideration of the financial capaci-
    54  ty  of  the  decedent's  estate  and  other resources made available for
    55  disposition of the remains. The person in control of  disposition  shall
    56  also  dispose  of  the decedent in a manner appropriate to the moral and
        A. 591                              3
 
     1  individual beliefs and wishes of the decedent provided that such beliefs
     2  and wishes do not conflict with the  directions  of  the  decedent.  The
     3  person  in  control of disposition may seek to recover any costs related
     4  to  the  disposition  from  the  fiduciary  of  the decedent's estate in
     5  accordance with section eighteen hundred eleven of the surrogate's court
     6  procedure act.
     7    (d) No funeral director, undertaker, embalmer or  no  person  with  an

     8  interest  in, or who is an employee of any funeral firm, cemetery organ-
     9  ization or business operating a  crematory,  columbarium  or  any  other
    10  business,  who  also  controls  the disposition of remains in accordance
    11  with this section,  shall  receive  compensation  or  otherwise  receive
    12  financial benefit for disposing of the remains of a decedent.
    13    3.  The written instrument referred to in paragraph (a) of subdivision
    14  two of this section may be, but is not required to be, in  substantially
    15  the  following  form[, and]. It must be signed and dated by the decedent
    16  [and the agent] and [properly] witnessed by  one  witness  who  must  be
    17  eighteen  years  of  age  or older. A signed acceptance by the appointed
    18  agent is not required for the written instrument to be valid:

    19           APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
 
    20  I, _____________________________________________________________________
    21                           (Your name and address)
    22  being of sound mind, willfully and  voluntarily  make  known  my  desire
    23  that, upon my death, the disposition of my remains shall be controlled
    24  by ___________________________________________________________________ .
    25  (name of agent)
    26  With  respect  to  that subject only, I hereby appoint such person as my
    27  agent with respect to the disposition of my remains.
 
    28  SPECIAL DIRECTIONS:
 
    29  Set forth below are any special directions limiting the power granted to
    30  my agent as well as any instructions or wishes desired to be followed in
    31  the disposition of my remains:
    32  ________________________________________________________________________

    33  ________________________________________________________________________
    34  ________________________________________________________________________
    35  ________________________________________________________________________
    36  ________________________________________________________________________
 
    37    Indicate below if  you  have  entered  into  a  [pre-funded]  pre-need
    38  [agreement  subject  to  section four hundred fifty-three of the general
    39  business law] arrangement for funeral, cemetery or other merchandise  or
    40  service in advance of need:
    41    []  No,  I  have  not  entered into a [pre-funded] pre-need [agreement
    42  subject to section four hundred fifty-three of the general business law]
    43  arrangement.

    44    [] Yes, I have entered into a [pre-funded] pre-need [agreement subject
    45  to section  four  hundred  fifty-three  of  the  general  business  law]
    46  arrangement.
 
    47  ________________________________________________________________________
    48  (Name  of  [funeral  firm]  establishment  with which you entered into a
    49  [pre-funded]  pre-need  funeral  [agreement]  arrangement   to   provide
    50  merchandise and/or services)
        A. 591                              4
 
     1  AGENT:
     2  Name: __________________________________________________________________
     3  Address: _______________________________________________________________
     4  Telephone Number: ______________________________________________________
 
     5  SUCCESSORS:
 

     6    If  my  agent dies, resigns, or is unable to act, I hereby appoint the
     7  following persons (each to act alone  and  successively,  in  the  order
     8  named)  to serve as my agent to control the disposition of my remains as
     9  authorized by this document:
    10  1. First Successor
    11  Name: __________________________________________________________________
    12  Address: _______________________________________________________________
    13  Telephone Number: ______________________________________________________
 
    14  2. Second Successor
    15  Name: __________________________________________________________________
    16  Address: _______________________________________________________________
    17  Telephone Number: ______________________________________________________
 
    18  DURATION:
 
    19  This appointment becomes effective upon my death.
    20  PRIOR APPOINTMENT REVOKED:

    21    I hereby revoke any prior appointment of any  person  to  control  the
    22  disposition of my remains.
 
    23  Signed this____________________day of__________,____________.
    24  ________________________________________________________________________
    25  (Signature of person making the appointment)
 
    26  Statement by witness (must be 18 or older)
 
    27  I declare that the person who executed this document is personally known
    28  to  me  and  appears  to  be of sound mind and acting of his or her free
    29  will. He or she signed (or asked another to sign for him  or  her)  this
    30  document in my presence.
 
    31  Witness [1]: __________________ (signature)
 
    32  Address: _________________
 
    33  [Witness 2: _________________ (signature)

    34  Address: _________________]
 
    35  ACCEPTANCE AND ASSUMPTION BY AGENT:

    36    1.  I  have  no  reason to believe there has been a revocation of this
    37  appointment to control disposition of remains.
    38    2. I hereby accept this appointment.
    39    Signed this               day of           ,                .
    40    _______________________
    41    (Signature of agent)
        A. 591                              5
 
     1    4. [(a)] In the absence of  a  written  instrument  made  pursuant  to
     2  subdivision  three  of this section, the designation of a person for the
     3  disposition of one's remains or directions for the disposition of  one's
     4  remains in a will executed pursuant to the laws of the state of New York
     5  [prior  to  the  effective  date of this section], or otherwise executed
     6  pursuant to the laws of a jurisdiction outside the state  of  New  York,

     7  shall  be: [(i) considered reflective of the intent of the decedent] (a)
     8  deemed to be a written instrument executed pursuant to this section with
     9  respect to the disposition of the decedent's  remains;  and  [(ii)]  (b)
    10  superseded  by  a  written  instrument subsequently executed pursuant to
    11  subdivision three of this section, or by any other subsequent act by the
    12  decedent evidencing a specific intent to supersede  the  designation  or
    13  direction  in  such  a  will  with  respect  to  the  disposition of the
    14  decedent's remains. All actions taken reasonably and in good faith based
    15  upon such authorizations and directions  regarding  the  disposition  of
    16  one's remains in such a will shall be deemed valid regardless of whether
    17  such a will is later probated or subsequently declared invalid.

    18    [(b)  In the absence of a written instrument made pursuant to subdivi-
    19  sion three of this section, the designation of a person for the disposi-
    20  tion of one's remains or directions for the disposition of one's remains
    21  in a will executed pursuant to the laws of the state of New York  on  or
    22  after  the  effective  date  of  this  section,  shall  be  considered a
    23  reflection of the intent of the decedent with respect to the disposition
    24  of the decedent's remains, provided that the person who represents  that
    25  he or she is entitled to control the disposition of remains of the dece-
    26  dent has complied with subdivision five and paragraph (a) of subdivision
    27  seven  of this section and signed a written statement in accordance with

    28  paragraph (b) of subdivision seven of this section.]
    29    4-a. A written instrument under this section may limit the disposition
    30  of remains agent's authority to consent to organ or tissue  donation  or
    31  designate  another  person  to  do so, under article forty-three of this
    32  chapter. Failure to state wishes or instruction shall not  be  construed
    33  to imply a wish not to donate.
    34    5.  A  written instrument executed under this section shall be revoked
    35  upon the execution by the decedent of a subsequent  written  instrument,
    36  or  by  any  other  subsequent act by the decedent evidencing a specific
    37  intent  to  revoke  the  prior  written  instrument  [and   directions].
    38  Directions  on  disposition  and  agent designations in a [will] written

    39  instrument made pursuant to [subdivision three of] this section shall be
    40  superseded by a subsequently executed [will or] written instrument  made
    41  pursuant to this section, or by any other subsequent act of the decedent
    42  evidencing  a specific intent to supersede the direction or designation.
    43  The designation of the decedent's spouse or domestic partner as an agent
    44  in control of disposition of remains shall be revoked upon  the  divorce
    45  or  legal  separation  of the decedent and spouse, or termination of the
    46  domestic partnership, unless the decedent specified  in  writing  other-
    47  wise.
    48    6.  A person acting reasonably and in good faith, shall not be subject
    49  to any civil liability for:
    50    (a) representing himself or herself to be the person in control  of  a
    51  decedent's disposition;

    52    (b)  disposing  of  a  decedent's  remains if done with the reasonable
    53  belief that such disposal is consistent with this section; or
    54    (c) identifying a decedent.
    55    7. No cemetery organization, business operating a crematory or  colum-
    56  barium, funeral director, undertaker, embalmer, or funeral firm shall be
        A. 591                              6
 
     1  held  liable for actions taken reasonably and in good faith to carry out
     2  the written directions of a decedent as stated in [a will or in] a writ-
     3  ten instrument executed pursuant to this section. No cemetery  organiza-
     4  tion,  business  operating a crematory or columbarium, funeral director,
     5  undertaker, embalmer or funeral firm shall be held  liable  for  actions
     6  taken  reasonably  and  in  good  faith to carry out the directions of a

     7  person who represents that he or she  is  entitled  to  control  of  the
     8  disposition  of  remains,  provided that such action is taken only after
     9  requesting and receiving a written statement that such person:
    10    (a) is the designated agent of the decedent designated in a [will  or]
    11  written instrument executed pursuant to this section; or
    12    (b) that he or she has no knowledge that the decedent executed a writ-
    13  ten   instrument  pursuant  to  this  section  [or  a  will]  containing
    14  directions for the disposition of his  or  her  remains  and  that  such
    15  person  is  the  person  having  priority  under subdivision two of this
    16  section.
    17    8. Every dispute under this section relating to the disposition of the
    18  remains of a decedent shall be resolved by a court of  competent  juris-

    19  diction pursuant to a special proceeding under article four of the civil
    20  practice  law  and  rules.  No person providing services relating to the
    21  disposition of the remains of  a  decedent  shall  be  held  liable  for
    22  refusal  to  provide  such  services, when control of the disposition of
    23  such remains is contested, until such person receives a court  order  or
    24  other  form  of notification signed by all parties or their legal repre-
    25  sentatives to the dispute establishing such control.
    26    9. This section does not supersede, alter or abridge any provision  of
    27  section  four  hundred  fifty-three  of the general business law. In the
    28  event of a conflict or  ambiguity,  [the  provisions  of]  section  four
    29  hundred fifty-three of the general business law shall govern.
    30    10. This section does not supersede, alter or abridge any provision of

    31  article  forty-three  of this chapter including, but not limited to, the
    32  persons authorized to execute an anatomical  gift  pursuant  to  section
    33  forty-three hundred one of this chapter.
    34    11. This section does not diminish the enforceability of a contract or
    35  agreement  in  which a person controlling the disposition of the remains
    36  of a decedent agrees to pay for goods or services in connection with the
    37  disposition of such remains.
    38    § 2. This act shall take effect immediately.