senate Bill S2307

2013-2014 Legislative Session

Provides for clarification of the disposition of human remains

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Archive: Last Bill Status - STRICKEN


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 28, 2013 recommit, enacting clause stricken
Jan 15, 2013 referred to health

S2307 - Bill Details

See Assembly Version of this Bill:
A2674
Current Committee:
Law Section:
Public Health Law
Laws Affected:
Amd §4201, Pub Health L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S4540, A591
2009-2010: S5001A, A881D

S2307 - Bill Texts

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Provides for clarification of the disposition of human remains.

view sponsor memo
BILL NUMBER:S2307

TITLE OF BILL: An act to amend the public health law, in relation to
disposition of human remains

PURPOSE: This bill provides for clarification of the proper
designation of a disposition of human remains.

SUMMARY OF PROVISIONS: Makes several technical amendments to PHL S
4201. Clarifies than the written instrument designating an agent does
not have to be the form appearing in section 4201. Removes the
requirement for a second witness.

JUSTIFICATION: From a statutory standpoint, federal statutes require
Service members to designate a PADD in the event of their death while
on active duty. Public Law 109-163, § 564 requires the designation of
a PADD, and 10 U.S.C. § 1482 (c) specifies who the Service member may
select as a PADD. The Department of Defense Instruction 1300.18
implements these statutory requirements through the use of the DD Form
93, which also provides vital information for emergency notification
and designation of beneficiaries.

From a practical standpoint, without establishing a consistent
requirement for the designation of a PADD, active duty Service members
(48 percent of which are less than 25 years old) would be far less
likely to research the pertinent statute for their home state and
complete the required documentation for designating an agent. As a
result, disposition of a Service member's remains would more likely be
determined according to the prioritized list of family members found
in his or her home state statute.

10 U.S.C. § 1482 (c) limits the choices available to Service members
(in no priority order) to the surviving spouse; blood relatives of the
decedent, adoptive relatives of the decedent; or if none of these
persons can be found, a person standing in loco parentis to the
decedent. Although these choices are limited, it is believed that
allowing for unrestricted designation could potentially increase civil
litigation as a result of young Service members choosing friends and
acquaintances (newly acquired Service buddies) over family members.

Finally, the use of the DD Form 93 ensures that Service members have
reviewed their PADD designations at least annually and before
departing on deployment. State statute has no provisions for ensuring
the currency of a designation document.

LEGISLATIVE HISTORY: 2007: A.8814-A - Passed Assembly 2009: A.881-B -
Passed Assembly 2010: A.881-D - Advanced to Third Reading

FISCAL IMPLICATIONS: None noted.

EFFECTIVE DATE: This act would take effect immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2307

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced  by  Sen.  BALL  --  read twice and ordered printed, and when
  printed to be committed 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:

  Section 1. Section 4201 of the public health law, as amended by  chap-
ter 76 of the laws of 2006, paragraph (a) of subdivision 2 as amended by
chapter 401 of the laws of 2007, paragraph (e) of subdivision 2 as added
by  section  1 of part B of chapter 491 of the laws of 2012, subdivision
4-a as added by chapter 348 of the laws of 2009, is amended to  read  as
follows:
  S 4201. Disposition of remains; responsibility therefor. 1. As used in
this  section,  the  following  terms shall have the following meanings,
unless the context otherwise requires:
  (a) "Cremation" means the incineration of human remains.
  (b) "Disposition" means the care,  disposal,  transportation,  burial,
cremation  or embalming of the body of a deceased person, and associated
measures.
  (c) "Domestic partner" means a person who,  with  respect  to  another
person:
  (i) is formally a party in a domestic partnership or similar relation-
ship  with  the  other  person, entered into pursuant to the laws of the
United States or any state, local or foreign jurisdiction, or registered
as the domestic partner of the person with any  registry  maintained  by
the  employer  of  either  party  or any state, municipality, or foreign
jurisdiction; or
  (ii) is formally recognized as a beneficiary or covered  person  under
the other person's employment benefits or health insurance; or
  (iii)  is dependent or mutually interdependent on the other person for
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.
                                                           LBD01439-01-3

S. 2307                             2

mutual  intent  to  be  domestic  partners including but not limited to:
common ownership or joint leasing of real or personal  property;  common
householding,  shared  income  or  shared  expenses; children in common;
signs  of intent to marry or become domestic partners under subparagraph
(i) or (ii) of this paragraph; or the length of the  personal  relation-
ship of the persons.
  Each  party  to  a  domestic partnership shall be considered to be the
domestic partner of  the  other  party.  "Domestic  partner"  shall  not
include a person who is related to the other person by blood in a manner
that would bar marriage to the other person in New York state. "Domestic
partner"  shall  also  not  include any person who is less than eighteen
years of age or who is the adopted child of the other person or  who  is
related  by  blood in a manner that would bar marriage in New York state
to a person who is the lawful spouse of the other person.
  (d) "Person" means a natural person eighteen years of age or older.
  2.  (a) The following persons in descending priority  shall  have  the
right to control the disposition of the remains of such decedent:
  (i) the person designated in a written instrument executed pursuant to
[the provisions of] this section;
  (ii) the decedent's surviving spouse;
  (ii-a) the decedent's surviving domestic partner;
  (iii)  any  of the decedent's surviving children eighteen years of age
or older;
  (iv) either of the decedent's surviving parents;
  (v) any of the decedent's surviving siblings eighteen years of age  or
older;
  (vi) a guardian appointed pursuant to article seventeen or seventeen-A
of  the  surrogate's  court  procedure  act or article eighty-one of the
mental hygiene law;
  (vii) any person eighteen years of age or older who would be  entitled
to  share in the estate of the decedent as specified in section 4-1.1 of
the estates, powers and trusts law, with the person closest in relation-
ship having the highest priority;
  (viii) a duly appointed fiduciary of the estate of the decedent;
  (ix) a close friend or relative who is reasonably  familiar  with  the
decedent's  wishes, including the decedent's religious or moral beliefs,
when no one higher on this list is  reasonably  available,  willing,  or
competent  to  act,  provided  that  such  person has executed a written
statement pursuant to subdivision seven of this section; or
  (x) a chief fiscal officer of  a  county  or  a  public  administrator
appointed  pursuant  to  article  twelve  or thirteen of the surrogate's
court procedure act, or any other person acting on behalf of  the  dece-
dent,  provided that such person has executed a written statement pursu-
ant to subdivision seven of this section.
  (b) If a person designated to control the disposition of a  decedent's
remains,  pursuant  to  this  subdivision,  is not reasonably available,
unwilling or not competent to serve, and such person is not expected  to
become reasonably available, willing or competent, then those persons of
equal priority and, if there be none, those persons of the next succeed-
ing  priority  shall  have  the  right to control the disposition of the
decedent's remains.
  (c) The person in control of disposition, pursuant  to  this  section,
shall  faithfully carry out the directions of the decedent to the extent
lawful and practicable, including consideration of the financial capaci-
ty of the decedent's estate  and  other  resources  made  available  for
disposition  of  the remains. The person in control of disposition shall

S. 2307                             3

also dispose of the decedent in a manner appropriate to  the  moral  and
individual beliefs and wishes of the decedent provided that such beliefs
and  wishes  do  not  conflict  with the directions of the decedent. The
person  in  control of disposition may seek to recover any costs related
to the disposition from  the  fiduciary  of  the  decedent's  estate  in
accordance with section eighteen hundred eleven of the surrogate's court
procedure act.
  (d)  No  funeral  director,  undertaker, embalmer or no person with an
interest in, or who is an employee of any funeral firm, cemetery  organ-
ization  or  business  operating  a  crematory, columbarium or any other
business, who also controls the disposition  of  remains  in  accordance
with  this  section,  shall  receive  compensation  or otherwise receive
financial benefit for disposing of the remains of a decedent.
  (e) No person who: (1) at the time of the decedent's  death,  was  the
subject  of  an  order of protection protecting the decedent; or (2) has
been arrested or charged with any crime set forth in article one hundred
twenty-five of the penal law as a result of any action allegedly causal-
ly related to the death of the decedent shall have the right to  control
the disposition of the remains of the decedent. However, the application
of  this paragraph in a particular case may be waived or modified in the
interest of justice by order of (i) the court that issued the  order  of
protection  or  in which the criminal action against the person is pend-
ing, or a superior court in which an  action  or  proceeding  under  the
domestic  relations  law  or the family court act between the person and
the decedent was pending at the time of the decedent's death, or (ii) if
proceeding in that court would cause inappropriate delay, a court  in  a
special proceeding.
  3.  The written instrument referred to in paragraph (a) of subdivision
two of this section may be, BUT IS NOT REQUIRED TO BE, in  substantially
the  following  form[, and]. IT must be signed and dated by the decedent
[and the agent] and [properly] witnessed BY  ONE  WITNESS  WHO  MUST  BE
EIGHTEEN  YEARS  OF  AGE  OR OLDER. A SIGNED ACCEPTANCE BY THE APPOINTED
AGENT IS NOT REQUIRED FOR THE WRITTEN INSTRUMENT TO BE VALID:
         APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS

I, _____________________________________________________________________
                         (Your name and address)
being of sound mind, willfully and  voluntarily  make  known  my  desire
that, upon my death, the disposition of my remains shall be controlled
by ___________________________________________________________________ .
(name of agent)
With  respect  to  that subject only, I hereby appoint such person as my
agent with respect to the disposition of my remains.

SPECIAL DIRECTIONS:

Set forth below are any special directions limiting the power granted to
my agent as well as any instructions or wishes desired to be followed in
the disposition of my remains:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

S. 2307                             4

  Indicate below if  you  have  entered  into  a  [pre-funded]  pre-need
[agreement  subject  to  section four hundred fifty-three of the general
business law] ARRANGEMENT for funeral, CEMETERY OR OTHER merchandise  or
service in advance of need:
  []  No,  I  have  not  entered into a [pre-funded] pre-need [agreement
subject to section four hundred fifty-three of the general business law]
ARRANGEMENT.
  [] Yes, I have entered into a [pre-funded] pre-need [agreement subject
to section  four  hundred  fifty-three  of  the  general  business  law]
ARRANGEMENT.

________________________________________________________________________
(Name  of  [funeral  firm]  ESTABLISHMENT  with which you entered into a
[pre-funded]  pre-need  funeral  [agreement]  ARRANGEMENT   to   provide
merchandise and/or services)

AGENT:
Name: __________________________________________________________________
Address: _______________________________________________________________
Telephone Number: ______________________________________________________

SUCCESSORS:

  If  my  agent dies, resigns, or is unable to act, I hereby appoint the
following persons (each to act alone  and  successively,  in  the  order
named)  to serve as my agent to control the disposition of my remains as
authorized by this document:
1. First Successor
Name: __________________________________________________________________
Address: _______________________________________________________________
Telephone Number: ______________________________________________________

2. Second Successor
Name: __________________________________________________________________
Address: _______________________________________________________________
Telephone Number: ______________________________________________________

DURATION:

This appointment becomes effective upon my death.
PRIOR APPOINTMENT REVOKED:
  I hereby revoke any prior appointment of any  person  to  control  the
disposition of my remains.

Signed this____________________day of__________,____________.
________________________________________________________________________
(Signature of person making the appointment)

Statement by witness (must be 18 or older)

I declare that the person who executed this document is personally known
to  me  and  appears  to  be of sound mind and acting of his or her free
will. He or she signed (or asked another to sign for him  or  her)  this
document in my presence.

S. 2307                             5

Witness [1]: __________________ (signature)

Address: _________________

[Witness 2: _________________ (signature)

Address: _________________]

ACCEPTANCE AND ASSUMPTION BY AGENT:
  1.  I  have  no  reason to believe there has been a revocation of this
appointment to control disposition of remains.
  2. I hereby accept this appointment.
  Signed this               day of           ,                .
  _______________________
  (Signature of agent)

  4. [(a)] In the absence of  a  written  instrument  made  pursuant  to
subdivision  three  of this section, the designation of a person for the
disposition of one's remains or directions for the disposition of  one's
remains in a will executed pursuant to the laws of the state of New York
[prior  to  the  effective  date of this section], or otherwise executed
pursuant to the laws of a jurisdiction outside the state  of  New  York,
shall  be: [(i) considered reflective of the intent of the decedent] (A)
DEEMED TO BE A WRITTEN INSTRUMENT EXECUTED PURSUANT TO THIS SECTION with
respect to the disposition of the decedent's  remains;  and  [(ii)]  (B)
superseded  by  a  written  instrument subsequently executed pursuant to
subdivision three of this section, or by any other subsequent act by the
decedent evidencing a specific intent to supersede  the  designation  or
direction  in  such  a  will  with  respect  to  the  disposition of the
decedent's remains. All actions taken reasonably and in good faith based
upon such authorizations and directions  regarding  the  disposition  of
one's remains in such a will shall be deemed valid regardless of whether
such a will is later probated or subsequently declared invalid.
  [(b)  In the absence of a written instrument made pursuant to subdivi-
sion three of this section, the designation of a person for the disposi-
tion of one's remains or directions for the disposition of one's remains
in a will executed pursuant to the laws of the state of New York  on  or
after  the  effective  date  of  this  section,  shall  be  considered a
reflection of the intent of the decedent with respect to the disposition
of the decedent's remains, provided that the person who represents  that
he or she is entitled to control the disposition of remains of the dece-
dent has complied with subdivision five and paragraph (a) of subdivision
seven  of this section and signed a written statement in accordance with
paragraph (b) of subdivision seven of this section.]
  4-a. A written instrument under this section may limit the disposition
of remains agent's authority to consent to organ or tissue  donation  or
designate  another  person  to  do so, under article forty-three of this
chapter. Failure to state wishes or instruction shall not  be  construed
to imply a wish not to donate.
  5.  A  written instrument executed under this section shall be revoked
upon the execution by the decedent of a subsequent  written  instrument,
or  by  any  other  subsequent act by the decedent evidencing a specific
intent  to  revoke  the  prior  written  instrument  [and   directions].
DIRECTIONS  on  disposition  and  agent designations in a [will] WRITTEN
INSTRUMENT made pursuant to [subdivision three of] this section shall be
superseded by a subsequently executed [will or] written instrument  made

S. 2307                             6

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

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