§ 4201 — Disposition of remains; responsibility therefor

New York § 4201

• Jurisdiction: New York
• Law PBH: Public Health
• Title 1: Disposition
• Art. 42: Cadavers

Text

§ 4201. Disposition of remains; responsibility therefor. 1. As used in\nthis section, the following terms shall have the following meanings,\nunless the context otherwise requires:\n (a) "Cremation" means the incineration of human remains.\n (b) "Disposition" means the care, disposal, transportation, burial,\ncremation, natural organic reduction or embalming of the body of a\ndeceased person, and associated measures.\n (c) "Domestic partner" means a person who, with respect to another\nperson:\n (i) is formally a party in a domestic partnership or similar\nrelationship with the other person, entered into pursuant to the laws of\nthe United States or any state, local or foreign jurisdiction, or\nregistered as the domestic partner of the person with any registry\nmaintained by the employer of either party or any state, municipality,\nor foreign jurisdiction; or\n (ii) is formally recognized as a beneficiary or covered person under\nthe other person's employment benefits or health insurance; or\n (iii) is dependent or mutually interdependent on the other person for\nsupport, as evidenced by the totality of the circumstances indicating a\nmutual intent to be domestic partners including but not limited to:\ncommon ownership or joint leasing of real or personal property; common\nhouseholding, shared income or shared expenses; children in common;\nsigns of intent to marry or become domestic partners under subparagraph\n(i) or (ii) of this paragraph; or the length of the personal\nrelationship of the persons.\n Each party to a domestic partnership shall be considered to be the\ndomestic partner of the other party. "Domestic partner" shall not\ninclude a person who is related to the other person by blood in a manner\nthat would bar marriage to the other person in New York state. "Domestic\npartner" shall also not include any person who is less than eighteen\nyears of age or who is the adopted child of the other person or who is\nrelated by blood in a manner that would bar marriage in New York state\nto a person who is the lawful spouse of the other person.\n (c-1) "Natural organic reduction" means the contained, accelerated\nconversion of human remains to soil.\n (d) "Person" means a natural person eighteen years of age or older.\n 2. (a) The following persons in descending priority shall have the\nright to control the disposition of the remains of such decedent;\nprovided that if there are more than two members of a class listed in\nsubparagraph (iii), (v), or (vii) of this paragraph entitled to control\nthe disposition of remains of a decedent, the disposition shall be\ndetermined by a majority of the members of the class who are reasonably\navailable:\n (i) the person designated in a written instrument executed pursuant to\nthe provisions of this section;\n (ii) the decedent's surviving spouse;\n (ii-a) the decedent's surviving domestic partner;\n (iii) any of the decedent's surviving children eighteen years of age\nor older;\n (iv) either of the decedent's surviving parents;\n (v) any of the decedent's surviving siblings eighteen years of age or\nolder;\n (vi) a guardian appointed pursuant to article seventeen or seventeen-A\nof the surrogate's court procedure act or article eighty-one of the\nmental hygiene law;\n (vii) any person eighteen years of age or older who would be entitled\nto share in the estate of the decedent as specified in section 4-1.1 of\nthe estates, powers and trusts law, with the person closest in\nrelationship having the highest priority;\n (viii) a duly appointed fiduciary of the estate of the decedent;\n (ix) a close friend or relative who is reasonably familiar with the\ndecedent's wishes, including the decedent's religious or moral beliefs,\nwhen no one higher on this list is reasonably available, willing, or\ncompetent to act, provided that such person has executed a written\nstatement pursuant to subdivision seven of this section; or\n (x) a chief fiscal officer of a county or a public administrator\nappointed pursuant to article twelve or thirteen of the surrogate's\ncourt procedure act, or any other person acting on behalf of the\ndecedent, provided that such person has executed a written statement\npursuant to subdivision seven of this section.\n (b) If a person designated to control the disposition of a decedent's\nremains, pursuant to this subdivision, is not reasonably available,\nunwilling or not competent to serve, and such person is not expected to\nbecome reasonably available, willing or competent, then those persons of\nequal priority and, if there be none, those persons of the next\nsucceeding priority shall have the right to control the disposition of\nthe decedent's remains.\n (c) The person in control of disposition, pursuant to this section,\nshall faithfully carry out the directions of the decedent to the extent\nlawful and practicable, including consideration of the financial\ncapacity of the decedent's estate and other resources made available for\ndisposition of the remains. The person in control of disposition shall\nalso dispose of the decedent in a manner appropriate to the moral and\nindividual beliefs and wishes of the decedent provided that such beliefs\nand wishes do not conflict with the directions of the decedent. The\nperson in control of disposition may seek to recover any costs related\nto the disposition from the fiduciary of the decedent's estate in\naccordance with section eighteen hundred eleven of the surrogate's court\nprocedure act.\n (d) No funeral director, undertaker, embalmer or no person with an\ninterest in, or who is an employee of any funeral firm, cemetery\norganization or business operating a crematory, natural organic\nreduction facility, columbarium or any other business, who also controls\nthe disposition of remains in accordance with this section, shall\nreceive compensation or otherwise receive financial benefit for\ndisposing of the remains of a decedent.\n (e) No person who: (1) at the time of the decedent's death, was the\nsubject of an order of protection protecting the decedent; or (2) has\nbeen arrested or charged with any crime set forth in article one hundred\ntwenty-five of the penal law as a result of any action allegedly\ncausally related to the death of the decedent shall have the right to\ncontrol the disposition of the remains of the decedent. However, the\napplication of this paragraph in a particular case may be waived or\nmodified in the interest of justice by order of (i) the court that\nissued the order of protection or in which the criminal action against\nthe person is pending, or a superior court in which an action or\nproceeding under the domestic relations law or the family court act\nbetween the person and the decedent was pending at the time of the\ndecedent's death, or (ii) if proceeding in that court would cause\ninappropriate delay, a court in a special proceeding.\n 3. The written instrument referred to in paragraph (a) of subdivision\ntwo of this section may be in substantially the following form, and must\nbe signed and dated by the decedent and the agent and properly\nwitnessed:\n APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS\nI, _____________________________________________________________________\n (Your name and address)\nbeing of sound mind, willfully and voluntarily make known my desire\nthat, upon my death, the disposition of my remains shall be controlled\nby ___________________________________________________________________ .\n(name of agent)\nWith respect to that subject only, I hereby appoint such person as my\nagent with respect to the disposition of my remains.\nSPECIAL DIRECTIONS:\n Set forth below are any special directions limiting the power granted\nto my agent as well as any instructions or wishes desired to be followed\nin the disposition of my remains:\n________________________________________________________________________\n________________________________________________________________________\n________________________________________________________________________\n________________________________________________________________________\n________________________________________________________________________\n Indicate below if you have entered into a pre-funded pre-need\nagreement subject to section four hundred fifty-three of the general\nbusiness law for funeral merchandise or service in advance of need:\n [] No, I have not entered into a pre-funded pre-need agreement subject\nto section four hundred fifty-three of the general business law.\n [] Yes, I have entered into a pre-funded pre-need agreement subject to\nsection four hundred fifty-three of the general business law.\n________________________________________________________________________\n(Name of funeral firm with which you entered into a pre-funded pre-need\nfuneral agreement to provide merchandise and/or services)\nAGENT:\nName: __________________________________________________________________\nAddress: _______________________________________________________________\nTelephone Number: ______________________________________________________\nSUCCESSORS:\n If my agent dies, resigns, or is unable to act, I hereby appoint the\nfollowing persons (each to act alone and successively, in the order\nnamed) to serve as my agent to control the disposition of my remains as\nauthorized by this document:\n1. First Successor\nName: __________________________________________________________________\nAddress: _______________________________________________________________\nTelephone Number: ______________________________________________________\n2. Second Successor\nName: __________________________________________________________________\nAddress: _______________________________________________________________\nTelephone Number: ______________________________________________________\nDURATION:\n This appointment becomes effective upon my death.\nPRIOR APPOINTMENT REVOKED:\n I hereby revoke any prior appointment of any person to control the\ndisposition of my remains.\nSigned this __________________ day of _________,____________.\n________________________________________________________________________\n(Signature of person making the appointment)\nStatement by witness (must be 18 or older)\n I declare that the person who executed this document is personally\nknown to me and appears to be of sound mind and acting of his or her\nfree will. He or she signed (or asked another to sign for him or her)\nthis document in my presence.\nWitness 1: __________________\n (signature)\nAddress: _________________\nWitness 2: _________________\n (signature)\nAddress: _________________\nACCEPTANCE AND ASSUMPTION BY AGENT:\n 1. I have no reason to believe there has been a revocation of this\nappointment to control disposition of remains.\n 2. I hereby accept this appointment.\n Signed this day of , .\n _______________________\n (Signature of agent)\n 4. (a) In the absence of a written instrument made pursuant to\nsubdivision three of this section, the designation of a person for the\ndisposition of one's remains or directions for the disposition of one's\nremains in a will executed pursuant to the laws of the state of New York\nprior to the effective date of this section, or otherwise executed\npursuant to the laws of a jurisdiction outside the state of New York,\nshall be: (i) considered reflective of the intent of the decedent with\nrespect to the disposition of the decedent's remains; and (ii)\nsuperseded by a written instrument subsequently executed pursuant to\nsubdivision three of this section, or by any other subsequent act by the\ndecedent evidencing a specific intent to supersede the designation or\ndirection in such a will with respect to the disposition of the\ndecedent's remains. All actions taken reasonably and in good faith based\nupon such authorizations and directions regarding the disposition of\none's remains in such a will shall be deemed valid regardless of whether\nsuch a will is later probated or subsequently declared invalid.\n (b) In the absence of a written instrument made pursuant to\nsubdivision three of this section, the designation of a person for the\ndisposition of one's remains or directions for the disposition of one's\nremains in a will executed pursuant to the laws of the state of New York\non or after the effective date of this section, shall be considered a\nreflection of the intent of the decedent with respect to the disposition\nof the decedent's remains, provided that the person who represents that\nhe or she is entitled to control the disposition of remains of the\ndecedent has complied with subdivision five and paragraph (a) of\nsubdivision seven of this section and signed a written statement in\naccordance with paragraph (b) of subdivision seven of this section.\n 4-a. A written instrument under this section may limit the disposition\nof remains agent's authority to consent to organ or tissue donation or\ndesignate another person to do so, under article forty-three of this\nchapter. Failure to state wishes or instructions shall not be construed\nto imply a wish not to donate.\n 5. A written instrument executed under this section shall be revoked\nupon the execution by the decedent of a subsequent written instrument,\nor by any other subsequent act by the decedent evidencing a specific\nintent to revoke the prior written instrument and directions on\ndisposition and agent designations in a will made pursuant to\nsubdivision three of this section shall be superseded by a subsequently\nexecuted will or written instrument made pursuant to this section, or by\nany other subsequent act of the decedent evidencing a specific intent to\nsupersede the direction or designation. The designation of the\ndecedent's spouse or domestic partner as an agent in control of\ndisposition of remains shall be revoked upon the divorce or legal\nseparation of the decedent and spouse, or termination of the domestic\npartnership, unless the decedent specified in writing otherwise.\n 6. A person acting reasonably and in good faith, shall not be subject\nto any civil liability for:\n (a) representing himself or herself to be the person in control of a\ndecedent's disposition;\n (b) disposing of a decedent's remains if done with the reasonable\nbelief that such disposal is consistent with this section; or\n (c) identifying a decedent.\n 7. No cemetery organization, business operating a crematory, natural\norganic reduction facility, or columbarium, funeral director,\nundertaker, embalmer, or funeral firm shall be held liable for actions\ntaken reasonably and in good faith to carry out the written directions\nof a decedent as stated in a will or in a written instrument executed\npursuant to this section. No cemetery organization, business operating a\ncrematory, natural organic reduction facility, or columbarium, funeral\ndirector, undertaker, embalmer or funeral firm shall be held liable for\nactions taken reasonably and in good faith to carry out the directions\nof a person who represents that he or she is entitled to control of the\ndisposition of remains, provided that such action is taken only after\nrequesting and receiving written statement that such person:\n (a) is the designated agent of the decedent designated in a will or\nwritten instrument executed pursuant to this section; or\n (b) that he or she has no knowledge that the decedent executed a\nwritten instrument pursuant to this section or a will containing\ndirections for the disposition of his or her remains and that such\nperson is the person having priority under subdivision two of this\nsection.\n 8. Every dispute relating to the disposition of the remains of a\ndecedent shall be resolved by a court of competent jurisdiction pursuant\nto a special proceeding under article four of the civil practice law and\nrules. No person providing services relating to the disposition of the\nremains of a decedent shall be held liable for refusal to provide such\nservices, when control of the disposition of such remains is contested,\nuntil such person receives a court order or other form of notification\nsigned by all parties or their legal representatives to the dispute\nestablishing such control.\n 9. This section does not supersede, alter or abridge any provision of\nsection four hundred fifty-three of the general business law. In the\nevent of a conflict or ambiguity, the provisions of section four hundred\nfifty-three of the general business law shall govern.\n 10. This section does not supersede, alter or abridge any provision of\narticle forty-three of this chapter including, but not limited to, the\npersons authorized to execute an anatomical gift pursuant to section\nforty-three hundred one of this chapter.\n 11. This section does not diminish the enforceability of a contract or\nagreement in which a person controlling the disposition of the remains\nof a decedent agrees to pay for goods or services in connection with the\ndisposition of such remains.\n