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

                                  4540

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 11, 2011
                               ___________

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 and 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02287-01-1
              

S. 4540                             2

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
also dispose of the decedent in a manner appropriate to  the  moral  and
individual beliefs and wishes of the decedent provided that such beliefs

S. 4540                             3

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.
  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:
  [] 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:

S. 4540                             4

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)

S. 4540                             5

  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
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

S. 4540                             6

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.