N.Y. Public Health Law § 4201: Disposition of remains; responsibility therefor

§ 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, natural organic reduction 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

relationship 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

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

relationship 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.

(c-1) "Natural organic reduction" means the contained, accelerated

conversion of human remains to soil.

(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;

provided that if there are more than two members of a class listed in

subparagraph (iii), (v), or (vii) of this paragraph entitled to control

the disposition of remains of a decedent, the disposition shall be

determined by a majority of the members of the class who are reasonably

available:

(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

relationship 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

decedent, provided that such person has executed a written statement

pursuant 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

succeeding 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

capacity 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

organization or business operating a crematory, natural organic

reduction facility, 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

causally 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 pending, 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 in substantially the following form, and must

be signed and dated by the decedent and the agent and properly

witnessed:

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 for funeral 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.

[] Yes, I have entered into a pre-funded pre-need agreement subject to

section four hundred fifty-three of the general business law.

________________________________________________________________________

(Name of funeral firm with which you entered into a pre-funded pre-need

funeral agreement 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.

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 with

respect to the disposition of the decedent's remains; and (ii)

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

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

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

decedent 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 instructions 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 on

disposition and agent designations in a will 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 otherwise.

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, natural

organic reduction facility, 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 written directions

of a decedent as stated in a will or in a written instrument executed

pursuant to this section. No cemetery organization, business operating a

crematory, natural organic reduction facility, 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 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

written 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 relating to the disposition of the remains of a

decedent shall be resolved by a court of competent jurisdiction 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 representatives 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.