Text of NY S 372 (2004)

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Bill No.: Summary Actions Floor Votes Memo Text S00372 Summary: BILL NOS00372 SAME ASNo same as SPONSORANDREWS COSPNSRHASSELL-THOMPSON, KRUGER, OPPENHEIMER MLTSPNSR Add S4201, Pub Health L Relates to the rights of domestic partners, surviving spouses, either of the decedent's surviving parents, any of the decedent's surviving siblings and close friends of the decedent to control the disposition of such decedent's remains in the absence of a written instrument; creates a priority list of those persons which may have the right to control the disposition of the decedent's remains; gives domestic partners the same priority status as surviving spouses; defines domestic partner.Go to top S00372 Text: STATE OF NEW YORK ________________________________________________________________________ 372 2003-2004 Regular Sessions IN SENATE (Prefiled) January 8, 2003 ___________ Introduced by Sens. ANDREWS, HASSELL-THOMPSON, KRUGER, OPPENHEIMER -- 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 the rights of domestic partners, spouses, parents, siblings and close friends to control the disposition of a decedent's remains The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The public health law is amended by adding a new section 2 4201 to read as follows: 3 § 4201. Disposition of remains; responsibility therefor. 1. As used in 4 this section, the following terms shall have the following meanings, 5 unless the context otherwise requires: 6 (a) "Close friend" means any person, eighteen years of age or older, 7 who presents an affidavit stating that he or she is a close friend of a 8 decedent, that such person maintained regular contact with the decedent 9 prior to death so as to be familiar with the decedent's activities and 10 moral beliefs, and stating the facts and circumstances demonstrating 11 such familiarity. 12 (b) "Cremation" means the incineration of human remains. 13 (c) "Disposition" means the cremation, burial or interment, and trans- 14 portation of human remains. 15 (d) "Domestic partner" means a person who resided with such an employ- 16 ee and who can prove emotional and financial commitment, and interde- 17 pendence between such person and such former employee. Although no 18 single factor shall be solely determinative, evidence which is to be 19 considered by the president or his or her designee in determining wheth- 20 er such emotional and financial commitment and interdependence existed, 21 may include, without limitation, such factors as are listed hereinbelow. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01718-02-3 S. 372 2 1 In no event would evidence of a sexual relationship between such persons 2 be required or considered. The factors are: 3 (i) longevity of the relationship; 4 (ii) sharing of or relying upon each other for payment of household or 5 family expenses, and/or other common necessities of life; 6 (iii) intermingling of finances as evidenced by, among other things, 7 joint ownership of bank accounts, personal and real property, credit 8 cards, loan obligations, sharing a household budget for purposes of 9 receiving government benefits, et cetera; 10 (iv) engaging in family-type activities by jointly attending family 11 functions, holidays and celebrations, social and recreational activ- 12 ities, et cetera; 13 (v) formalizing of legal obligations, intentions, and responsibilities 14 to each other by such means as executing wills naming each other as 15 executor and/or beneficiary, conferring upon each other a power of 16 attorney and/or authority to make health care decisions each for the 17 other, entering into a personal relationship contract, making a domestic 18 partnership declaration, or serving as a representative payee for 19 purposes of public benefits, et cetera; 20 (vi) holding themselves out as family members to other family members, 21 friends, members of the community or religious institutions, or society 22 in general, through their words or actions; 23 (vii) regularly performing family functions, such as caring for each 24 other or each other's extended family members, and/or relying upon each 25 other for daily family services; 26 (viii) engaging in any other pattern of behavior, agreement, or other 27 action which evidences the intention of maintaining a long-term, 28 emotionally-committed relationship. 29 (e) "Reasonably available" means person may be contacted with diligent 30 effort. 31 2. Unless a decedent has provided written directions for the disposi- 32 tion of his or her remains pursuant to a written instrument executed 33 pursuant to this section pursuant to a will, the following persons in 34 descending priority shall have the right to control the disposition, 35 including burial, interment or cremation, of the remains of such dece- 36 dent and any and all reasonable costs associated therewith and the 37 disposition of any part of the decedent's body pursuant to article 38 forty-three of this chapter: 39 (a) the person designated in a written instrument executed pursuant to 40 the provisions of this section; 41 (b) the decedent's domestic partner or surviving spouse; 42 (c) any of the decedent's surviving children eighteen years of age or 43 older; 44 (d) either of the decedent's surviving parents; 45 (e) any of the decedent's surviving siblings eighteen years of age or 46 older; or 47 (f) a close friend of the decedent. 48 If a person designated to control the disposition of a decedent's 49 remains, pursuant to this subdivision, is not reasonably available, 50 unwilling or not competent to serve, and such person is not expected to 51 become reasonably available, willing or competent, then those persons of 52 equal priority and, if there be none, those persons of the next succeed- 53 ing priority shall have the right to dispose of the decedent's remains 54 in a manner appropriate to the moral and individual beliefs of the dece- 55 dent to the extent reasonably possible and shall be liable for the 56 reasonable cost of interment. S. 372 3 1 3. The written instrument referred to in paragraph (a) of subdivision 2 two of this section shall be in substantially the following form: 3 APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS 4 I, _____________________________________________________________________ 5 (Your name and address) 6 being of sound mind, willfully and voluntarily make known my desire 7 that, upon my death, the disposition of my remains shall be controlled 8 by 9 (name of agent) 10 in accordance with Section 4201 of the Public Health Law and, with 11 respect to that subject only, I hereby appoint such person as my agent 12 with respect to the disposition of my remains, including cremation. 13 SPECIAL DIRECTIONS: 14 Set forth below are any special directions limiting the power granted 15 to my agent as well as any instructions or wishes desired to be followed 16 in the disposition of my remains, to the extent that my estate and agent 17 are financially and reasonably able to do so: 18 ________________________________________________________________________ 19 ________________________________________________________________________ 20 ________________________________________________________________________ 21 ________________________________________________________________________ 22 ________________________________________________________________________ 23 AGENT: 24 Name: __________________________________________________________________ 25 Address: _______________________________________________________________ 26 Telephone Number: ______________________________________________________ 27 SUCCESSORS: 28 If my agent dies, resigns, or is unable to act, I hereby appoint the 29 following persons (each to act alone and successively, in the order 30 named) to serve as my agent to control the disposition of my remains as 31 authorized by this document: 32 1. First Successor 33 Name: __________________________________________________________________ 34 Address: _______________________________________________________________ 35 Telephone Number: ______________________________________________________ 36 2. Second Successor 37 Name: __________________________________________________________________ 38 Address: _______________________________________________________________ 39 Telephone Number: ______________________________________________________ 40 DURATION: 41 This appointment becomes effective upon my death. 42 PRIOR APPOINTMENT REVOKED: 43 I hereby revoke any prior appointment of any person to control the 44 disposition of my remains. 45 RELIANCE: 46 I hereby agree that any cemetery organization, business operating a 47 crematory or columbarium, funeral director, embalmer, or funeral estab- S. 372 4 1 lishment which receives a copy of this document may act under it. Any 2 modification or revocation of this document shall not be effective as to 3 any such party until that party receives actual notice of the modifica- 4 tions or revocation. No such party shall be liable because of reliance 5 on a copy of this document. 6 ASSUMPTION: 7 THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS APPOINTMENT, 8 ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND BY THE PROVISIONS OF 9 THE PUBLIC HEALTH LAW. 10 Signed this________________day of________________,_____. 11 _________________________________ 12 (your signature) 13 ________________________________________________________________________ 14 (your address) 15 I declare that the person who executed this document is personally 16 known to me and appears to be of sound mind and acting of his or her 17 free will. He or she signed (or asked another to sign for him or her) 18 this document in my presence. 19 Witness 1: _________________ 20 (signature) 21 Address: _________________ 22 Witness 2: _________________ 23 (signature) 24 Address: _________________ 25 4. A person may provide for the disposition of his or her remains in a 26 will or a written instrument executed pursuant to this section. A writ- 27 ten instrument shall be deemed valid under subdivision two of this 28 section if the wording complies with the provisions of subdivision three 29 of this section, is properly completed, signed by the decedent, the 30 agent and each successor, and the signature of the decedent is acknowl- 31 edged. Such written instrument may be modified or revoked by notifying 32 the agent, designated therein, orally or by any other act evincing a 33 specific intent to modify or revoke such instrument. Directions included 34 in a will may only be modified or revoked pursuant to the estates, 35 powers and trusts law. Every person controlling the disposition of the 36 remains of a decedent pursuant to this section shall faithfully carry 37 out the directions of the decedent to the extent that the decedent's 38 estate and agent are financially and reasonably able to do so. 39 5. Notwithstanding any other provision of the law to the contrary, 40 directions in a will for the disposition of the remains of the testator 41 shall be carried out immediately without the necessity of probate. All 42 actions taken in good faith based upon a will shall be deemed valid 43 regardless of whether the will is probated or subsequently declared 44 invalid. 45 6. Any person who represents that he or she knows the identity of a 46 decedent and for the purpose of arranging the disposition of the remains S. 372 5 1 of such decedent, signs an order or statement, other than a death 2 certificate assuring such identity, shall be liable for all damages 3 resulting directly or indirectly from such assurance. Notice of such 4 assumption of liability shall be clearly stated on any such order or 5 statement. 6 7. No cemetery organization, business operating a crematory or colum- 7 barium, funeral director, embalmer or funeral establishment shall be 8 held liable for the carrying out of the written directions of a decedent 9 or the directions of a person who represents that he or she is entitled 10 to control of the disposition of a decedent's remains. 11 8. Every dispute relating to the disposition of the remains of a dece- 12 dent among persons of equal priority pursuant to subdivision two of this 13 section shall be resolved by a court of competent jurisdiction. No 14 person providing services relating to the disposition of the remains of 15 a decedent shall be held liable for refusal to provide such services, 16 when control of the disposition of such remains is contested, until such 17 person receives a court order or other form of notification signed by 18 all parties to the dispute establishing such control. 19 § 2. This act shall take effect on the one hundred eightieth day after 20 it shall have become a law. Go to top Sitemap Request Information Directions and Maps