S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  171--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
   printed to be committed  to  the  Committee  on  Health  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee

 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:
   § 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.
                                                            LBD00946-03-7

 S. 171--A                           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. 171--A                           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. 171--A                           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. 171--A                           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. 171--A                           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.
   § 2. This act shall take effect immediately.