Legislation

Search OpenLegislation Statutes
This entry was published on 2018-05-18
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 4201
Disposition of remains; responsibility therefor
Public Health (PBH) CHAPTER 45, ARTICLE 42, TITLE 1
§ 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
relationship 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;
signs of intent to marry or become domestic partners under subparagraph
(i) or (ii) of this paragraph; or the length of the personal
relationship 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
relationship 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
decedent, provided that such person has executed a written statement
pursuant 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
succeeding 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
capacity 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
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
organization 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
causally 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 pending, 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 in substantially the following form, and must
be signed and dated by the decedent and the agent and properly
witnessed:

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 for funeral 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.

[] Yes, I have entered into a pre-funded pre-need agreement subject to
section four hundred fifty-three of the general business law.
________________________________________________________________________
(Name of funeral firm with which you entered into a pre-funded pre-need
funeral agreement 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: _________________
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 with
respect to the disposition of the decedent's remains; and (ii)
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
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
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
decedent 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 instructions 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 on
disposition and agent designations in a will 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 or legal
separation of the decedent and spouse, or termination of the domestic
partnership, unless the decedent specified in writing otherwise.

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
columbarium, 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 written instrument executed pursuant to this section. No cemetery
organization, 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 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
written 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 relating to the disposition of the remains of a
decedent shall be resolved by a court of competent jurisdiction 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 representatives 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.