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

                                   701

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02407-01-5
              

S. 701                              2

  (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 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-

S. 701                              3

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
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. 701                              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. 701                              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. 701                              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.