S01924 Summary:

Add S4201, Pub Health L
Relates to the rights of certain individuals of the decedent to control the disposition of such decedent's remains in the absence of a written instrument; creates a priorty list of those persons which may have the right to control the disposition of the decedent's remains; gives domestic partners the same priority status as surviving spouses; defines domestic partner.
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S01924 Actions:

06/17/2005PRINT NUMBER 1924A
06/24/2005referred to codes
06/24/2005substituted for a1238a
06/24/2005ordered to third reading rules cal.998
06/24/2005passed assembly
06/24/2005returned to senate
02/03/2006SIGNED CHAP.768
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S01924 Memo:

Memo not available
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S01924 Text:

                STATE OF NEW YORK
                               2005-2006 Regular Sessions
                    IN SENATE
                                    February 7, 2005
        Introduced  by  Sens.  BALBONI,  LEIBELL,  MALTESE, MEIER, RATH, ROBACH,
          SPANO, VOLKER -- read twice and ordered printed, and when  printed  to
          be  committed to the Committee on Health -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-

        AN ACT to amend the public health law, in relation to the disposition of
          a decedent's remains
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The public health law is amended by adding  a  new  section
     2  4201 to read as follows:
     3    § 4201. Disposition of remains; responsibility therefor. 1. As used in
     4  this  section,  the  following  terms shall have the following meanings,
     5  unless the context otherwise requires:
     6    (a) "Cremation" means the incineration of human remains.
     7    (b) "Disposition" means the cremation, burial or interment, and trans-
     8  portation of human remains.
     9    (c) "Domestic partner" means a person who,  with  respect  to  another
    10  person:

    11    (i)  is formally a party in a domestic partnership entered into pursu-
    12  ant to the laws of the United States or of any state, local  or  foreign
    13  jurisdiction; or
    14    (ii)  is  formally recognized as a beneficiary or covered person under
    15  the other person's employment benefits or health insurance; or
    16    (iii) is at least eighteen years of  age  and  dependent  or  mutually
    17  interdependent  on  the  other  person  for support, indicating a mutual
    18  intent to be domestic partners. For purposes of  this  subdivision,  the
    19  person asserting a domestic partnership shall provide original documents
    20  as follows:
    21    (A)  Proof  of six months of cohabitation in the form of one of any of
    22  the following documents:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 1924--A                          2
     1    (1) Auto registration;
     2    (2) Bank statement;
     3    (3) Driver's license or state-issued non-driver identification card;
     4    (4) Mailed insurance benefits statement;
     5    (5) Lease agreement listing both parties;
     6    (6) Mortgage agreement listing both parties; or
     7    (7) Telephone or utility bill; and
     8    (B)  Proof  of  financial interdependence in the form of two of any of
     9  the following:
    10    (1) Joint ownership of a residence;

    11    (2) Joint renters' or homeowners' insurance policy;
    12    (3) Beneficiary designation on the other's life insurance policy;
    13    (4) Mutually granted durable power of attorney;
    14    (5) Designation of one person as  the  representative  payee  for  the
    15  other person's benefits;
    16    (6)  Designation  of one person as the health care agent on the health
    17  care proxy for the other person or designation of a health care power of
    18  attorney;
    19    (7) Joint bank account or joint credit card; or
    20    (8) Lease agreement listing both parties.
    21    Each party to a domestic partnership shall be  considered  to  be  the
    22  domestic  partner  of  the  other  party.  "Domestic  partner" shall not

    23  include a person who is related to the other person by blood in a manner
    24  that would bar marriage to the other person in New York state.
    25    (d) "Reasonably available" means the  person  may  be  contacted  with
    26  diligent effort.
    27    2.  (a)  The  following  persons in descending priority shall have the
    28  right to control the disposition, including burial, interment or  crema-
    29  tion,  of  the remains of such decedent and any and all reasonable costs
    30  associated therewith and the disposition of any part of  the  decedent's
    31  body pursuant to article forty-three of this chapter:
    32    (i)  the  person designated in a will or a written instrument executed
    33  pursuant to the provisions of this section;
    34    (ii) the decedent's surviving spouse;

    35    (ii-a) domestic partner as defined by paragraph (c) of subdivision one
    36  of this section;
    37    (iii) any of the decedent's surviving children eighteen years  of  age
    38  or older;
    39    (iv) either of the decedent's surviving parents;
    40    (v)  any of the decedent's surviving siblings eighteen years of age or
    41  older;
    42    (vi) a guardian appointed pursuant to article seventeen or seventeen-a
    43  of the surrogate's court procedure act  or  article  eighty-one  of  the
    44  mental hygiene law; or
    45    (vii) a duly appointed fiduciary of the estate of the decedent.
    46    (b)  If a person designated to control the disposition of a decedent's
    47  remains, pursuant to this  subdivision,  is  not  reasonably  available,

    48  unwilling  or not competent to serve, and such person is not expected to
    49  become reasonably available, willing or competent, then those persons of
    50  equal priority and, if there be none, those persons of the next succeed-
    51  ing priority shall have the right to dispose of the decedent's remains.
    52    (c) The person in control of disposition, pursuant  to  this  section,
    53  shall  faithfully carry out the directions of the decedent to the extent
    54  the decedent's estate and agent are financially and reasonably  able  to
    55  do  so.   The person in control of disposition shall also dispose of the
    56  decedent in a manner appropriate to the moral and individual beliefs  of

        S. 1924--A                          3

     1  the  decedent provided that such morals and beliefs do not conflict with
     2  the directions of the decedent.  The person in  control  of  disposition
     3  shall  be  liable  for the reasonable cost of disposition including, but
     4  not  limited to, burial and/or cremation and may recover such costs from
     5  the fiduciary of the decedent's estate in accordance with section  eigh-
     6  teen hundred eleven of the surrogate's court procedure act.
     7    3.  The written instrument referred to in paragraph (a) of subdivision
     8  two of this section shall be in substantially the following form:
    10  I, _____________________________________________________________________
    11                           (Your name and address)

    12  being of sound mind, willfully and  voluntarily  make  known  my  desire
    13  that,  upon  my death, the disposition of my remains shall be controlled
    14  by                                                                     .
    15                   (name of agent)
    16  With respect to that subject only, I hereby appoint such  person  as  my
    17  agent  with  respect  to the disposition of my remains, including crema-
    18  tion.
    20    Set forth below are any special directions limiting the power  granted
    21  to my agent as well as any instructions or wishes desired to be followed
    22  in the disposition of my remains, to the extent that my estate and agent
    23  are financially and reasonably able to do so:

    24  ________________________________________________________________________
    25  ________________________________________________________________________
    26  ________________________________________________________________________
    27  ________________________________________________________________________
    28  ________________________________________________________________________
    29    Indicate  below  if  you  have entered into a pre-need arrangement for
    30  funeral merchandise or service in advance of need:
    31    [ ]  No, I have not entered into a pre-need arrangement.
    32    [ ]  Yes, I have entered into a pre-need arrangement.
    33  ________________________________________________________________________

    34  (Name of establishment with which you arranged merchandise and services)
    35  AGENT:
    36  Name: __________________________________________________________________
    37  Address: _______________________________________________________________
    38  Telephone Number: ______________________________________________________
    40    If my agent dies, resigns, or is unable to act, I hereby  appoint  the
    41  following  persons  (each  to  act  alone and successively, in the order
    42  named) to serve as my agent to control the disposition of my remains  as
    43  authorized by this document:
    44  1. First Successor
    45  Name: __________________________________________________________________

    46  Address: _______________________________________________________________
    47  Telephone Number: ______________________________________________________
    48  2. Second Successor

        S. 1924--A                          4
     1  Name: __________________________________________________________________
     2  Address: _______________________________________________________________
     3  Telephone Number: ______________________________________________________
     4  DURATION:
     5    This appointment becomes effective upon my death.
     7    I  hereby  revoke  any  prior appointment of any person to control the
     8  disposition of my remains.
     9  RELIANCE:

    10    I hereby agree that any cemetery organization,  business  operating  a
    11  crematory  or columbarium, funeral director, embalmer, or funeral estab-
    12  lishment which receives a copy of this document may act  under  it.  Any
    13  modification or revocation of this document shall not be effective as to
    14  any  such party until that party receives actual notice of the modifica-
    15  tions or revocation. No such party shall be liable because  of  reliance
    16  on a copy of this document.
    17  Statement by witness (must be 18 or older)
    18    I  declare  that  the  person who executed this document is personally
    19  known to me and appears to be of sound mind and acting  of  his  or  her
    20  free  will.  He  or she signed (or asked another to sign for him or her)

    21  this document in my presence.
    22  Witness 1:  _________________
    23               (signature)
    24  Address:    _________________
    25  Witness 2:  _________________
    26               (signature)
    27  Address:    _________________
    29    1. I have no actual knowledge or actual notice of revocation  of  this
    30  appointment to control disposition of remains.
    31    2.  I  hereby  accept  this  appointment  and  assume  the obligations
    32  provided by this appointment for the reasonable costs of disposition.  I
    33  have the right, however, to  be  reimbursed  by  the  fiduciary  of  the
    34  decedent's estate, provided such costs are determined reasonable.

    35    Signed this               day of            ,             .
    36                                         _______________________
    37                                          (your signature)
    38    4. A person may provide for the disposition of his or her remains in a
    39  will or a written instrument executed pursuant to this section.  A writ-
    40  ten  instrument  shall  be  deemed  valid  under subdivision two of this
    41  section if the wording complies with the provisions of subdivision three
    42  of this section, is properly completed,  signed  by  the  decedent,  the
    43  agent  and each successor, and the signature of the decedent is acknowl-
    44  edged.

        S. 1924--A                          5

     1    5. A written instrument executed under this section shall  be  revoked
     2  upon  execution  by the principal of a subsequent written instrument and
     3  directions on disposition and agent designations  in  a  will  shall  be
     4  superseded by a subsequent duly executed will or written instrument made
     5  pursuant  to  subdivision  three of this section. The designation of the
     6  principal's spouse as an agent in  control  of  disposition  of  remains
     7  shall  be  revoked upon the divorce or legal separation of the principal
     8  and spouse unless the principal specified in writing otherwise.
     9    6. Notwithstanding any other provision of the  law  to  the  contrary,
    10  directions  in a will for the disposition of the remains of the testator

    11  shall be carried out immediately without the necessity of probate.   All
    12  actions  taken  reasonably  and in good faith based upon a will shall be
    13  deemed valid regardless of whether the will is probated or  subsequently
    14  declared invalid.
    15    7.  A person acting reasonably and in good faith, shall not be subject
    16  to any civil liability for:
    17    (a)  representing  himself or herself to be the person in control of a
    18  decedent's disposition;
    19    (b) disposing of a decedent's remains  if  done  with  the  reasonable
    20  belief that such disposal is not contrary to the wishes of the decedent;
    21  or
    22    (c) identifying a decedent.
    23    8.  No cemetery organization, business operating a crematory or colum-

    24  barium, funeral director, undertaker, embalmer, or funeral establishment
    25  shall be held liable for actions taken reasonably and in good  faith  to
    26  carry out the written directions of a decedent as stated in a will or in
    27  a  written  instrument  executed  pursuant to this section.  No cemetery
    28  organization, business operating a  crematory  or  columbarium,  funeral
    29  director,  undertaker,  embalmer  or funeral establishment shall be held
    30  liable for actions taken reasonably and in good faith to carry  out  the
    31  directions  of  a  person  who  represents that he or she is entitled to
    32  control of the disposition of remains,  provided  that  such  action  is
    33  taken  only  after requesting and receiving reasonable verification that
    34  such person:

    35    (a) is the designated agent of the decedent designated in  a  will  or
    36  written instrument executed pursuant to this section; or
    37    (b) signs a written statement that he or she has no knowledge that the
    38  decedent  executed  a  written  instrument pursuant to this section or a
    39  will containing directions for the disposition of his or her remains and
    40  that such person is the person having priority under subdivision two  of
    41  this section.
    42    9. Every dispute relating to the disposition of the remains of a dece-
    43  dent among persons of equal priority pursuant to subdivision two of this
    44  section  shall  be  resolved  by  a court of competent jurisdiction.  No
    45  person providing services relating to the disposition of the remains  of

    46  a  decedent  shall  be held liable for refusal to provide such services,
    47  when control of the disposition of such remains is contested, until such
    48  person receives a court order or other form of  notification  signed  by
    49  all parties to the dispute establishing such control.
    50    § 2. This act shall take effect on the one hundred eightieth day after
    51  it shall have become a law.
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