senate Bill S6584

2013-2014 Legislative Session

Provides for clarification of the disposition of human remains

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Archive: Last Bill Status - In Committee


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

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Feb 10, 2014 referred to health

S6584 - 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:
2013-2014: S2307
2011-2012: S4540, A591
2009-2010: S5001A, A881D

S6584 - Bill Texts

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Provides for clarification of the disposition of human remains.

view sponsor memo
BILL NUMBER:S6584

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

PURPOSE OR GENERAL IDEA OF BILL: This bill provides for clarification
of the proper designation of a disposition of human remains agent.

SUMMARY OF SPECIFIC PROVISIONS: Makes several technical amendments to
PHL § 4201. Clarifies that 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: This bill would simplify the process of designating an
agent for disposition of remains.

It is important to clarify that the suggested form in the statute is
not required to be used. For example, the "DD93" form used in the U.S.
military would satisfy the New York law, especially as amended by the
bill.

PRIOR LEGISLATIVE HISTORY: 2007: A.8814-A - passed Assembly 2009:
A.881-B - passed Assembly 2010: A.881-D - advanced to third reading
2012: A.591 - passed Assembly

FISCAL IMPLICATIONS: None noted.

EFFECTIVE DATE: Immediately.

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

                                  6584

                            I N  S E N A T E

                            February 10, 2014
                               ___________

Introduced  by  Sen.  RIVERA -- 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
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;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01439-01-3

S. 6584                             2

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
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

S. 6584                             3

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:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

  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:

S. 6584                             4

  []  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.

Witness [1]: __________________ (signature)

Address: _________________

S. 6584                             5

[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
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

S. 6584                             6

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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