Bill Text: NY A00977 | 2019-2020 | General Assembly | Introduced


Bill Title: Provides for clarification of the disposition of human remains.

Spectrum: Moderate Partisan Bill (Democrat 6-1)

Status: (Introduced - Dead) 2020-01-08 - referred to health [A00977 Detail]

Download: New_York-2019-A00977-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                           977
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 14, 2019
                                       ___________
        Introduced  by M. of A. GOTTFRIED, DINOWITZ, D'URSO, FAHY, GALEF -- 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, paragraph (e) of subdivision 2 as added
     4  by  section  1 of part B of chapter 491 of the laws of 2012, subdivision
     5  4-a as added by chapter 348 of the laws of 2009, is amended to  read  as
     6  follows:
     7    § 4201. Disposition of remains; responsibility therefor. 1. As used in
     8  this  section,  the  following  terms shall have the following meanings,
     9  unless the context otherwise requires:
    10    (a) "Cremation" means the incineration of human remains.
    11    (b) "Disposition" means the care,  disposal,  transportation,  burial,
    12  cremation  or embalming of the body of a deceased person, and associated
    13  measures.
    14    (c) "Domestic partner" means a person who,  with  respect  to  another
    15  person:
    16    (i) is formally a party in a domestic partnership or similar relation-
    17  ship  with  the  other  person, entered into pursuant to the laws of the
    18  United States or any state, local or foreign jurisdiction, or registered
    19  as the domestic partner of the person with any  registry  maintained  by
    20  the  employer  of  either  party  or any state, municipality, or foreign
    21  jurisdiction; or
    22    (ii) is formally recognized as a beneficiary or covered  person  under
    23  the other person's employment benefits or health insurance; or
    24    (iii)  is dependent or mutually interdependent on the other person for
    25  support, as evidenced by the totality of the circumstances indicating  a
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03382-01-9

        A. 977                              2
     1  mutual  intent  to  be  domestic  partners including but not limited to:
     2  common ownership or joint leasing of real or personal  property;  common
     3  householding,  shared  income  or  shared  expenses; children in common;
     4  signs  of intent to marry or become domestic partners under subparagraph
     5  (i) or (ii) of this paragraph; or the length of the  personal  relation-
     6  ship of the persons.
     7    Each  party  to  a  domestic partnership shall be considered to be the
     8  domestic partner of  the  other  party.  "Domestic  partner"  shall  not
     9  include a person who is related to the other person by blood in a manner
    10  that would bar marriage to the other person in New York state. "Domestic
    11  partner"  shall  also  not  include any person who is less than eighteen
    12  years of age or who is the adopted child of the other person or  who  is
    13  related  by  blood in a manner that would bar marriage in New York state
    14  to a person who is the lawful spouse of the other person.
    15    (d) "Person" means a natural person eighteen years of age or older.
    16    2.  (a) The following persons in descending priority  shall  have  the
    17  right to control the disposition of the remains of such decedent:
    18    (i) the person designated in a written instrument executed pursuant to
    19  [the provisions of] this section;
    20    (ii) the decedent's surviving spouse;
    21    (ii-a) the decedent's surviving domestic partner;
    22    (iii)  any  of the decedent's surviving children eighteen years of age
    23  or older;
    24    (iv) either of the decedent's surviving parents;
    25    (v) any of the decedent's surviving siblings eighteen years of age  or
    26  older;
    27    (vi) a guardian appointed pursuant to article seventeen or seventeen-A
    28  of  the  surrogate's  court  procedure  act or article eighty-one of the
    29  mental hygiene law;
    30    (vii) any person eighteen years of age or older who would be  entitled
    31  to  share in the estate of the decedent as specified in section 4-1.1 of
    32  the estates, powers and trusts law, with the person closest in relation-
    33  ship having the highest priority;
    34    (viii) a duly appointed fiduciary of the estate of the decedent;
    35    (ix) a close friend or relative who is reasonably  familiar  with  the
    36  decedent's  wishes, including the decedent's religious or moral beliefs,
    37  when no one higher on this list is  reasonably  available,  willing,  or
    38  competent  to  act,  provided  that  such  person has executed a written
    39  statement pursuant to subdivision seven of this section; or
    40    (x) a chief fiscal officer of  a  county  or  a  public  administrator
    41  appointed  pursuant  to  article  twelve  or thirteen of the surrogate's
    42  court procedure act, or any other person acting on behalf of  the  dece-
    43  dent,  provided that such person has executed a written statement pursu-
    44  ant to subdivision seven of this section.
    45    (b) If a person designated to control the disposition of a  decedent's
    46  remains,  pursuant  to  this  subdivision,  is not reasonably available,
    47  unwilling or not competent to serve, and such person is not expected  to
    48  become reasonably available, willing or competent, then those persons of
    49  equal priority and, if there be none, those persons of the next succeed-
    50  ing  priority  shall  have  the  right to control the disposition of the
    51  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  lawful and practicable, including consideration of the financial capaci-
    55  ty of the decedent's estate  and  other  resources  made  available  for
    56  disposition  of  the remains. The person in control of disposition shall

        A. 977                              3
     1  also dispose of the decedent in a manner appropriate to  the  moral  and
     2  individual beliefs and wishes of the decedent provided that such beliefs
     3  and  wishes  do  not  conflict  with the directions of the decedent. The
     4  person  in  control of disposition may seek to recover any costs related
     5  to the disposition from  the  fiduciary  of  the  decedent's  estate  in
     6  accordance with section eighteen hundred eleven of the surrogate's court
     7  procedure act.
     8    (d)  No  funeral  director,  undertaker, embalmer or no person with an
     9  interest in, or who is an employee of any funeral firm, cemetery  organ-
    10  ization  or  business  operating  a  crematory, columbarium or any other
    11  business, who also controls the disposition  of  remains  in  accordance
    12  with  this  section,  shall  receive  compensation  or otherwise receive
    13  financial benefit for disposing of the remains of a decedent.
    14    (e) No person who: (1) at the time of the decedent's  death,  was  the
    15  subject  of  an  order of protection protecting the decedent; or (2) has
    16  been arrested or charged with any crime set forth in article one hundred
    17  twenty-five of the penal law as a result of any action allegedly causal-
    18  ly related to the death of the decedent shall have the right to  control
    19  the disposition of the remains of the decedent. However, the application
    20  of  this paragraph in a particular case may be waived or modified in the
    21  interest of justice by order of (i) the court that issued the  order  of
    22  protection  or  in which the criminal action against the person is pend-
    23  ing, or a superior court in which an  action  or  proceeding  under  the
    24  domestic  relations  law  or the family court act between the person and
    25  the decedent was pending at the time of the decedent's death, or (ii) if
    26  proceeding in that court would cause inappropriate delay, a court  in  a
    27  special proceeding.
    28    3.  The written instrument referred to in paragraph (a) of subdivision
    29  two of this section may be, but is not required to be, in  substantially
    30  the  following  form[, and]. It must be signed and dated by the decedent
    31  [and the agent] and [properly] witnessed by  one  witness  who  must  be
    32  eighteen  years  of  age  or older. A signed acceptance by the appointed
    33  agent is not required for the written instrument to be valid:
    34           APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
    35  I, _____________________________________________________________________
    36                           (Your name and address)
    37  being of sound mind, willfully and  voluntarily  make  known  my  desire
    38  that, upon my death, the disposition of my remains shall be controlled
    39  by ___________________________________________________________________ .
    40  (name of agent)
    41  With  respect  to  that subject only, I hereby appoint such person as my
    42  agent with respect to the disposition of my remains.
    43  SPECIAL DIRECTIONS:
    44  Set forth below are any special directions limiting the power granted to
    45  my agent as well as any instructions or wishes desired to be followed in
    46  the disposition of my remains:
    47  ________________________________________________________________________
    48  ________________________________________________________________________
    49  ________________________________________________________________________
    50  ________________________________________________________________________
    51  ________________________________________________________________________

        A. 977                              4
     1    Indicate below if  you  have  entered  into  a  [pre-funded]  pre-need
     2  [agreement  subject  to  section four hundred fifty-three of the general
     3  business law] arrangement for funeral, cemetery or other merchandise  or
     4  service in advance of need:
     5    []  No,  I  have  not  entered into a [pre-funded] pre-need [agreement
     6  subject to section four hundred fifty-three of the general business law]
     7  arrangement.
     8    [] Yes, I have entered into a [pre-funded] pre-need [agreement subject
     9  to section  four  hundred  fifty-three  of  the  general  business  law]
    10  arrangement.
    11  ________________________________________________________________________
    12  (Name  of  [funeral  firm]  establishment  with which you entered into a
    13  [pre-funded]  pre-need  funeral  [agreement]  arrangement   to   provide
    14  merchandise and/or services)
    15  AGENT:
    16  Name: __________________________________________________________________
    17  Address: _______________________________________________________________
    18  Telephone Number: ______________________________________________________
    19  SUCCESSORS:
    20    If  my  agent dies, resigns, or is unable to act, I hereby appoint the
    21  following persons (each to act alone  and  successively,  in  the  order
    22  named)  to serve as my agent to control the disposition of my remains as
    23  authorized by this document:
    24  1. First Successor
    25  Name: __________________________________________________________________
    26  Address: _______________________________________________________________
    27  Telephone Number: ______________________________________________________
    28  2. Second Successor
    29  Name: __________________________________________________________________
    30  Address: _______________________________________________________________
    31  Telephone Number: ______________________________________________________
    32  DURATION:
    33  This appointment becomes effective upon my death.
    34  PRIOR APPOINTMENT REVOKED:
    35    I hereby revoke any prior appointment of any  person  to  control  the
    36  disposition of my remains.
    37  Signed this____________________day of__________,____________.
    38  ________________________________________________________________________
    39  (Signature of person making the appointment)
    40  Statement by witness (must be 18 or older)
    41  I declare that the person who executed this document is personally known
    42  to  me  and  appears  to  be of sound mind and acting of his or her free
    43  will. He or she signed (or asked another to sign for him  or  her)  this
    44  document in my presence.

        A. 977                              5
     1  Witness [1]: __________________ (signature)
     2  Address: _________________
     3  [Witness 2: _________________ (signature)

     4  Address: _________________]
     5  ACCEPTANCE AND ASSUMPTION BY AGENT:
     6    1.  I  have  no  reason to believe there has been a revocation of this
     7  appointment to control disposition of remains.
     8    2. I hereby accept this appointment.
     9    Signed this               day of           ,                .
    10    _______________________
    11    (Signature of agent)
    12    4. [(a)] In the absence of  a  written  instrument  made  pursuant  to
    13  subdivision  three  of this section, the designation of a person for the
    14  disposition of one's remains or directions for the disposition of  one's
    15  remains in a will executed pursuant to the laws of the state of New York
    16  [prior  to  the  effective  date of this section], or otherwise executed
    17  pursuant to the laws of a jurisdiction outside the state  of  New  York,
    18  shall  be: [(i) considered reflective of the intent of the decedent] (a)
    19  deemed to be a written instrument executed pursuant to this section with
    20  respect to the disposition of the decedent's  remains;  and  [(ii)]  (b)
    21  superseded  by  a  written  instrument subsequently executed pursuant to
    22  subdivision three of this section, or by any other subsequent act by the
    23  decedent evidencing a specific intent to supersede  the  designation  or
    24  direction  in  such  a  will  with  respect  to  the  disposition of the
    25  decedent's remains. All actions taken reasonably and in good faith based
    26  upon such authorizations and directions  regarding  the  disposition  of
    27  one's remains in such a will shall be deemed valid regardless of whether
    28  such a will is later probated or subsequently declared invalid.
    29    [(b)  In the absence of a written instrument made pursuant to subdivi-
    30  sion three of this section, the designation of a person for the disposi-
    31  tion of one's remains or directions for the disposition of one's remains
    32  in a will executed pursuant to the laws of the state of New York  on  or
    33  after  the  effective  date  of  this  section,  shall  be  considered a
    34  reflection of the intent of the decedent with respect to the disposition
    35  of the decedent's remains, provided that the person who represents  that
    36  he or she is entitled to control the disposition of remains of the dece-
    37  dent has complied with subdivision five and paragraph (a) of subdivision
    38  seven  of this section and signed a written statement in accordance with
    39  paragraph (b) of subdivision seven of this section.]
    40    4-a. A written instrument under this section may limit the disposition
    41  of remains agent's authority to consent to organ or tissue  donation  or
    42  designate  another  person  to  do so, under article forty-three of this
    43  chapter. Failure to state wishes or instruction shall not  be  construed
    44  to imply a wish not to donate.
    45    5.  A  written instrument executed under this section shall be revoked
    46  upon the execution by the decedent of a subsequent  written  instrument,
    47  or  by  any  other  subsequent act by the decedent evidencing a specific
    48  intent  to  revoke  the  prior  written  instrument  [and   directions].
    49  Directions  on  disposition  and  agent designations in a [will] written
    50  instrument made pursuant to [subdivision three of] this section shall be
    51  superseded by a subsequently executed [will or] written instrument  made

        A. 977                              6
     1  pursuant to this section, or by any other subsequent act of the decedent
     2  evidencing  a specific intent to supersede the direction or designation.
     3  The designation of the decedent's spouse or domestic partner as an agent
     4  in  control  of disposition of remains shall be revoked upon the divorce
     5  or legal separation of the decedent and spouse, or  termination  of  the
     6  domestic  partnership,  unless  the decedent specified in writing other-
     7  wise.
     8    6. A person acting reasonably and in good faith, shall not be  subject
     9  to any civil liability for:
    10    (a)  representing  himself or herself to be the person in control of a
    11  decedent's disposition;
    12    (b) disposing of a decedent's remains  if  done  with  the  reasonable
    13  belief that such disposal is consistent with this section; or
    14    (c) identifying a decedent.
    15    7.  No cemetery organization, business operating a crematory or colum-
    16  barium, funeral director, undertaker, embalmer, or funeral firm shall be
    17  held liable for actions taken reasonably and in good faith to carry  out
    18  the written directions of a decedent as stated in [a will or in] a writ-
    19  ten  instrument executed pursuant to this section. No cemetery organiza-
    20  tion, business operating a crematory or columbarium,  funeral  director,
    21  undertaker,  embalmer  or  funeral firm shall be held liable for actions
    22  taken reasonably and in good faith to carry  out  the  directions  of  a
    23  person  who  represents  that  he  or  she is entitled to control of the
    24  disposition of remains, provided that such action is  taken  only  after
    25  requesting and receiving a written statement that such person:
    26    (a)  is the designated agent of the decedent designated in a [will or]
    27  written instrument executed pursuant to this section; or
    28    (b) that he or she has no knowledge that the decedent executed a writ-
    29  ten  instrument  pursuant  to  this  section  [or  a  will]   containing
    30  directions  for  the  disposition  of  his  or her remains and that such
    31  person is the person having  priority  under  subdivision  two  of  this
    32  section.
    33    8. Every dispute under this section relating to the disposition of the
    34  remains  of  a decedent shall be resolved by a court of competent juris-
    35  diction pursuant to a special proceeding under article four of the civil
    36  practice law and rules. No person providing  services  relating  to  the
    37  disposition  of  the  remains  of  a  decedent  shall be held liable for
    38  refusal to provide such services, when control  of  the  disposition  of
    39  such  remains  is contested, until such person receives a court order or
    40  other form of notification signed by all parties or their  legal  repre-
    41  sentatives to the dispute establishing such control.
    42    9.  This section does not supersede, alter or abridge any provision of
    43  section four hundred fifty-three of the general  business  law.  In  the
    44  event  of  a  conflict  or  ambiguity,  [the provisions of] section four
    45  hundred fifty-three of the general business law shall govern.
    46    10. This section does not supersede, alter or abridge any provision of
    47  article forty-three of this chapter including, but not limited  to,  the
    48  persons  authorized  to  execute  an anatomical gift pursuant to section
    49  forty-three hundred one of this chapter.
    50    11. This section does not diminish the enforceability of a contract or
    51  agreement in which a person controlling the disposition of  the  remains
    52  of a decedent agrees to pay for goods or services in connection with the
    53  disposition of such remains.
    54    § 2. This act shall take effect immediately.
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