Nondurable Power of Attorney Texas Child

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					          Ted Williams, FDR, Advance Directives,
               and The Right of Sepulchre


Introduction

      John M. Keane, Surrogate, in the Estate of Stafford L. Barner,
Deceased, Surrogate’s Court, Broome County, June 10, 1966 (50 Misc.2d
518) wrote “Over the centuries, and particularly in the current one, man has
pushed the frontier of knowledge to limits that have oftentimes exceeded the
dreams of many. Yet, even with increased knowledge, there comes to each
man a time when that spark called life flickers, goes out forever and leaves
only a cadaver. Upon those surviving is thrust the duty of consigning the
mortal remains to the earth, to the sea or to flames.”
      This work is about the right of the decedent and his survivors to direct
how his body is to be treated after his death.
Ted Williams
       Theodore Samuel Williams, otherwise known as “Ted” Williams or
“The Splendid Splinter” or “Teddy Ballgame”, was called the most gifted
baseball player of the twentieth century. Thanks to his extraordinary vision
and superb coordination he had a magnificent record as a hitter. He hit more
than 500 home runs, and had the highest lifetime batting average of any of
the 17 players with that number of home runs. His batting average was .344,
with 521 home runs - Babe Ruth had a batting average of .342 with 714
home runs.
       Ted’s married life was not tranquil. He had three children, Barbara
Joyce Ferrell, a/k/a Bobby-Jo Ferrell, Claudia, and John-Henry Williams, by
three different marriages. Ted died July 6, 2002, at the age of 83, in Cit rus
Memorial Hospital near his home in Hernando, Florida. Immediately after
his death, his son, John Henry Williams, hired a private plane and had his
body shipped to Alcor Life Extension Foundation, in Scottsdale, Arizona,
and frozen. Barbara Joyce Ferrell was concerned that John-Henry was going
to sell his father’s DNA so that he could be cloned. She pointed to his 1996
will in which he stated, in part:




                                      1
“Article I - CREMATION/FUNERAL

      1.1 Cremation. I direct that my remains be cremated and my ashes
sprinkled at sea off the coast of Florida where the water is very deep.

      1.2 It is my wish and direction that no funeral or memorial service of
any kind be held for me and that neither my family nor my friends sponsor
any such service for me.”

      John-Henry replied with what was alleged to be a handwritten note
signed by Ted, John-Henry, and Claudia, on November 2, 2000 stating
“JHW, Claudia and Dad all agree to be put into biostatus after we die. This
is what we want, to be able to be together in the future, even if it is only a
chance.”

      The argument has later been made that the note was only a practice
signature Ted had signed, and that the purported note was simply printed by
hand around the signature later.

     Litigation followed, and the controversy was eventually settled six
months later. Some time after the matter was settled, Claudia married John-
Henry’s lawyer. I am not sure what this proves.

      This distasteful family battle shed light on a question that has vexed
many people. Who has a right to determine how and where a decedent is to
be buried, and how can one direct how his body is to be handled after his
death?

      Franklin Delano Roosevelt
      Franklin Delano Roosevelt did not want to be buried in state. He left
very detailed instructions, stating that he wished to be buried in a plain pine
casket, placed in a unlined grave. He did not want any pomp and
circumstance associated with his funeral.

       Three or four days after FDR was buried in an expensive casket in a
lined grave, after a state funeral with a great deal of ceremony, his
instructions were found in his safe.




                                      2
Decisions To Be Made

When someone dies, there are many decisions to be made. Some of these
(not necessarily in the proper order) are:

a) Should a funeral director be engaged? (This is not legally required in
most cases.)

b) Should the decedent be embalmed? (Not legally required in most cases.)

c) Is the decedent to be cremated, buried without being cremated, frozen, or
freeze-dried (believe it or not, the latter two are options)?

d) If the decedent is to be cremated, where shall the cremains be disposed
of?

e) If the decedent is to be buried without being cremated, what kind of a
funeral service is desired?

f) Should there be a viewing of the decedent?

g) How much should be expended for the casket?

h) If the decedent is to be buried without being cremated, where is he or she
to be buried?

i) What kind of a grave marker, if required, is to be purchased?

       There are some 3,000,000 deaths annually in the United States. Thus,
there are many instances where decisions must be made. We will look first
at the variety of options, then we will look at the common law, followed by a
review of recent developments. Finally we will look at who has the right to
make those decisions in the various states, and, finally, at suggestions for
making choices effectively.

Options

      a) Employment of a Funeral Director.




                                      3
        One is not legally required to employ a funeral director in most states.
A family member may be able to take custody of the body, obtain a death
certificate, and handle other details without hiring someone to assist him.

      b) Embalming.

       Generally embalming is not legally required, unless there is to be an
open casket at a funeral service. Sometimes this choice is not explained to
the person handling the arrangements for the decedent.

      c) The Funeral.

       The decedent may receive a regular funeral, following which he will
be buried. The funeral services may be held at the residence of the decedent,
at a place of worship, at the gravesite, or any other place determined by the
person in charge. There may be an open casket or not. There is no
requirement that a funeral be held, and it may be dispensed with.

      Ambrose Bierce, author of “A Devil’s Dictionary” defined “funeral”
as “A pageant whereby we attest our respect for the dead by enriching he
undertaker, and strengthen our grief by an expenditure which deepens our
groans and doubles our tears.”

      c)(i) Military Funeral Honors

        Military Funeral Honors are provided for an eligible veteran if
requested by the family. The Honors are provided by an honor guard detail
of at least two members of the Armed Forces.

      The honor guard detail will perform a ceremony that includes folding
and presenting the American flag to the next of kin and playing Taps. The
Taps will be played by a bugler if available, otherwise by electronic
recording.

       d) Cremation.“Cremation” comes from the Latin “cremo” – to burn.
More than one-fourth of dead bodies in the United States are cremated. This
proportion increases annually, driven by the cost savings and the shortage
and expense of burial space. In Japan, more than three-quarters of the dead
are cremated.


                                       4
      e) Disposal of the Body – Conventional Burial

       A conventional burial is carried out in accordance with the regulations
of the particular cemetery. Most require grave liners, at additional expense,
and many have limitations as to the grave markers which may be used.

      A movement has been started in Great Britain to use “green”
cemeteries in which impervious caskets and grave liners are not used. The
Association of Nature Burial Grounds promotes disposal arrangements in
which the body is permitted to return to the earth.

      There are more than 100 nature reserve burial grounds in the U.K.,
and more are being planned. The Natural Death Centre, based in London,
has been active in fostering the development of green cemeteries.

      In a green cemetery, bodies are buried in a shroud or biodegradable
coffin of wicker or cardboard or other simple material. Instead of a
headstone, a tree is planted over the grave.

      In many states it is possible to be buried in a private cemetery, on
one’s own property.

       Some persons have chosen strange ways in which to be buried. he
Associated Press, on May 6, 1998, reported that a woman who lived in
Tiverton, Rhode Island, owned a 1962 Corvair automobile in which she was
buried. The engine, steering wheel, and seats were removed to make room
for her casket.

      Another newspaper story discussed the man who was buried in his
1984 Corvette. No reports have been found since then – perhaps
environmental considerations dictate that bodies not be buried in
automobiles.

      (f) Disposal of the Body – Cryonics – Final Resting Place of Ted
Williams

       Alcor Life Extension Foundation, a 501(c)(3) organization, is located
at 
 7895 East Acoma Drive, Suite 110, 
 Scottsdale, Arizona 85260. Alcor
promotes a procedure in which a substantial part of the water in cells is

                                      5
replaced with chemicals which do not freeze. Body parts are cooled to a
temperature of -196 degrees C (-320 degrees Fahrenheit.) The claim is
made that body parts in which the water has been replaced with chemicals
(vitrified) do not freeze and are not damaged.

       When the heart stops, the body is placed on life support equipment so
that the brain will remain alive. The claim is made that the human brain can
be satisfactorily vitrified. However, the procedure cannot now be reversed
because of effects of the chemicals on the brain.

       It is apparently not practical to try to perform the procedure on the
brain and the body together, thus the choice is made to preserve the brain. It
has been suggested that at some time it may be possible to regrow a body,
but that recreating a brain would be impossible. It is understood that the
body of Ted Williams has been separated from the head, and that they are in
separate containers.

       As of August 2005, Alcor claims to have had 773 “members,” and 69
“patients” in cryopreservation. Those who pursue cryonics believe that
molecular nanotechnology and other scientific practices will be able to
reverse the cryonics process in the future – perhaps a century from now, so
that those persons in cryopreservation must be patient indeed.

       Current procedures, which Alcor suggests be funded with life
insurance – are a minimum of $150,000 for preservation of the whole body
and $80,000 for preservation of the head. It has been proposed that cryonics
might be used for space travel – a person could be “turned off” for the long
duration of the flight, and “turned on” later. This will certainly not be
practical for many generations, if ever.

      The Cryonics Society of Canada has experimented with burying dead
bodies in the permafrost. Considering the threat of global warming, this
procedure may have to be abandoned.

g) Disposal of the Body - Burials At Sea

      Bodies, whether or not cremated, may be buried at sea, either from a
vessel or from an airplane. If the body has not been cremated, the remains
must be buried at least three nautical miles from shore and in water at least


                                      6
600 feet deep, according to 40CFR 229.1, which is based on the Marine
Protection, Research and Sanctuary Act of 1972.

       In the case of eligible persons, who are: (1) active duty members of
the uniformed services; (2) retirees and veterans who were honorably
discharged. (3) U.S. civilian marine personnel of the Military Sealift
Command; and (4) dependent family members of active duty personnel,
retirees, and veterans of the uniformed services the United States Navy will
provide burials at sea. These burials are performed from Navy vessels
which are on detail, and therefore family members may not attend.

      h) Disposal of the Remains - Freeze-Drying

       A Swedish company, Promessa Organic AB, is marketing a process
under which the decedent’s body is flash-frozen to -18C, (-.4 F) then dipped
in liquid nitrogen at a temperature of –196C, (-320.80 F). The body, which
is then brittle, is subjected to sound waves that reduce it to powder. The
body could then be cremated or buried in a coffin made of cornstarch,
which, when buried in the ground, would degrade in about a year.

       i) Disposal of the Cremains – At Sea          The      remains      after
cremation (“cremains”) may be disposed of in a grave, in a structure on land,
or at sea from a boat or a plane, be retained by the relatives of the deceased,
or perhaps scattered in a garden or other favorite place. There are a number
of companies - particularly in California - offering to help conduct
disposition of cremains at sea. Some of these companies run would might
properly be called “party boats” – complete with catering service and
champagne. For those seeking an unusual way of disposing of the cremains
of a dear one, there are several possibilities.

      j) Disposal of the Cremains - Reef Balls

       Eternal Reefs, Inc., P. O. Box 2473, Decatur, GA 30031makes a
product called a “reef ball” which is a small beehive-shaped concrete
structure with holes in it. The structure is cast out of concrete into which the
ashes of the decedent have been mixed. The structure is then placed
offshore to create a reef. It is claimed that more than 400,000 reef balls have
been placed in areas around the world.




                                       7
      k) Disposal of the Cremains - Space Shots

       Space Services, Inc., offers a service of placing one gram of cremated
remains into earth orbit for a price of $995 and seven grams into earth orbit
for $5,300. For $12,500 the company will place a one-gram sample of
cremated remains in lunar orbit or on the surface of the moon or into deep
space.

       Included in the price is a video or DVD of the launch of the rocket
carrying the cremains, a gathering at the launch site, a posting of the
biography and photograph of the decedent on the company’s website, and a
commemorative plaque useful as a keepsake urn and a replica of the Flight
Module.

      Another company, Celestis, Inc., offers a similar service.


THE COMMON LAW

The Nature of Property Rights in a Dead Body

      The New Jersey Supreme Court said it well:

“The early English common law sheds little light on the subject. During its
formative period, the ecclesiastical courts had jurisdiction of the dead; and,
in consonance with the doctrines of that jurisdiction, the common law early
rejected the concept of property in the corpse and the ashes, and treated them
as subjects largely of superintendency. But the assumption of exclusive
jurisdiction by the temporal courts brought radical changes of theory; and it
is now the prevailing rule, in England as well as in this country, that the right
to bury the dead and preserve the remains is a quasi right in property, the
infringement of which may be redressed by an action in damages. The dead
body is no longer res nullius.” Spiegel v. Evergreen Cemetery Co., 117
NJL 90, 186 A. 585.

      In the U.K. the executor has the right and the duty to deal with the
body of the deceased. This is not the law in the United States.




                                       8
       While the temporal courts in this country have moved into the area
that was formerly the province of the ecclesiastical courts, there is an area
into which they are forbidden by the United States Constitution to go. The
First Amendment to the Constitution provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a
redress of grievances.”

Rights of the Next of Kin

       The interests of the next of kin in a dead body are, in some states,
entitled to protection under the United States Constitution. In Whaley et
als v. County of Tuscola et als, 58 Fed 1111 (6th Cir. 1995) autopsies were
performed at Saginaw Hospital. The pathologist’s assistant operated an eye
bank, and in the course of his work he removed corneas and eyes without the
approval of the next of kin of the decedents, and sold them through his eye
bank.

        The next of kin brought suit on various grounds, one being the
violation of their rights under Section 1 of the Fourteenth Amendment to the
U. S. Constitution, which prohibits states from depriving a person of life,
liberty, or property without due process of law. The District Court
dismissed the plaintiff’s claims; the Sixth Circuit reversed, deciding that
state law “provides the next of kin with a legitimate claim of entitlement and
thus a property interest in a dead relative’s body including the eyes.
Accordingly, the next of kin may bring a constitutional claim under the Due
Process Clause.” Simply said, the next of kin have the right to dispose of the
body, to possess the body for burial, and to prevent it from being mutilated.

       The degree to which the federal courts will recognize rights of
survivors to be protected in dealings with the dead bodies of those close to
them depends upon the state. Whaley was decided under Michigan law –
the decision might be to the contrary under the law of other states. (While
the case was decided in a Federal District Court (Sixth Circuit) the Court
referred to Michigan law to determine what the local law was.)

       See also Crocker v. Pleasant, 778 So.2d 978 (Fla., 2001), discussing
the rights of the next of kin to bring a federal civil rights action arising from
an alleged deprivation of procedural due process. In Crocker, the police

                                       9
authorities failed to notify the next of kin of the death of their son – the court
was impressed by the rather shocking failure.

      The right to dispose of the body, to possess the body for burial, and to
prevent it from being mutilated is not “property” such as we would include
in a probate inventory, and thus is not within the control of the executor.
Stewart v. Schwartz Brothers-Jeffer Memorial Chapel, Inc. 159 Misc. 2d
884, 606 N.Y.S.2d 965 (Sup 1993).

       In Riley v. St. Louis County of Mo., 153 F.3d 627 (8th Cir. 1998) the
plaintiff’s son committed suicide and a funeral was held. A police officer
photographed him as he lay in his casket after the funeral ceremony, and
later displayed the photograph to others as a warning of what might happen
to them if they engaged in gang activity.

       The plaintiff brought an action alleging violation of her rights under
the Fourteenth Amendment, namely her “right of sepulchre,” which the
Court defined as “the right of the next of kin to perform a ceremonious and
decent burial of the nearest relative--and an action for the breach of that
right." The Court found for the defendant, stating that “Missouri courts have
abandoned the early fiction that the cause of action for interference with the
right of sepulchre rested on the infringement of a quasi property right of the
nearest kin to the body." Lanigan v. Snowden, 938 S.W.2d 330, 332
(Mo.Ct.App.1997) (internal quotation and citation omitted). Instead,
Missouri courts base the cause of action on the mental anguish of the person
claiming the right of sepulchre.”

      The Court concluded that, while the actions of the police constituted
outrageous and insensitive conduct they were not sufficient outrageous as to
shock the conscience of the Court. One wonders what it would take to shock
the conscience of the Missouri Court of Appeals.

THE DEVELOPMENT OF THE LAW

      The common law appears to be that that the decedent has the right to
designate the desired funeral arrangements, and where he or she wishes his
or her body to be disposed of. If the wishes of the decedent are not known,
and the decedent is survived by a spouse, the spouse may make the funeral
and disposition arrangements, unless the decedent and the spouse were
estranged at the time of the death.

                                       10
      If the wishes of the decedent are not known, and the decedent is not
survived by a spouse living with him or her, then the right to make the
funeral and disposition arrangements passes to the following:

      1. The children.
      2. The parents of the deceased.
      3. The next of kin of the deceased.

       If the person who would be next in line to undertake the final
arrangements murdered the decedent, or has been charged with the murder,
he or she loses the place in line unless the charges are dropped or the person
is found not guilty. It would appear that by the time that occurs, the
decedent will have been buried.

       Some states have made statutory provisions setting forth who may
arrange funerals and handle the disposition of remains. Some states have
provided suggested forms for those who wish to provide directions for their
final arrangements.

      It would be helpful to have a Uniform Act to deal with the issues of
who has a right to the body of the decedent and the right of sepulchre. In the
following sections we have provided suggested forms for preplanning
funeral and disposition of remains.

PROCEDURE FOR PRE-PLANNING FUNERALS AND DISPOSAL
OF REMAINS

A. HOW TO ASSURE THAT YOUR CLIENT’S WISHES WILL BE
CARRIED OUT

       It is virtually impossible for anyone to make sure that his wishes with
respect to his funeral and burial arrangements are carried out. There are
provisions in many statutes stating affirmatively that the desires of the
decedent shall be carried out or that various persons shall be protected if
they carry out what they understand to be the wishes of the decedent, but
there appear to be no sanctions if the are not.

       Further, if the next of kin of the decedent wish to countermand his
instructions, who is to enforce the wishes of the decedent? This being said,

                                     11
we offer some suggested forms of documents. If these documents are
executed, the decedent-to-be will have done about all he can do to see that
his wishes are carried out. Copies of these documents, when executed,
should be distributed to client’s attorney, his family, the agent under his
power of attorney and health care proxy.

       Any form should contain a statement as to where the decedent has a
burial plot, if such exists. Sometimes that information is discovered only
after the decedent has been buried somewhere else. Also the form should
disclose the existence of a contract with a funeral home, if there is one.

B.    FORMS. These forms are offered as a starting point for the
draftsman. They should be tailored to the specific situation,

B1. DECLARATION OF DISPOSITION OF LAST REMAINS AND
    APPOINTMENT OF AGENT

        I, (name of declarant), being of sound mind and lawful age, hereby
revoke all prior declarations of my wishes regarding my funeral and the
disposition of my last remains, whether set forth in wills, codicils, trusts,
powers of appointment, health care documents, powers of attorney, or
otherwise, regarding the disposition of my last remains, and I declare and
direct that after my death these procedures be followed:

1. If permitted by law, my body shall be (initial ONE choice):


_______ Buried. I direct that my body be buried at

                                 .


_______ Cremated. I direct that my cremated remains be disposed of as
follows:


 _______    Entombed.     I direct    that   my    body be        entombed   at
                               .





                                      12
 _______ Other. ______________________________________________

I direct that my body be disposed of as follows:
 .


_______ Disposed of as (            name of designee               ) shall
specify in writing. If ________________________ is unwilling or unable to
act, I nominate ________________________ as my alternate designee.


        2. I request that the following ceremonial arrangements be made
(initial desired choice or choices):


   _______ I request that ____________________________ (name of
designee) make all arrangements for any ceremonies, consistent with my
directions set forth in this declaration. If ________________________ is
unwilling or unable to act, I nominate ______________________ as my
alternate designee.


_______ Funeral. I request the following arrangements for my funeral:


_______ Memorial Service. I request the following arrangements for my
memorial service:


      3. Special instructions. In addition to the instructions above, I request
(on the following lines you may make special requests regarding ceremonies
or                   lack                  of                   ceremonies):

_________________________________________
_____________________________________________________________

       4. I have entered into a preneed contract with (____name of funeral
home        ). I direct that the provisions set forth in that contract with respect
to the disposition of my body and ceremonial arrangements _____ shall be
followed ______ may be followed or not as my family member, designee,
executor, or other person taking responsibility for the disposition of my body
and ceremonial arrangements shall determine.

       5. I own (or have the right to have my remains placed in) a grave,
vault, columbarium, or other repository designated as (designation of
gravesite, etc. ) in (name of cemetery, facility, etc.), located in (City,
State). I wish to have my remains deposited there.


                                        13
        I may revoke or amend this declaration in writing at any time. I agree
that a third party who receives a copy of this declaration may act according
to it. Revocation of this declaration is not effective as to a third party until
the third party learns of my revocation.

       My estate shall indemnify any third party or designee for costs
incurred as a result of claims that arise against the third party or expenditures
made by the designee because of good-faith reliance on this declaration.

 I execute this declaration as my free and voluntary act, on ___________,
_____.
     ___________________________
             (Declarant)


STATE OF _____________                       COUNTY OF _______________

      Then personally appeared the above-named Declarant, whose identity
was proven to me by __________________ and acknowledged the
foregoing to be his free act and deed, before me, on _______________.

                                        ______________________________
                                        Notary Public
                                        My Commission Expires ______

Witnesses:

_________________________________ residing at ___________________

_________________________________residing at____________________


B2. STATEMENT IN WILL (Delete any unneeded material)


      ARTICLE ____________.

        I revoke all prior declarations of my wishes regarding my funeral and
the disposition of my last remains, whether set forth in wills, codicils, trusts,
powers of appointment, health care documents, powers of attorney, or
otherwise, regarding the disposition of my last remains, and I declare and
direct that after my death these procedures be followed:

                                       14
1. If permitted by law, my body shall be

_______ Buried. I direct that my body be buried at
                               .


_______ Cremated. I direct that my cremated remains be disposed of as
follows:


_______     Entombed.     I   direct   that   my   body    be   entombed     at
                                  .


_______ Other. ______________________________________________

________ I direct that my body be disposed of as (                 name of
designee           ) shall specify in writing. If ________________________
is unwilling or unable to act, I nominate ________________________ as
my alternate designee.


        2. I request that the following ceremonial arrangements be made
(initial desired choice or choices):


  _______ I request that _______(name of designee)________ make all
arrangements for any ceremonies, consistent with my directions set forth in
this declaration. If ____________________ is unwilling or unable to act, I
nominate ______________________ as my alternate designee.


_______ Funeral. I request the following arrangements for my funeral:



_______ Memorial Service. I request the following arrangements for my
memorial service:


     3. Special instructions. In addition to the instructions above, I request:
_____________________________________________________________

_____________________________________________________________




                                       15
       4. I have entered into a preneed contract with (____name of funeral
home        ). I direct that the provisions set forth in that contract with respect
to the disposition of my body and ceremonial arrangements _____ shall be
followed ______ may be followed or not as my family member, designee,
executor, or other person taking responsibility for the disposition of my body
and ceremonial arrangements shall determine.

       5. I own (or have the right to have my remains placed in) a grave,
vault, columbarium, or other repository designated as (designation of
gravesite, etc. ) in (name of cemetery, facility, etc.), located in (City,
State). I wish to have my remains deposited there.

       My executor shall indemnify any third party or designee for costs
incurred as a result of claims that arise against the third party or expenditures
made by the designee because of good-faith reliance on this declaration.

 I execute this declaration as my free and voluntary act, on ___________,
_____.
     ___________________________
(Declarant)



3. INCLUSION IN HEALTH CARE PROXY


        I revoke all prior declarations of my wishes regarding my funeral and
the disposition of my last remains, whether set forth in wills, codicils, trusts,
powers of appointment, health care documents, powers of attorney, or
otherwise, regarding the disposition of my last remains, and I declare and
direct that after my death these procedures be followed:

1. If permitted by law, my body shall be

_______ Buried. I direct that my body be buried at
                               .





                                        16
_______ Cremated. I direct that my cremated remains be disposed of as
follows:


_______     Entombed.      I   direct   that   my    body    be    entombed      at
                                   .


_______ Other. ______________________________________________

________ I direct that my body be disposed of as (                 name of
designee           ) shall specify in writing. If ________________________
is unwilling or unable to act, I nominate ________________________ as
my alternate designee.


        2. I request that the following ceremonial arrangements be made
(initial desired choice or choices):


  _______ I request that _______(name of designee)________ make all
arrangements for any ceremonies, consistent with my directions set forth in
this declaration. If ____________________ is unwilling or unable to act, I
nominate ______________________ as my alternate designee.


_______ Funeral. I request the following arrangements for my funeral:



_______ Memorial Service. I request the following arrangements for my
memorial service:




3. Special instructions. In addition to the instructions above, I request:
_____________________________________________________________

_____________________________________________________________

       4. I have entered into a preneed contract with (____name of funeral
home        ). I direct that the provisions set forth in that contract with respect
to the disposition of my body and ceremonial arrangements _____ shall be
followed ______ may be followed or not as my family member, designee,


                                        17
executor, or other person taking responsibility for the disposition of my body
and ceremonial arrangements shall determine.

       5. I own (or have the right to have my remains placed in) a grave,
vault, columbarium, or other repository designated as (designation of
gravesite, etc. ) in (name of cemetery, facility, etc.), located in (City,
State). I wish to have my remains deposited there.

       My executor shall indemnify any third party or designee for costs
incurred as a result of claims that arise against the third party or expenditures
made by the designee because of good-faith reliance on this declaration.

 I execute this declaration as my free and voluntary act, on ___________,
_____.
     ___________________________
(Declarant)


4. INCLUSION IN DURABLE POWER OF ATTORNEY

Note: The following form is offered as a suggestion only, and should be
tailored to the wishes of the client. In some cases, the client may not wish to
specify any particulars, leaving all decisions to the agent under the durable
power of attorney. In other cases, the client may wish certain procedures to
be followed, with the agent to have the power to make changes as he
determines.

        I revoke all prior declarations of my wishes regarding my funeral and
the disposition of my last remains, whether set forth in wills, codicils, trusts,
powers of appointment, health care documents, powers of attorney, or
otherwise, regarding the disposition of my last remains, and I declare and
direct that after my death these procedures be followed, subject to the ability
of my agent or alternate agent to vary such procedures at his discretion.

      1. If permitted by law, my body shall be

_______ Buried. I direct that my body be buried at
                               .





                                       18
_______ Cremated. I direct that my cremated remains be disposed of as
follows:



_______      Entombed.     I   direct   that   my    body     be   entombed      at
                                   .


_______ Other. ______________________________________________

______________I direct that my body be disposed of as my agent under my
durable power of attorney shall specify in writing.


        2. I request that the following ceremonial arrangements be made
(initial desired choice or choices):



  _______ I request that my agent under my durable power of attorney make
all arrangements for any ceremonies, consistent with my directions set forth
in this declaration. If my agent is unwilling or unable to act, I nominate and
appoint my alternate agent to make such arrangements.

_______ Funeral. I request the following arrangements for my funeral:


_______ Memorial Service. I request the following arrangements for my
memorial service:


      3. Special instructions. In addition to the instructions above, I request
(on the following lines you may make special requests regarding ceremonies
or                   lack                  of                   ceremonies):

_________________________________________
_____________________________________________________________

       4. I have entered into a preneed contract with (____name of funeral
home        ). I direct that the provisions set forth in that contract with respect
to the disposition of my body and ceremonial arrangements _____ shall be
followed ______ may be followed or not as agent under my durable power
of attorney shall determine.

                                        19
       5. I own (or have the right to have my remains placed in) a grave,
vault, columbarium, or other repository designated as (designation of
gravesite, etc. ) in (name of cemetery, facility, etc.), located in (City,
State). I wish to have my remains deposited there.

       My executor shall indemnify any third party or my agent for costs
incurred as a result of claims that arise against the third party or expenditures
made by my agent because of good-faith reliance on this declaration


5. PRE-NEED CONTRACT WITH FUNERAL HOME

      This contract will be on whatever form is provided by the funeral
home. The contract should be read with care, because some contracts
provide that they may not be altered in any way after death.

REVIEW OF STATE LAWS

      We will review the laws of the various states, looking at several
questions - who has the right to specify how a dead body should be disposed
of, and, if it is the decedent-to-be, how is the decedent to exercise his
advance directive?

       In some states the common law referred to earlier has not been
articulated by the courts. Where there is case law, but there is adequate
statutory provision, we have not cited the case law.

       It is often difficult to find statutory references when they exist. There
is no uniformity where they are set forth in the statutory scheme or how they
are entitled. Statutes having to do with disposal of dead bodies may be found
under “Undertakers,” “Funeral Directors,” “Probate” “Health Care
Directives,” “Disposal of Remains,” “Disposition of Remains,” “Dead
Bodies” “Health Care Proxies”, or some other title. As one example, in
Missouri information will be found under Title 75 “Regulation of Trade,
Commerce, and Investment” in Chapter 063 “Sales of Cemetery
Merchandise and Funeral Services.”

      Very often provisions dealing with the disposition of remains will be
found under statutory sections governing undertakers, and particularly under

                                       20
subsections having to do with cremation. Strangely, in some cases
provisions for disposition of remains have been specified by statute in a
section having to do with cremated bodies, but nothing is set forth anywhere
in the statutory scheme dealing with bodies which have not been cremated.

      Provisions for advance directives or direction through agents may be
found under “Durable Powers of Attorney” or “Health Care Powers of
Attorney.”

       In some cases, such as in Massachusetts, rules governing custody of
dead bodies and making of funeral arrangements are found, not in the
statutes, but in the regulations.

       Much of the case law has grown out of controversies involving
funeral directors – either cases in which the funeral directors were seeking
instructions from the courts to resolve multiple directions from relatives of
the deceased, cases in which funeral directors were suing for their charges,
or cases in which funeral directors were being sued by relatives of the
deceased for an improper disposition of the decedent’s body. Many of the
statutes setting forth the rights of family members appear to have been
enacted at the behest of funeral directors or cemeteries seeking resolution to
issues involving relatives of the deceased.

       In circumstances where the statutory provisions are complex, or the
inclusion of part of the enabling statute or statutes would be helpful we have
included them. In most cases the entire statutes have not been set forth, but
there is enough to give the reader and general idea of the statutory language,
and to provide the researcher the direct path to the statute or case law.

       Examination of the statutes in the various states will show the
different approaches to the question of who is to dispose of the body of the
decedent. Some states have simply left the common law untouched, relying
upon case reference to other states in the event of controversy.

Here is a detailed review of the laws in the various states:

ALABAMA

Case Law

                                     21
Brenda B. Payne v. Alabama Cemetery Association, Inc. et als, 413 So. 2d
1067 (Supreme Court of Alabama 1982)

      Brenda B. Payne arranged with Ross-Clayton Funeral Home, Inc. to
handle the funeral arrangements of her mother, and, later, her grandmother.
Both were to be buried in the same grave, the grandmother’s casket on top of
the mother’s. Both mother and grandmother were buried in Remount Park
Cemetery, operated by Alabama Cemetery Association, Inc. It was later
discovered that the casket containing the remains of Brenda’s mother had
disappeared, and the discussion in the judgment would suggest that someone
had dug up the casket to reuse it. Brenda sued for trespass and for the
negligent or wanton destruction of the bodily remains of her mother, which
had caused her emotional distress.

     The trial court granted summary judgment for the defendants. The
Supreme Court of Alabama reversed and remanded, stating:

       “Plaintiff’s action is grounded upon the legal rights vested in the next
of kin to maintain an action for unwarranted interference with a buried body.
We hold that such an action may be grounded in a non-trespass tort as well
as in trespass. The plaintiff, being the nearest relative present, is a proper
party to bring the action in tort, irrespective of any other possible theory of
recovery.”

Statutory Law
Section 34-13-11

Authorizing agent.

The following persons, in the priority listed herein, may serve as an
authorizing agent:

(1) The decedent’s spouse at the time of the decedent’s death.

(2) The decedent’s surviving children. If there is more than one child who
qualifies as an authorizing agent, any such child may serve as the
authorizing agent except, in the case of a cremation, such child must submit


                                      22
by affidavit the consent of all other surviving children to serve as
authorizing agent. If any surviving child is unable to be notified of a
pending cremation, the remaining children may select the authorizing agent
by submission of legal documentation of the inability to notify the absent
child or children. If the funeral director receives written objection to such
cremation from any child before cremation, no cremation shall be performed
except upon the written withdrawal of the objection or upon the order of a
court of competent jurisdiction.

(3) The decedent’s surviving parents. If the decedent is survived by two
parents, either parent may serve as the authorizing agent, except, in the case
of a cremation, such parent must submit by affidavit the consent of the other
surviving parent to serve as authorizing agent. If the other surviving parent
is unable to be notified of a pending cremation, a parent may serve as the
authorizing agent by submission of legal documentation of the inability to
notify the absent parent. If the funeral director receives written objection to
such cremation from either parent before cremation, no cremation shall be
performed except upon the written withdrawal of the objection or upon the
order of a court of competent jurisdiction.

(4) The decedent’s surviving siblings. If there is more than one sibling who
qualifies as an authorizing agent, any sibling may serve as the authorizing
agent except, in the case of a cremation, such sibling must submit by
affidavit the consent of all other surviving siblings to serve as authorizing
agent. If any surviving sibling is unable to be notified of a pending
cremation, the remaining siblings may select the authorizing agent by
submission of legal documentation of the inability to notify the absent
sibling or siblings. If the funeral director receives written objection to such
cremation from any sibling before cremation, no cremation shall be
performed except upon the written withdrawal of the objection or upon the
order of a court of competent jurisdiction.

(5)    Any person acting on the decedent’s signed written instructions
regarding final disposition contained in a preneed funeral contract, and, in
the case of cremation, a cremation authorization form signed by the
decedent.

(6) Any person serving as executor or legal representative of a decedent’s
estate and acting on the decedent’s signed, written instructions contained in
a will or other writing, regardless of whether the will has been probated.

                                      23
(7) The person in the next degree of kinship under the laws of descent and
distribution to inherit the decedent’s estate. If there is more than one person
of the same degree, any such person may serve as the authorizing agent.

(8) In the case of indigents or any other individuals whose final disposition
is the responsibility of the state or any of its subdivisions or agencies, a
public administrator, medical examiner, coroner, or any other public official
charged with arranging the final disposition shall serve as the authorizing
agent in the absence or refusal of any person described in subdivisions (1) to
(7), inclusive.

(9) In the absence or refusal of any person described in subdivisions (1) to
(7), inclusive, any person willing to assume the responsibility as authorizing
agent.

Note:

In the statutes of almost every state using the expression “authorizing agent”
it appears in connection with cremations. Presumably this would apply to
burials of bodies as well, though this is not set forth in the statute.

The reference to “the decedent’s spouse at the time of the decedent’s death”
is rather strange, since if someone were not married to the decedent at the
time of his death, it would appear that they would not be “the decedent’s
spouse.”

The function of an authorizing agent in Alabama is not set forth in the
statutes, but is mentioned in the material below which is not officially
codified. The reference to “board” is to the Alabama Board of Funeral
Service.

Cremation procedures; authorization; attestation of identity; records.
THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER.
THIS SECTION HAS NOT BEEN CODIFIED BY THE LEGISLATURE.

(a) Human remains shall not be cremated within 24 hours after the time of
death, unless death was the result of an infectious, contagious, or
communicable disease and unless the disease is verified and the time


                                      24
requirement waived y a medical examiner, county health director, county
coroner, or attending physician where the death occurred.

(b) A cremation authorization form prescribed by the board shall be signed
by the authorizing agent and must accompany any request for cremation. A
copy of the cremation authorization shall be presented with the body to the
crematory before any cremation process may be initiated.


ALASKA

Case Law                 There appears to be no relevant case law.

Statutory Law            There appears to be no relevant statutory law.


ARIZONA
Case Law                 There appears to be no relevant case law.

Statutory Law
TITLE 36 ARTICLE 831. Duty to bury body of dead person; notification to
Indian tribes; failure to perform duty: definitions

A. Except as provided pursuant to subsection F, the duty of burying the
body of or providing other funeral and disposition arrangements for a dead
person devolves in the following order:

1. If the dead person was married, on the surviving spouse.

2. If the dead person was a minor, on the parents.

3. If the dead person has no surviving spouse, on the adult children of the
dead person.

4. If none of the persons named in paragraphs 1, 2, and 3 of this subsection
are financially capable of providing for the burial or other funeral and


                                     25
disposition arrangements, or cannot be located on reasonable inquiry, on any
person or fraternal, charitable or religious organization willing to assume
responsibility.

B. If none of the person named in subsection A is willing or financially able
to bury or provide other funeral and disposition arrangements for a dead
person, the county in which death occurs shall bury or place in a permanent
care crypt the dead body or cremated remains of a dead body unless
otherwise directed by a person named in subsection A, paragraph 1, 2, or 3,
or by the written testamentary instruction of the decedent.

C. If the county medical examiner or person performing the duties of the
county medical examiner knows that the dead person is a member of a
federally recognized Native American tribe located in this state, the c ounty
medical examiner or person performing the duties of the county medical
examiner must notify the tribe and give the tribe the opportunity to provide
for the person’s burial or other funeral and disposition arrangements. If an
autopsy is required by section 11-597, the county medical examiner or
person performing the duties of the county medical examiner, if possible,
shall complete the autopsy and return the remains to the federally recognized
Native American tribe located in this state within four calendar days after
the determined date o death.

D. A person on whom the duty prescribed in subsection A is imposed who
omits to perform that duty within a reasonable time or is prohibited from
performing that duty under subsection G is liable to the person performing
the duty in an amount of two times the expenses the person incurred in
providing for the burial or other funeral and disposition arrangements. The
person who performs this duty may recover this amount in a civil action.

E. Notwithstanding the probate requirements of title 14, if a county is
required to bury a person pursuant to subsection B, the county may recover
the burial costs from the decedent’s estate. A financial institution in
possession of moneys in an account in the decedent’s name must reimburse
the county for the total costs on presentation by the county of an affidavit
that certifies:

1. The date of the decedent’s death.

2. That pursuant to this section, the county performed the decedent’s burial.

                                       26
3. The total burial costs incurred by the county.

F. A person, a corporation or an agency of government that provides for the
burial or other funeral and disposition arrangements on the instructions of a
person described in subsection A is immune from civil liability:

1. For failing to honor the wishes of the decedent or the wishes of a person
having a higher priority in subsection A or B if the person, corporation or
agency of government was not aware, after reasonable inquiry, of the
contrary wishes.

2. For refusing to follow conflicting directions of persons having the same
priority in subsection A.

3. For following directions of a personal representative that are consistent
with the written testamentary instructions of the decedent.

G. The duty to bury or to provide other funeral and disposition
arrangements devolves to the next person in the order prescribed pursuant to
subsection A if the person who is otherwise responsible for performing this
duty is charged with the criminal death of the person to whom the duty is
owed. The person who performs this duty may recover costs as prescribed
ins subsection D. If the charges against the person on whom this duty
originally fell are subsequently dismissed or are resolved in that person’s
favor on the merits, the person is responsible for only the actual costs.

H. For purposes of this section, “person” includes a natural person, a
corporation, a company, a partnership, a firm, an association, a society, the
United States, this state, any territory, state or country, an Arizona federally
recognized Native American tribe, any political subdivision of this state or a
public o private corporation or partnership or association.

I. For purposes of this article, “burial” includes cremation.

ARTICLE 831.01 Disposition of remains; duty to comply with decedent’s
wishes; exemption from liability.

A.    If the person on whom the duty of burial is imposed pursuant to
section 36-831 is aware of the decedent’s wishes regarding the disposition of

                                      27
his remains, that person shall comply with those wishes if they are
reasonable and do not impose an economic or emotional hardship.


Note:
       This is rather vague language. It is not at all clear what tests the court
is to use in determining whether the wishes of the decedent are “reasonable”
and whether they impose “an economic or emotional hardship” and on
whom the hardship must be imposed.

       It appears to be the general rule in most states that if the decedent left
instructions, they are to be followed, no matter how bizarre, so long as they
are not shocking to the community. For example, as noted earlier, there
have been instances of persons being buried in their automobiles.

       Should the decedent have a duty to be reasonable in his plans for his
funeral or disposition of his body? Suppose that the decedent wants to spend
a disproportionate amount of his estate in disposing of his remains? Are not
these funds his to do with?


ARKANSAS

Case Law
       The Supreme Court of Arkansas, in Dutton vs. Brashears Funeral
Home, 235 Ark. 120, 357 S. W. 2d 265, in a case involving the question of
whether the cost of the decedent’s funeral should be paid by the estate or by
the parents of the decedent, noted that “in case of husband and wife, the
right of possession is in the surviving spouse, provided the husband and wife
are living together at the time of the demise … the absence of the spouse, or
his or her failure or refusal to act, has the effect of transferring the right of
custody and duty of trusteeship to the next of kin in succession.”



       The Arkansas court referred with favor to the case of Southern L. &
Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161, 167, writ of
certiorari denied in [Ex parte Southern L. & Health Ins. Co.], 213 Ala. 413,

                                       28
105 So. 168) where the court said: "From a reading of all the decisions from
the American courts, it seems to be the law: (1) a dead body is not property
in the common commercial sense of that term, and subject strictly to the
laws of descent and distribution; (2) that the person having charge of a dead
body for burial is in the exercise of a sacred trust for all who may, from
family ties or friendship, have an interest in the remains; (3) that the right of
possession for burial is a legal right coupled with certain duties which the
courts will protect and that an unlawful interference with these rights is a
basis for suit for damages; (4) that, in case of husband and wife, the right of
possession is in the surviving spouse, provided the husband and wife were
living together at the time of the demise; (5) that the absence of the spouse,
or his or her failure or refusal to act, has the effect of transferring the right of
custody and duty of trusteeship to the next of kin in succession.”

Statutory Law
Arkansas Code §20-17-102. Arkansas Final Disposition Rights Act provides
that:

(a)(1) This section may be cited as the "Arkansas Final Disposition Rights
Act".

   (2) For purposes of this section, "final disposition" means the burial,
interment, cremation, removal from Arkansas, or other authorized
disposition of a dead body or fetus.

(b)(1) An individual of sound mind and eighteen (18) or more years of age
may execute at any time a declaration governing the final disposition of his
or her bodily remains at his or her death, provided the disposition is in
accordance with existing laws, rules, and practices for disposing of human
remains.

(2) The declaration of final disposition executed under this section shall be
signed by the declarant or another at the declarant's direction and shall be
witnessed by two (2) individuals.

(3) No additional consent of any other person is required if the declaration
of final disposition contains a disposition authorized under this section and is
otherwise valid under this section.


                                        29
(c) No person having possession, charge, or control of the declarant's human
remains following the death of a person who has executed a declaration of
final disposition shall knowingly dispose of the body in a manner
inconsistent with the declaration.

(d)(1) Crematory operators shall not be liable for civil damages for
cremating human remains if a declaration of final disposition indicating that
the declarant wished to be cremated has been executed under this section.

(2) Crematory operators shall not be liable for civil damages for failing to
cremate human remains if:

(A) The declarant executed a declaration of final disposition indicating that
he or she did not wish to be cremated; or

(B) The crematory operator knows that there is a dispute as to the validity of
the declaration of final disposition.

(e) If a decedent did not execute a declaration of final disposition, the
person having lawful possession, charge, or control of the decedent's human
remains has the right to dispose of the remains in any manner that is
consistent with existing laws, rules, and practices for disposing of human
remains, including the right to have the remains cremated.

(f) A funeral home shall not be liable for any damages for carrying out the
disposition of a decedent's human remains in any lawful manner that is
consistent with a decedent's declaration of final disposition.

Note: The advance directive specified in the statute is helpful. As in the
case of other state statutes, the thrust of the statute appears to be to protect
funeral homes or crematory facilities against claims. It is interesting that
there is a reference to “The crematory operator” – much of the statutory law
seems to be related to the protection of the crematory operator.


CALIFORNIA

Case Law                  There appears to be no relevant case law.


                                      30
Statutory Law
       HEALTH AND SAFETY CODE, SECTION 7100-7117, provides
that the right to direct disposition of the remains of a decedent rests with the
following:

       (1) An agent under a power of attorney for health care has the right
and duty of disposition under Division 4.7 (commencing with Section 4600)
of the Probate Code, except that the agent is liable for the costs of
disposition only in either of the following cases:
       (A) Where the agent makes a specific agreement to pay the costs of
disposition.
        (B) Where, in the absence of a specific agreement, the agent makes
decisions concerning disposition that incur costs, in which case the agent is
liable only for the reasonable costs incurred as a result of the agent's
decisions, to the extent that the decedent's estate or other appropriate fund is
insufficient.
       (2) The competent surviving spouse.
       (3) The sole surviving competent adult child of the decedent, or if
there is more than one competent adult child of the decedent, the majority of
the surviving competent adult children. However, less than the majority of
the surviving competent adult children shall be vested with the rights and
duties of this section if they have used reasonable efforts to notify all other
surviving competent adult children of their instructions and are not aware of
any opposition to those instructions by the majority of all surviving
competent adult children.
.      (a) The right to control the disposition of the remains of a deceased
person, the location and conditions of interment, and arrangements for
funeral goods and services to be provided, unless other directions have
been given by the decedent pursuant to Section 7100.1, vests in, and the duty
of disposition and the liability for the reasonable cost of disposition of the
remains devolves upon, the following in the order named:
       (4) The surviving competent parent or parents of the decedent. If one
of the surviving competent parents is absent, the remaining competent parent
shall be vested with the rights and duties of this section after reasonable
efforts have been unsuccessful in locating the absent surviving competent
parent.



                                      31
        (5) The sole surviving competent adult sibling of the decedent, or if
there is more than one surviving competent adult sibling of the decedent, the
majority of the surviving competent adult siblings. However, less than the
majority of the surviving competent adult siblings shall be vested with the
rights and duties of this section if they have used reasonable efforts to notify
all other surviving competent adult siblings of their instructions and are not
aware of any opposition to those instructions by the majority of all surviving
competent adult siblings.
       (6) The surviving competent adult person or persons respectively in
the next degrees of kinship, or if there is more than one surviving competent
adult person of the same degree of kinship, the majority of those persons.
Less than the majority of surviving competent adult persons of the same
degree of kinship shall be vested with the rights and duties of this section if
those persons have used reasonable efforts to notify all other surviving
competent adult persons of the same degree of kinship of their instructions
and are not aware of any opposition to those instructions by the majority of
all surviving competent adult persons of the same degree of kinship.
        (7) The public administrator when the deceased has sufficient assets.
       (b) (1) If any person to whom the right of control has vested pursuant
to subdivision (a) has been charged with first or second degree murder or
voluntary manslaughter in connection with the decedent's death and those
charges are known to the funeral director or cemetery authority, the right of
control is relinquished and passed on to the next of kin in accordance with
subdivision (a).
       (2) If the charges against the person are dropped, or if the person is
acquitted of the charges, the right of control is returned to the person.
       (3) Notwithstanding this subdivision, no person who has been charged
with first or second degree murder or voluntary manslaughter in connection
with the decedent's death to whom the right of control has not been returned
pursuant to paragraph (2) shall have any right to control disposition pursuant
to subdivision (a) which shall be applied, to the extent the funeral director or
cemetery authority
know about the charges, as if that person did not exist.
        (c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains, and to proceed under this
chapter to recover usual and customary charges for the disposition, when
both of the following apply:
       (1) Either of the following applies:




                                      32
         (A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (6), inclusive, of
subdivision (a) exists.
         (B) None of the persons described in paragraphs (1) to (6), inclusive,
of subdivision (a) can be found after reasonable inquiry, or contacted by
reasonable means.
         (2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given written
notice of the facts. Written notice may be delivered by hand, U.S. mail,
facsimile transmission, or telegraph.
       (d) The liability for the reasonable cost of final disposition devolves
jointly and severally upon all kin of the decedent in the same degree of
kinship and upon the estate of the decedent. However, if a person accepts
the gift of an entire body under subdivision (a) of Section 7155.5, that
person, subject to the terms of the gift, shall be liable for the reasonable cost
of final disposition of the decedent.
         (e) This section shall be administered and construed to the end that
the expressed instructions of the decedent or the person entitled to control
the disposition shall be faithfully and promptly performed.
       (f) A funeral director or cemetery authority shall not be liable to any
person or persons for carrying out the instructions of the decedent or the
person entitled to control the disposition.
         (g) For purposes of this section, "adult" means an individual who has
attained 18 years of age, "child" means a natural or adopted child of the
decedent, and "competent" means an individual who has not been declared
incompetent by a court of law or who has been declared competent by a
court of law following a declaration of incompetence.
       7100.1. (a) A decedent, prior to death, may direct, in writing, the
disposition of his or her remains and specify funeral goods and services to be
provided. Unless there is a statement to the contrary that is signed and dated
by the decedent, the directions may not be altered, changed, or otherwise
amended in any material way, except as may be required by law, and shall
be faithfully carried out upon his or her death, provided both of the
following requirements are met:
       (1) the directions set forth clearly and completely the final wishes of
the decedent in sufficient detail so as to preclude any material ambiguity
with regard to the instructions; and, (2) arrangements for payment through
trusts, insurance, commitments by others, or any other effective and binding
means, have been made, so as to preclude the payment of any funds by the


                                       33
survivor or survivors of the deceased that might otherwise retain the right to
control the disposition.
         (b) In the event arrangements for only one of either the cost of
interment or the cost of the funeral goods and services are made pursuant to
this section, the remaining wishes of the decedent shall be carried out only to
the extent that the decedent has sufficient assets to do so, unless the person
or persons that otherwise have the right to control the disposition and
arrange for funeral goods and services agree to assume the cost. All other
provisions of the directions shall be carried out.
         (c) If the directions are contained in a will, they shall be immediately
carried out, regardless of the validity of the will in other respects or of the
fact that the will may not be offered for or admitted to probate until a later
date.
        7101. When any decedent leaves an estate in this state, the reasonable
cost of interment and an interment plot of sufficient size to constitute a
family plot and memorial including reasonable sums for either, or both,
general and special endowment care of the plot proportionate to the value of
the estate and in keeping with the standard of living adopted by the decedent
prior to his demise, together with interest thereon from 60 days after the date
of death, shall be considered as a part of the funeral expenses of the decedent
and shall be paid as a preferred charge against his estate as provided in the
Probate Code.
         Reasonable costs of funeral services, together with interest thereon
from 60 days after the date of death, shall be considered as a part of the
funeral expenses of the decedent and shall be paid as a preferred charge
against his estate as provided in the Probate Code.
        If a claim for mortuary and funeral services, an interment plot or
memorial is rejected the burden of proving that the cost of the funeral
service, interment plot or memorial is disproportionate to the value of the
estate and the standard of living adopted by the decedent while living shall
be upon the executor or administrator rejecting the claim. This chapter does
not prohibit any relative or friend of a decedent from assuming the duty or
paying the expense of interment or the funeral services.
        7102. When a person is charged by law with the duty of interment he
is entitled to the custody of the remains for the purpose of interment or, with
respect to cremated remains, for the purpose of burial at sea in accordance
with the provisions of this division; except that in any case where a coroner
is required by law to investigate the cause of death, the coroner is entitled to
the custody of the remains of the person whose death is the subject of
investigation until the conclusion of the autopsy or medical investigation by

                                       34
the coroner. Any person in whose possession such remains are found, shall,
upon demand by the coroner, surrender such remains to him.
       7103. (a) Every person, upon whom the duty of interment is imposed
by law, who omits to perform that duty within a reasonable time is guilty of
a misdemeanor.
       (b) Every licensee or registrant pursuant to Chapter 12 (commencing
with Section 7600) or Chapter 19 (commencing with Section 9600) of
Division 3 of the Business and Professions Code, and the agents and
employees of the licensee or registrant, or any unlicensed person acting in a
capacity in which a license from the Cemetery and Funeral Bureau is
required, upon whom the duty of interment is imposed by law, who omits to
perform that duty within a reasonable time is guilty of a misdemeanor that
shall be punishable by imprisonment in a county jail not exceeding one year,
by a fine not exceeding ten thousand dollars ($10,000), or both that
imprisonment and fine.
       (c) In addition, any person, registrant, or licensee described in
subdivision (a) or (b) is liable to pay the person performing the duty in his or
her stead treble the expenses incurred by the latter in making the interment,
to be recovered in a civil action.
       7104. (a) When no provision is made by the decedent, or where the
estate is insufficient to provide for interment and the duty of interment does
not devolve upon any other person residing in the state or if such person can
not after reasonable diligence be found within the state the person who has
custody of the remains may require the coroner of the county where the
decedent resided at time of death to take possession of the remains and the
coroner shall inter the remains in the manner provided for the interment of
indigent dead.
        (b) A county exercising jurisdiction over the death of an individual
pursuant to Section 27491, or who assumes jurisdiction pursuant to Section
27491.55 of the Government Code, shall be responsible for the disposition
of the remains of that decedent. If the decedent is an indigent, the costs
associated with disposition of the remains shall be borne by the county
exercising jurisdiction.
       7104.1. If, within 30 days after the coroner notifies or diligently
attempts to notify the person responsible for the interment of a decedent's
remains which are in the possession of the coroner, the person fails, refuses,
or neglects to inter the remains, the coroner may inter the remains. The
coroner may recover any expenses of the interment from the responsible
person.


                                      35
        7105. (a) If the person or persons listed in paragraphs (1), (3),(4), (5),
and (6) of subdivision (a) of Section 7100 that would otherwise have the
right to control the disposition and arrange for funeral goods and services
fails to act, or fails to delegate his or her authority to act to some other
person within seven days of the death, or in the case of a person listed in
paragraph (2) of subdivision (a) of Section 7100, within 10 days of the
death, the right to control the disposition and arrange for funeral goods and
services shall be relinquished and passed on to the person or persons of the
next degree of kinship in accordance with subdivision (a) of Section 7100.
         (b) If the person or persons listed in paragraphs (1), (3), (4),(5), and
(6) of subdivision (a) of Section 7100 that would otherwise have the right to
control the disposition and arrange for funeral goods and services cannot be
found within seven days of the death, or in the case of a person listed in
paragraph (2) of subdivision (a) of Section 7100, within 10 days of the
death, after reasonable inquiry, the right to control the disposition and
arrange for funeral goods and services shall be relinquished and passed on to
the person or persons of the next degree of kinship in accordance with
subdivision (a) of Section 7100.
        (c) If any persons listed in paragraphs (1) to (6), inclusive, of
subdivision (a) of Section 7100 that would otherwise have equal rights to
control the disposition and arrange for funeral goods and services fail to
agree on disposition and funeral goods and services to be provided within
seven days of the date on which the right and duty of disposition devolved
upon the persons, a funeral establishment or a cemetery authority having
possession of the remains, or any person who has equal right to control the
disposition of the remains may file a petition in the superior court in the
county in which the decedent resided at the time of his or her death, or in
which the remains are located, naming as a party to the action those persons
who would otherwise have equal rights to control the disposition and
seeking an order of the court determining, as appropriate, who among those
parties will have the control of disposition and to direct that person to make
interment of the remains. The court, at the time of determining the person to
whom the right of disposition will vest, shall, from the remaining parties to
the action, establish an alternate order to whom the right to control
disposition will pass if the person vested with the right to control disposition
fails to act within seven days.
        (d) If the person vested with the duty of interment has criminal
charges pending against him or her for the unlawful killing of the decedent,
in violation of Section 187 of, or subdivision (a) or (b) of Section 192 of, the
Penal Code, the person or persons with the next highest priority prescribed

                                       36
by Section 7100 may petition a court of competent jurisdiction for an order
for control of the disposition of the decedent's remains. For this purpose, it
shall be conclusively presumed that the petitioner is the person entitled to
control the disposition of the remains if the petitioner is next in the order of
priority specified in Section 7100.
        7106. A cemetery authority may seek an order providing for the
interment of the remains of one or more decedents. Where a proceeding is
commenced involving the remains of more than one decedent the allegations
of the petition shall separately state the facts as to each, and the court may
make a separate order as to each.
        7107. Notice of the time and place of the hearing on the petition shall
be given as the court may direct. Upon the hearing the court shall make its
order providing for the interment of the remains in such manner, at such
time, and at such place as the court may determine to be just and proper, and
for the best interests of the public health.
        7108. If the coroner is directed to make such interment he shall make
it in the manner provided by law for the interment of the indigent dead.
        7109. The court shall allow costs and reasonable attorney's fees to a
prevailing plaintiff against all defendants, other than the coroner.
        7110. Any person signing any authorization for the interment or
cremation of any remains warrants the truthfulness of any fact set forth in
the authorization, the identity of the person whose remains are sought to be
interred or cremated, and his or her authority to order interment or
cremation. He or she is personally liable for all damage occasioned by or
resulting from breach of such warranty.
        7111. A cemetery authority or crematory may make an interment or
cremation of any remains upon the receipt of a written authorization of a
person representing himself or herself to be a person having the right to
control the disposition of the remains pursuant to Section 7100.
        A cemetery authority or crematory is not liable for cremating, making
an interment, or for other disposition of remains permitted bylaw, pursuant
to that authorization, unless it has actual notice that the representation is
untrue.
        7112. No action shall lie against any cemetery authority relating to
the cremated remains of any person which have been left in its possession
for a period of one year, unless a written contract has been entered into with
the cemetery authority for their care or unless permanent interment has been
made.
No licensed funeral director shall be liable in damages for the lawful
disposition of any cremated human remains.

                                      37
       7113. A cemetery authority or licensed funeral director or a licensed
hospital or its authorized personnel may permit or assist, and a physician
may perform, an autopsy of any remains in its or his custody if the decedent,
prior to his death, authorizes an autopsy in his will or other written
instrument, or upon the receipt of a written authorization, telegram, or a
verbal authorization obtained by telephone and recorded on tape or other
recording device, from a person representing himself to be any of the
following:
       (a) The surviving spouse; (b) a surviving child or parent; (c) a
surviving brother or sister; (d) any other kin or person who has acquired the
right to control the disposition of the remains; (e) a public administrator; (f)
a coroner or any other duly authorized public officer. A cemetery authority
or a licensed funeral director or a licensed hospital or its authorized
personnel is not liable for permitting or assisting, and a physician is not
liable for performing, an autopsy pursuant to such authorization unless he or
it has actual notice that such representation is untrue at the time the autopsy
is performed. If such authorization is contained in a will, the autopsy may
be performed regardless of the validity of the will in other respects or of the
fact that the will may not be offered for or admitted to probate until a later
date.
       This section shall not authorize the obtaining of a verbal authorization
by telephone and recorded on tape or other recording device for an autopsy
of a deceased person if it is made known to the physician who is to perform
the autopsy that the deceased was, at the time of his death, a member of a
religion, church, or denomination which relies solely upon prayer for the
healing of disease.
       7114. Any person who performs, permits or assists at, an autopsy on
a dead body without having first obtained (a) the authorization of the
deceased in writing, including, but not limited to, the last willof the
deceased; or (b) the authorization in writing of the person designated by
Section 7100 of this code as having the right to control the disposition of the
remains of the deceased; or (c) in the case of a cemetery authority or a
licensed funeral director or a licensed hospital or its agents or a physician,
the written or verbal authorization described in Section 7113 or 7151.6 of
this code, is guilty of a misdemeanor, except that this section shall not be
applicable to the performance of an autopsy by the coroner or other officer
authorized by law to perform autopsies.
       7116. Cremated remains may be scattered in areas where no local
prohibition exists, provided that the cremated remains are not
distinguishable to the public, are not in a container, and that the person who

                                      38
has control over disposition of the cremated remains has obtained written
permission of the property owner or governing agency to scatter on the
property. A state or local agency may adopt an ordinance, regulation, or
policy, as appropriate, authorizing, consistent with this section, or
specifically prohibiting, the scattering of cremated human remains on lands
under the agency's jurisdiction. The scattering of the cremated remains of
more than one person in one location pursuant to this section shall not create
a cemetery pursuant to Section 7003 or any other provision of law.
       7117. (a) Cremated remains may be taken by boat from any harbor in
this state, or by air, and scattered at sea. Cremated remains shall be removed
from their container before the remains are scattered at sea.
       (b) Any person who scatters at sea, either from a boat or from the air,
any human cremated remains shall, file with the local registrar of births and
deaths in the county nearest the point where the remains were scattered, a
verified statement containing the name of the deceased person, the time and
place of death, the place at which the cremated remains were scattered, and
any other information that the local registrar of births and deaths may
require. The first copy of the endorsed permit shall be filed with the local
registrar of births and deaths within 10 days of disposition. The third copy
shall be returned to the office of issuance.
       (c) For purposes of this section, the phrase "at sea" includes the inland
navigable waters of this state, exclusive of lakes and streams, provided that
no such scattering may take place within 500 yards of the shoreline.
Nothing in this section shall be construed to allow the scattering of cremated
human remains from a bridge or pier.
       (d) Notwithstanding any other provision of this code, the cremated
remains of a deceased person may be scattered at sea as provided in this
section and Section 103060.

Note: This is the most comprehensive of the state statutes. If the decedent
did not leave enough money to cover what he or she wished to be done, then
the person who pays may override the wishes of the decedent.

       If the person who would otherwise have responsibility for the
disposition of the decedent’s remains has criminal charges pending against
him or her for the unlawful killing of the decedent, they lose their rights to
direct the disposition of the decedent’s remains. If, however, the charges are
dropped, then they regain their rights. By the time that the charges were
disposed of, it is likely that the decedent’s remains would have been
disposed of.

                                      39
       In an interesting use of language, the statute provides that “Cremated
remains shall be removed from their container before the remains are
scattered at sea.” One wonders how cremated remains may be scattered if
they are not removed from their container.

COLORADO

Case Law                  There appears to be no relevant case law.

Statutory Law
15-19-101. Short title.
      This article shall be known and may be cited as the "Disposition of
Last Remains Act".

15-19-102. Legislative declaration - construction.
       (1) The general assembly finds and declares that:
       (a) A competent adult individual has the right and power to direct the
disposition of his or her remains after death and should be protected from
interested persons who may try to impose their wishes regarding such
disposition contrary to the deceased's desires.
       (b) A statute that determines priority of individuals to direct the
disposition of a decedent's remains is necessary if the decedent fails to direct
such disposition or if a dispute arises between interested persons regarding
such disposition.
       (c) The right to direct the disposition of one's remains needs to be
stated in writing to better protect a third party who relies in good faith on
such decisions.
       (2) This article shall be interpreted liberally to carry out a decedent's
intent when not conflicting with this article.
       (3) This article shall not be construed to:
       (a) Subject to section 15-19-104 (3), invalidate a declaration
instrument or will, codicil, trust, power of appointment, or power of
attorney;
       (b) Invalidate any act of an agent, guardian, or conservator;
       (c) Affect any claim, right, or remedy that accrued prior to August 6,
2003;


                                      40
       (d) Authorize or encourage acts that violate the constitution, statutes,
rules, case law, or public policy of Colorado or the United States;
       (e) Abridge contracts;
       (f) Modify the standards, ethics, or protocols of the practice of
medicine;
       (g) Compel or authorize a health care provider or health care facility,
as defined in section 15-14-505, to administer medical treatment that is
medically inappropriate or contrary to federal or other Colorado law; or
       (h) Permit or authorize euthanasia or an affirmative or deliberate act
to end a person's life.

        15-19-103. Definitions.
        As used in this article, unless the context otherwise requires:
        (1) "Adult" means a natural person eighteen years of age or older.
        (2) "Declarant" means a competent adult who signs a declaration
pursuant to the provisions of this article.
        (3) "Declaration instrument" means a written instrument, signed by a
declarant, governing the disposition of the declarant's last remains and the
ceremonies planned after a declarant's death, including a document
governing the disposition of last remains under part 7 of article 11 of this
title. Such a declaration may be made within a prepaid funeral, burial, or
cremation contract with a mortuary or crematorium.
        (4) "Interested person" means the deceased's spouse, parent, adult
child, sibling, grandchild, and other person designated in a declaration
instrument.
        (5) "Last remains" means the deceased's body or cremains after death.
        (6) "Reasonable under the circumstances", applied to the declarant's
instructions, means appropriate in relation to the declarant's finances,
cultural or family customs, and religious or spiritual beliefs. "Reasonable
under the circumstances" implies consideration of factors that include, but
are not limited to, a prepaid funeral, burial, or cremation plan of the
declarant; the size of the declarant's estate; the declarant's cultural or family
customs; the declarant's religious or spiritual beliefs; and the known or
reasonably ascertainable creditors of the declarant.
        (7) (a) "Third party" means a person:
        (I) Who is requested by a declaration instrument to act in good faith in
reliance upon such instrument;
        (II) Who is asked to dispose of last remains by the person with
priority to dispose of the decedent's last remains under section 15-19-106; or


                                       41
       (III) Who is delegated discretion over ceremonial or dispositional
arrangements in a declaration instrument.
       (b) "Third party" includes, but is not limited to, a funeral director,
mortician, mortuary, crematorium, or cemetery.
       (8) "Unreasonable" means an act that is clearly unreasonable pursuant
to the definition of "reasonable under the circumstances" under subsection
(6) of this section.

       15-19-104. Declaration of disposition of last remains.
       (1) The declarant may specify, in a declaration instrument, any one or
more of the following:
       (a) The disposition to be made of the declarant's last remains;
       (b) Who may direct the disposition of the declarant's last remains;
       (c) The ceremonial arrangements to be performed after the declarant's
death;
       (d) Who may direct the ceremonial arrangements after the declarant's
death;
       (e) The rights, limitations, immunities, and other terms of third parties
dealing with the declaration instrument.
       (2) A third party seeking to fulfill a declarant's intent regarding
disposition of last remains or ceremonial arrangements may disregard such
intent if such intent is unreasonable under the circumstances.
       (3) (a) The provisions of the most recent declaration instrument shall
control over any other document regarding the disposition of the last
remains.
       (b) This article shall govern all current and prior declaration
instruments.

       15-19-105. Reliance - declaration instruments.
       (1) (a) A third party who acts in good-faith reliance on a declaration
instrument that is legally executed shall not be subject to civil liability to any
greater extent than if the third party were dealing directly with the declarant
as a fully competent and living person. Such third party shall not be subject
to criminal liability or regulatory sanction for such reliance.
       (b) (I) A third party who deals with a declaration instrument may
presume, in the absence of actual knowledge to the contrary:
       (A) That the declaration instrument was validly executed; and
       (B) That the declarant was competent at the time the instrument was
executed.


                                       42
       (II) A third party who reasonably relies on a declaration instrument
shall not be civilly or criminally liable for the proper application of property
delivered or surrendered to comply with the declarant's instructions in the
declaration instrument.
       (2) The directions of a declarant expressed in a declaration instrument
shall be binding on all persons as if the declarant were alive and competent.
       (3) A third party who has reasonable cause to question the authenticity
or validity of a declaration instrument may promptly and reasonably seek
additional information from the person proffering such declaration or from
other involved persons. A third party may require exhibition of the original
declaration instrument or a notarized copy.

      15-19-106
      (1) The right to control disposition of the last remains or ceremonial
arrangements of a decedent vests in and devolves upon the following
persons, at the time of the decedent’s death, in the following order:
      (a) The decedent if acting through a declaration instrument.
      (b) (I) Either the appointed personal representative or special
administrator of the decedent’s estate if such person has been appointed; or
        II) The nominee for appointment as personal representative under
the decedent’s will if a personal representative or special administrator has
not been appointed;
      (c) The surviving spouse of the decedent, if not legally separated
from the decedent;
      (d) A majority of the surviving adult children of the decedent whose
whereabouts are reasonable ascertainable;
      (e) The surviving parents or legal guardians of the decedent whose
whereabouts are reasonably ascertainable;
      (f) A majority of the surviving adult siblings of the decedent whose
whereabouts are reasonably ascertainable;
      (g) The public administrator responsible for the decedent’s estate.

      TITLE 15, SECTION 19-106.
      15-19-106. Right to dispose of remains.
      (1) The right to control disposition of the last remains or ceremonial
arrangements of a decedent vests in and devolves upon the following
persons, at the time of the decedent's death, in the following order:
      (a) The decedent if acting through a declaration instrument;
      (b) (I) Either the appointed personal representative or special
administrator of the decedent's estate if such person has been appointed; or

                                      43
      (II) The nominee for appointment as personal representative under the
decedent's will if a personal representative or special administrator has not
been appointed;
      (c) The surviving spouse of the decedent, if not legally separated from
the decedent;
      (d) A majority of the surviving adult children of the decedent whose
whereabouts are reasonably ascertainable;
      (e) The surviving parents or legal guardians of the decedent whose
whereabouts are reasonably ascertainable;
      (f) A majority of the surviving adult siblings of the decedent whose
whereabouts are reasonably ascertainable;
      (g) The public administrator responsible for the decedent's estate.
      (2) To exercise the right to control final disposition pursuant to
paragraph (e) of subsection (1) of this section, the majority of parents and
guardians shall act in writing.
      (3) If the assent of multiple persons under paragraph (d), (e), or (f) of
subsection (1) of this section cannot be obtained, a final judgment of the
probate court of the county of the decedent's residence shall be required to
exercise the right to control final disposition. Such final judgement shall be
consistent with the decedent's last wishes to the extent they are reasonable
under the circumstances.

      15-19-107. Declaration of disposition of last remains.
      (1) Form. The following statutory declaration of disposition of last
remains is legally sufficient:
      DECLARATION OF DISPOSITION OF LAST REMAINS
       I, (name of declarant), being of sound mind and lawful age, hereby
revoke all prior declarations, wills, codicils, trusts, powers of appointment,
and powers of attorney regarding the disposition of my last remains, and I
declare and direct that after my death the following provisions be taken:

      1. If permitted by law, my body shall be (initial ONE choice):

 _______ Buried. I direct that my body be buried at
                                  .

_______ Cremated. I direct that my cremated remains be disposed of as
follows:
 .

 _______ Entombed. I direct that my body be entombed at
                                  .

_______ Other. I direct that my body be disposed of as follows:
 .

 _______ Disposed of as (name of designee) shall decide in writing. If


                                      44
________________________ is unwilling or unable to act, I nominate
________________________ as my alternate designee.

        2. I request that the following ceremonial arrangements be made
(initial desired choice or choices):
                     _______ I request
____________________________ (name of designee) make all
arrangements for any ceremonies, consistent with my directions set forth in
this declaration. If ________________________ is unwilling or unable to
act, I nominate ______________________ as my alternate designee.

 _______ Funeral. I request the following arrangements for my funeral:
 .

   _______ Memorial Service. I request the following arrangements for my
memorial service:
 .

        3. Special instructions. In addition to the instructions above, I request
(on the following lines you may make special requests regarding ceremonies
or lack of ceremonies):
 .
       Note: Those persons or entities asked to carry
out a declarant's intent regarding disposition of last remains and ceremonial
arrangements need do so only if the declarant's intent is reasonable under the
circumstances. "Reasonable under the circumstances" may take into
consideration factors such as a known prepaid funeral, burial, or cremation
plan of the declarant, the size of the declarant's estate, cultural or family
customs, the declarant's religious or spiritual beliefs, the known or
reasonably ascertainable creditors of the declarant, and the declarant's
financial situation prior to death.
     I may revoke or amend this declaration
in writing at any time. I agree that a third party who receives a copy of this
declaration may act according to it. Revocation of this declaration is not
effective as to a third party until the third party learns of my revocation. My
estate shall indemnify any third party for costs incurred as a result of claims
that arise against the third party because of good-faith reliance on this
declaration.
      I execute this declaration as my free and voluntary act, on
________________________, _____.
              ___________________________
(Declarant)
     THE FOLLOWING SECTION REGARDING ORGAN AND TISSUE
DONATION IS OPTIONAL. To make a donation, initial the option you
select and sign below.
         In the hope that I might help others, I hereby
make an anatomical gift, to be effective upon my death, of:

A._______ Any needed organs/tissues

B._______        The       following      organs/tissues:
 Donor       signature:
__________________________________________
 Notarization
optional:





                                       45
STATE OF COLORADO ss.
                               COUNTY OF
____________
Acknowledged before me by __________, Declarant, on __________,
___.

My      commission     expires:      ______________
 [seal]

 _________________________
     Notary Public

       (2) Requirements. The form set forth in subsection (1) of this section
is not exclusive, and a person may use another form of declaration
instrument if the wording of the form complies substantially with subsection
(1) of this section, the form is properly completed, and the form is in writing,
dated, and signed by the declarant. Such a declaration may be
acknowledged.
       (3) A declaration may be revoked by the declarant in writing or by
burning, tearing, canceling, obliterating, or destroying the declaration
instrument with the intent to revoke such instrument.
       (4) (a) Unless otherwise expressly provided in a declaration
instrument, a subsequent divorce, dissolution of marriage, annulment of
marriage, or legal separation between the declarant and spouse automatically
revokes a delegation to the declarant's spouse to direct the disposition of the
declarant's last remains or ceremonies after the declarant's death. This
paragraph (a) shall not be construed to revoke the remaining provisions of
the declaration instrument.
       (b) Unless otherwise specified in the declaration instrument, if a
declarant revokes a delegation to a person to direct the disposition of the
declarant's last remains or ceremonies after the declarant's death, or if suc h
person is unable or unwilling to serve, the nomination of such person shall
be ineffective as to such person. If an alternate designee is not nominated by
the declarant, section 15-19-106 shall govern. This paragraph (b) shall not be
construed to revoke the remaining provisions of the declaration instrument.
       15-19-108. Interstate effect of declaration.
       (1) Unless otherwise stated in a declaration instrument, it shall be
presumed that the declarant intends to have his or her declaration instrument
executed pursuant to this article and recognized to the fullest extent possible
by other states.
       (2) Unless otherwise provided in the declaration instrument, a
declaration instrument or similar instrument executed in another state that
complies with the requirements of this article may, in good faith, be relied
upon by a third party in this state if an action requested by such declarant


                                      46
does not violate any law of the federal government, Colorado, or a political
subdivision.

Note: This form incorporates an appointment of an agent to handle funeral
arrangements and disposition matters.


CONNECTICUT

Case Law                  There appears to be no relevant case law.

Statutory Law

Substitute Senate Bill No. 1124 Public Act No. 05-197
AN ACT CONCERNING THE CUSTODY OF REMAINS OF
DECEASED PERSONS AND ANNUAL MEETINGS AND FINANCIAL
STATEMENTS OF CEMETERY ASSOCIATIONS.
Be it enacted by the Senate and House of Representatives in General
Assembly convened:
       Section 1. Section 45a-318 of the general statutes is repealed and the
following is substituted in lieu thereof (Effective October 1, 2005):
       (a) Any person eighteen years of age or older, and of sound mind,
may execute in advance of such person's death a cremation authorization on
a form authorized by the Department of Public Health for the incineration or
cremation of such person's body upon the death of such person. Any such
document shall be signed and dated by the maker, and attested in writing by
two witnesses that the maker was of sound mind and capacity at the time of
execution of the authorization. The maker shall include on the form
authorized by the Department of Public Health the name, residence address
and residence telephone number for the spouse or if there is no surviving
spouse, then the next of kin or designated person, duly acknowledged in
writing, who shall be notified within the forty-eight-hour waiting period
prior to a cremation upon the death of such person. If the spouse, next of kin
or designated person is unavailable at the time of death of such person, the
funeral director shall refer this matter to the Court of Probate for the district
of the domicile or residence of the deceased to grant custody and control to
some suitable person] written document, subscribed by such person and
attested by two witnesses, either: (1) Directing the disposition of such
person's body upon the death of such person, which document may also

                                       47
designate an individual to have custody and control of such person's body
and to act as agent to carry out such directions; or (2) if there are no
directions for disposition, designating an individual to have custody and
control of the disposition of such person's body upon the death of such
person. Such disposition shall include, but not be limited to, cremation,
incineration, disposition of cremains, burial, method of interment and
cryogenic preservation. Any such document may designate an alternate to an
individual designated under subdivision (1) or (2) of this subsection.
        (b) The custody and control of the remains of deceased residents of
this state shall belong to the surviving spouse of the deceased. If the
surviving spouse had abandoned, and at the time of death was living apart
from, the deceased, or if there is no spouse surviving, then such custody and
control shall belong to the next of kin, unless the decedent, in a duly
acknowledged writing, designated another person to have custody and
control of the remains of the decedent. The court of probate for the district of
the domicile of the deceased may at any time, upon the petition of any of the
kin or such person, award such custody and control to that person who
seems to the court most fit to have the same. If a deceased resident of the
state leaves no spouse, next of kin or designated person surviving, or if the
spouse, next of kin or designated person cannot be contacted after due
diligence to assume custody and control of the remains of such decedent as
provided in this section, or if the spouse, next of kin or designated person
refuses to assume such custody and control, the court of probate for the
district of the domicile or residence of the deceased may, upon the petition
of a selectman or chief officer of such town, a licensed funeral director or
the director of health of such town, grant such custody and control to some
suitable person. If a person has executed a cremation authorization for the
incineration or cremation of such person's body upon death on a form
authorized by the Department of Public Health, as described in subsection
(a) of this section, and a good faith effort has been made to notify the
spouse, next of kin or designated person, or an order from the Probate Court
has been obtained, then such instructions may be relied upon by any person
acting reasonably and in good faith in reliance upon such written instructions
and shall permit any licensed funeral director to obtain a cremation
certificate, a cremation permit and carry out the cremation, in accordance
with the provisions of section 19a-323. If the funeral director's decision and
conduct in the performance of a cremation was reasonable and warranted
under the circumstances, then no person may challenge the funeral director's
decision to obtain a cremation certificate, a cremation permit and the
carrying out of such cremation.

                                      48
        (c) This section shall not apply to the disposition of a body of a
deceased person under the provisions of sections 19a-270 and 54-102; nor
shall it affect the powers and duties of the Chief Medical Examiner under the
provisions of sections 19a-406 to 19a-408, inclusive. ]
        (b) No person may challenge a funeral director's decision to carry out
the directions for disposition contained in a document executed for the
purposes of subsection (a) of this section if the funeral director's decision
and conduct in carrying out such directions for disposition in reliance on
such document was reasonable and warranted under the circumstances.
        (c) In the absence of a written designation of an individual pursuant to
subsection (a) of this section, or in the event that an individual and any
alternate designated pursuant to subsection (a) of this section declines to act
or cannot be located within forty-eight hours after the time of death or the
discovery of the body, the following individuals, in the priority listed, shall
have the right to custody and control of the disposition of a person's body
upon the death of such person, subject to any directions for disposition made
by such person pursuant to subdivision (1) of subsection (a) of this section:
        (1) The deceased person's spouse, unless such spouse abandoned the
deceased person prior to the deceased person's death or has been adjudged
incapable by a court of competent jurisdiction;
        (2) The deceased person's surviving adult children;
        (3) The deceased person's surviving parents;
        (4) The deceased person's surviving siblings;
        (5) Any adult person in the next degree of kinship in the order named
by law to inherit the deceased person's estate, provided such adult person
shall be of the third degree of kinship or higher;
        (6) Such adult person as the Probate Court shall determine.
        (d) A document executed by a person for the purposes of subsection
(a) of this section shall revoke any document previously executed by such
person for the purposes of said subsection or any prior cremation
authorization or other authorization for the disposition of remains executed
by such person and may be in substantially the following form, but the use
of such form shall not preclude the use of any other form:
DISPOSITION OF REMAINS AND APPOINTMENT OF AGENT
        I, …., of …., being of sound mind, make known that upon my death
my body shall be disposed of in the following manner:
(Insert desired disposition directions)
        I appoint …., having an address and telephone number of …., to have
custody and control of my body to act as my agent to carry out the
disposition directions expressed in this document, and in the absence of

                                      49
disposition directions, to have custody and control of my body and to
determine the disposition of my body. If …. shall decline to act or cannot be
located within forty-eight hours of my death or the discovery of my body,
then …., having an address and telephone number of …., shall act in that
person's place and stead.
       Executed at (insert location of execution), Connecticut on (insert date
of execution).
….
(Signature)
       Signed in our presence by …. who, at the time of the execution of this
document, appeared to be of sound mind and over eighteen years old.
…. of ….
….
(Signature of witness)
…. of ….
….
(Signature of witness)
       (e) The court of probate for the district of the domicile or residence of
a deceased person shall have jurisdiction to hear and decide any issue
regarding the custody, control or disposition of the deceased person's body,
upon the petition of any individual designated by the deceased person
pursuant to subsection (a) of this section, the individual entitled to custody
and control under subsection (c) of this section if no designation is made
pursuant to subsection (a) of this section, the first selectman, chief executive
officer or director of health of the town in which the deceased person's body
is being held, or the funeral director or any other person or institution
holding the deceased person's body, and upon such notice to interested
parties as the court shall determine.

      Note: The statute refers to “cryogenic preservation.” Eventually we
will have statutes that are totally up-to-date and refer to disposition of the
decedent’s cremains in space!

      The statute suggests a very simple form of directive and appointment
of agent.

DELAWARE

Case Law                  There appears to be no relevant case law.


                                      50
Statutory Law
TITLE 12
       Decedents' Estates and Fiduciary Relations
       PART II
       Wills
       CHAPTER 2. GENERAL PROVISIONS
       Subchapter III. Disposition of a Person's Last Remains
       § 260. Definitions.
As used in this subchapter, unless the context otherwise requires:
       (1) "Adult" means a natural person 18 years of age or older.
       (2) "Declarant" means a competent adult who signs a declaration
pursuant to the provisions of this article.
       (3) "Declaration instrument" means a written instrument, signed by a
declarant, governing the disposition of the declarant's last remains and the
ceremonies planned after a declarant's death, including a document
governing the disposition of last remains under this title. Such a declaration
may be made within a prepaid funeral, burial, or cremation contract with a
mortuary or crematorium.
       (4) "Interested person" means the deceased's spouse, parent, adult
child, sibling, grandchild, and other person designated in a declaration
instrument.
       (5) "Last remains" means the deceased's body or cremains after death.
       (6) "Reasonable under the circumstances", applied to the declarant's
instructions, means appropriate in relation to the declarant's finances,
cultural or family customs, and religious or spiritual beliefs. "Reasonable
under the circumstances" implies consideration of factors that include, but
are not limited to, a prepaid funeral, burial or cremation plan of the
declarant; the size of the declarant's estate; the declarant's cultural or family
customs; the declarant's religious or spiritual beliefs; and the known or
reasonably ascertainable creditors of the declarant.
       (7)a. "Third party" means a person:
       1. Who is requested by a declaration instrument to act in good faith in
reliance upon such instrument;
       2. Who is delegated discretion over ceremonial or dispositional
arrangements in a declaration instrument under § 264 of this title; or
       3. Who is delegated discretion over ceremonial or dispositional
arrangements in a declaration instrument.


                                       51
       b. "Third party" includes, but is not limited to, a funeral director,
mortician, mortuary, crematorium, or cemetery.
       (8) "Unreasonable" means an act that is clearly unreasonable, pursuant
to the definition of "reasonable under the circumstances" under paragraph
(6) of this section. (74 Del. Laws, c. 295, § 1.)
       § 261. Limitations.
This subchapter shall not be construed to:
       (1) Invalidate a declaration instrument or will, codicil, trust, power of
appointment or power of attorney;
       (2) Invalidate any act of an agent, guardian, or conservator;
       (3) Affect any claim, right or remedy that accrued prior to June 30,
2004;
       (4) Authorize or encourage acts that violate the constitution, statutes,
rules, case law or public policy of Delaware or the United States;
       (5) Abridge contracts;
       (6) Modify the standards, ethics or protocols of the practice of
medicine;
       (7) Compel or authorize a health care provider or health care facility,
to administer medical treatment that is medically inappropriate or contrary to
federal or other Delaware law; or
       (8) Permit or authorize euthanasia or an affirmative or deliberate act
to end a person's life. (74 Del. Laws, c. 295, § 1.)
       § 262. Declaration of Disposition of Last Remains.
       The declarant may specify, in a declaration instrument, any 1 or more
of the following:
       (1) The disposition to be made of the declarant's last remains;
       (2) Who may direct the disposition of the declarant's last remains;
       (3) The ceremonial arrangements to be performed after the declarant's
death;
       (4) Who may direct the ceremonial arrangement after the declarant's
death; or
       (5) The rights, limitations, immunities, and other terms of third parties
dealing with the declaration instrument. (74 Del. Laws, c. 295, § 1.)
       § 263. Reliance upon declaration instruments.
       (a) A third party who acts in good faith reliance on a declaration
instrument that is legally executed shall not be subject to civil liability to any
greater extent than if the third party were dealing directly with the declarant
as a fully competent and living person. Such third party shall not be subject
to criminal liability or regulatory sanction for such reliance.


                                       52
       (b) A third party who deals with a declaration instrument may
presume in the absence of actual knowledge to the contrary:
       (1) That the declaration instrument was validly executed; and
       (2) That the declarant was competent at the time the instrument was
executed.
       (c) A third party who reasonably relies on a declaration instrument
shall not be civilly or criminally liable for the proper application of property
delivered or surrendered to comply with the declarant's instructions in the
declaration instrument.
       (d) The directions of a declarant expressed in a declaration instrument
shall be binding on all persons as if the declarant were alive and competent.
       (e) A third party who has reasonable cause to question the authenticity
or validity of a declaration instrument may promptly and reasonably seek
additional information from the person proffering such declaration or from
other involved persons. A third party may require exhibition of the original
declaration instrument or a notarized copy.
       (f) A third party seeking to fulfill a declarant's intent regarding
disposition of last remains or ceremonial arrangements may disregard such
intent if such intent is unreasonable under the circumstances. (74 Del. Laws,
c. 295, § 1.)
       § 264. Right to dispose of remains.
       (a) The right to control disposition of the last remains or ceremonial
arrangements of a decedent vests in and devolves upon the following
persons, at the time of the decedent's death, in the following order:
       (1) The decedent if acting through a declaration instrument;
       (2) Either the appointed personal representative or special
administrator of the decedent's estate if such person has been appointed; or
the nominee for appointment as personal representative under the decedent's
will if a personal representative or special administrator has not been
appointed;
       (3) The surviving spouse of the decedent, if not legally separated from
the decedent;
       (4) A majority of the surviving adult children of the decedent whose
whereabouts are reasonably ascertainable;
       (5) The surviving parents or legal guardians of the decent whose
whereabouts are reasonably ascertainable;
       (6) A majority of the surviving adult siblings of the decedent whose
whereabouts are reasonably ascertainable; and
       (7) The public administrator responsible for the decedent's estate.


                                      53
        (b) To exercise the right to control final disposition pursuant to
paragraph (a)(5) of this section, the majority of parents and guardians shall
act in writing.
        (c) If the assent of multiple persons under paragraphs (a)(4), (5), or (6)
of this section cannot be obtained, a final judgment of the Chancery Court of
the county of the decedent's residence shall be required to exercise the right
to control final disposition. Such final judgment shall be consistent with the
decedent's last wishes to the extent they are reasonable under the
circumstances. (74 Del. Laws, c. 295, § 1.)
        § 265. Declaration of Disposition of Last Remains; form.
        The following declaration of disposition of last remains must be
substantially in the following form:
        DECLARATION OF DISPOSITION OF LAST REMAINS
        I, ________________________ (Name of Declarant), being of sound
mind and lawful age, hereby revoke all prior declarations, wills, codicils,
trusts, powers of appointment, and powers of attorney regarding the
disposition of my last remains, and I declare and direct that after my death
the following provisions be taken:
        1. If permitted by law, my body shall be (Initial ONE choice):
____       Buried.     I     direct    that   my     body    be     buried      at
____________________________.
____ Cremated. I direct that my cremated remains be disposed of as follows:
_____________________________________________________________
_____.
____ Entombed. I direct that my body be entombed at
______________________.
____ Other. I direct that my body be disposed of as follows:
________________
_____________________________________________________________
_____.
____ Disposed of as ________________________ (Name of Designee)
shall decide
in writing. If ________________________ is unwilling or unable to act, I
nominate ________________________ as my alternate designee.
        2. I request that the following ceremonial arrangements be made
(initial
desired choice or choices):
____ I request ________________________ (Name of designee) make all
arrangements for any ceremonies, consistent with my directions set forth in


                                       54
this declaration. If ________________________ is unwilling or unable to
act, I
nominate ________________________ as my alternate designee.
____ Funeral. I request the following arrangements for my funeral:
__________
_____________________________________________________________
______.
____ Memorial Service. I request the following arrangements for my
memorial                                                                 service:
_____________________________________________________________
_____________________________________________________________
_________.
       3. Special Instructions. In addition to the instructions above, I request
(on the following lines you may make special requests regarding ceremonies
or                    lack                    of                    ceremonies):
_________________________________________________________
_____________________________________________________________
____________
_____________________________________________________________
____________.
       Note: Those persons or entities asked to carry out a declarant's intent
regarding disposition of last remains and ceremonial arrangements need do
so only if the declarant's intent is reasonable under the circumstances.
       "Reasonable under the circumstances" may take into consideration
factors suchas a known prepaid funeral, burial, or cremation plan of the
declarant, the size of the declarant's estate, cultural or family customs, the
declarant's religious or spiritual beliefs, the known or reasonably
ascertainable creditors of the declarant, and the declarant's financial situation
prior to death.
       I may revoke or amend this declaration in writing at any time. I agree
that a third party who receives a copy of this declaration may act according
to it.
       Revocation of this declaration is not effective as to a third party until
the third party learns of my revocation. My estate shall indemnify any third
party for costs incurred as a result of claims that arise against the third party
because of good-faith reliance on this declaration.
       I execute this declaration as my free and voluntary act, on
________________.
(Declarant)
__________________________________________________________

                                       55
       The following section regarding organ and tissue donation is optional.
To make a donation, initial the option you select and sign below.
       In the hope that I might help others, I hereby make an anatomical gift,
to be effective upon my death, of:
A. ____ Any needed organs
B.                                The                               following
organs______________________________________________
_____________________________________________________________
____________.
Donor                                                               signature:
__________________________________________________________
Notarization Optional:
State of Delaware
County of ____________ :
Acknowledged before me by ____________________________, Declarant,
on
____________, ____. My commission expires:
*(Seal)                                                                Notary
Public_______________________________________________ .
       (74 Del. Laws, c. 295, § 1.)
       § 266. Declaration; other points of form.
       (a) The form set forth in § 265 of this title is not exclusive, and a
person may use another form of declaration instrument if the wording of the
form complies substantially with § 265 of this title, the form is properly
completed, and the form is in writing, dated, and signed by the declarant.
       (b) A declaration instrument may be acknowledged, but lack of
acknowledgment shall not render the declaration ineffective.
       (c) This subchapter shall apply to declaration instruments executed or
exercised in Delaware and to declaration instruments signed or exercised by
a person who is a resident of Delaware when such instrument is signed or
exercised.
       (d) The provisions of the most recent declaration instrument shall
control over any other document regarding the disposition of the last
remains. (74 Del. Laws, c. 295, § 1.)
       § 267. Declaration; revocation generally.
       A declaration may be revoked by the declarant in writing or by
burning, tearing, canceling, obliterating, or destroying the declaration
instrument with the intent to revoke such instrument. (74 Del. Laws, c. 295,
§ 1.)
       § 268. Declaration; revocation by divorce.

                                     56
Unless otherwise expressly provided in a declaration instrument, a
subsequent divorce, dissolution of marriage, annulment of marriage, or legal
separation between the declarant and spouse automatically revokes a
delegation to the declarant's spouse to direct the disposition of the declarant's
last remains or ceremonies after the declarant's death. This section shall not
be construed to revoke the remaining provisions of the declaration
instrument. (74 Del. Laws, c. 295, § 1.)
       § 269. Declaration; revocation of designee.
Unless otherwise specified in the declaration instrument, if a declarant
revokes a delegation to a person to direct the disposition of the declarant's
last remains or ceremonies after the declarant's death, or if such person is
unable or unwilling to serve, the nomination of such person shall be
ineffective as to such person. If an alternate designee is not nominated by the
declarant, § 264 of this title shall govern. This section shall not be construed
to revoke the remaining provisions of the declaration instruments. (74 Del.
Laws, c. 295, § 1.)
       § 270. Interstate effect of declaration.
(a) Unless otherwise stated in a declaration instrument, it shall be presumed
that the declarant intends to have his or her declaration instrument executed
pursuant to this subchapter and recognized to the fullest extent possible by
other states.
(b) Unless otherwise provided in the declaration instrument, a declaration
instrument or similar instrument executed in another state that complies with
the requirements of this subchapter may, in good faith, be relied upon by a
third party in this State if an action requested by such declarant does not
violate any law of the federal government, Delaware, or a political
subdivision. (74 Del. Laws, c. 295, § 1; 70 Del. Laws, c. 186, § 1.)

Note: There is a limitation on what the decedent may specify is to be done
with his or her body. “Reasonable under the circumstances” will change
over time.

      The language in the Delaware statute, including the suggested form, is
substantially the same as that in the Colorado statute.

DISTRICT OF COLUMBIA

Case Law                  There appears to be no relevant case law.



                                       57
Statutory Law              There appears to be no relevant statutory law.


FLORIDA

Case Law                   There appears to be no relevant case law.

Statutory Law
TITLE XXXII CHAPTER 470.002(18)
18) "Legally authorized person" means, in the priority listed, the decedent,
when written inter vivos authorizations and directions are provided by the
decedent, the surviving spouse, unless the spouse has been arrested for
committing against the deceased an act of domestic violence as defined in S.
741.28, a son or daughter who is 18 years of age or older, a parent, a brother
or sister 18 years of age or over, a grandchild who is 18 years of age o r
older, or a grandparent; or any person in the next degree of kinship. In
addition, the term may include, if no family exists or is available, the
following: the guardian of the dead person at the time of death; the personal
representative of the deceased; the attorney in fact of the dead person at the
time of death; the health surrogate of the dead person at the time of death; a
public health officer; the medical examiner, county commission or
administrator acting under part II of chapter 406, or other public
administrator; a representative of a nursing home or other health care
institution in charge of final disposition; or a friend or other person not listed
in this subsection who is willing to assume the responsibility as authorized
person.
Title XLII Estates and Trusts
732.804 Provisions relating to disposition of the body. Before issuance of
letters, any person may carry out written instructions of the decedent relating
to the decedent’s body and funeral and burial arrangements. The fact that
cremation occurred pursuant to a written direction signed by the decedent
that the body be cremated is a complete defense to a cause of action against
any person acting or relying on that direction.

Note: The statute provides that if a spouse has been arrested for committing
against the deceased an act of domestic violence, then he or she may not
make decisions as to the disposition of the body of the decedent. In some


                                       58
other states, the spouse must be charged with causing the decedent to be
such in order to lose the right to make decisions.


GEORGIA

Case Law                  There appears to be no relevant case law.

Statutory Law

GEORGIA CODE SECTION CHAPTER 43-18-1 (From a section of the
statutes dealing with funerals)
       16) 'Legally authorized person' means the deceased´s surviving
spouse, a son or daughter who is 18 years of age or older; the deceased´s
parent, a brother or sister who is 18 years of age or older; any other person
who is 18 years of age or older and who is in the next degree of kinship to
the deceased; the deceased´s guardian or personal representative; or a public
health officer.

31-36-1.
       This chapter shall be known and may be cited as the 'Durable Power
of Attorney for Health Care Act.'
31-36-2
       (a) The General Assembly recognizes the right of the individual to
control all aspects of his or her personal care and medical treatment,
including the right to decline medical treatment or to direct that it be
withdrawn. However, if the individual becomes disabled, incapacitated, or
incompetent, his or her right to control treatment may be denied unless the
individual, as principal, can delegate the decision-making power to a trusted
agent and be sure that the agent’s power to make personal and health care
decisions for the principal will be effective to the same extent as if made by
the principal.
       (b) This recognition of the right of delegation for health care purposes
must be stated to make it clear that its scope is intended to be as broad as the
comparable right of delegation for property and financial matters. However,
the General Assembly recognizes that powers concerning health care
decisions are more sensitive than property matters and that particular rules
and forms are necessary for health care agencies to ensure their validity and
efficacy and to protect health care providers so that they will honor the
authority of the agent at all times. Nothing in this chapter shall be deemed

                                      59
to authorize or encourage euthanasia, suicide, or any action or course of
action that violates the criminal laws of this state or the United States.
In furtherance of these purposes, the General Assembly enacts this chapter,
setting forth general principles governing health care agencies, as well as a
statutory short form durable power of attorney for health care, int ending that
when a power in substantially the form set forth in this chapter is used,
health care providers and other third parties who rely in good faith on the
acts and decisions of the agent within the scope of the power may do so
without fear of civil or criminal liability to the principal, the state, or any
other person. However, the form of health care agency set forth in this
chapter is not intended to be exclusive, and other forms of powers of
attorney chosen by the principal that comply with Code Section 31-16-5 may
offer powers and protections similar to the statutory short form durable
power of attorney for health care.
       31-36 The health care powers that may be delegated to an agent
include, without limitation, all powers an individual may have to be
informed about and to consent to or refuse or withdraw any type of health
care for the individual. A health care agency may extend beyond the
principal´s death if necessary to permit anatomical gift, autopsy, or
disposition of remains.
       31-36-5 Nothing in this chapter shall impair or supersede any legal
right or legal responsibility which any person may have to effect the
withholding or withdrawal of life-sustaining or death-delaying procedures in
any lawful manner, and the provisions of this chapter are cumulative in such
respect.
       31-36-6. (a) Every health care agency may be revoked by the
principal at any time, without regard to the principal´s mental or physical
condition, by any of the following methods:
       (1) By being obliterated, burned, torn, or otherwise destroyed or
defaced in a manner indicating an intention to revoke;
       (2) By a written revocation of the agency signed and dated by the
principal or by a person acting at the direction of the principal; or
       (3) By an oral or any other expression of the intent to revoke the
agency in the presence of a witness 18 years of age or older who, within 30
days of the expression of such intent, signs and dates a writing confirming
that such expression of intent was made.
       (b) Unless the health care agency expressly provides otherwise, if,
after executing a health care agency, the principal marries, such marriage
shall revoke the designation of a person other than the principal´s spouse as
the principal´s agent to make health care decisions for the principal; and if,

                                      60
after executing a health care agency, the principal´s marriage is dissolved or
annulled, such dissolution or annulment shall revoke the principal´s former
spouse as the principal´s agent to make health care decisions for the
principal.
       (c) A health care agency which survives disability, incapacity, or
incompetency shall not be revoked solely by the appointment of a guardian
or receiver for the principal. Absent an order of the probate court or superior
court having jurisdiction directing a guardian of the person to exercise the
powers of the principal under a health care agency that survives disability,
incapacity, or incompetency, the guardian of the person has no power, duty,
or liability with respect to any health care matters covered by the agency;
provided, however, that no order usurping the authority of an agent known
to the proposed guardian shall be entered unless there is notice to said agent
by first class mail to the agent´s last known address and it is shown by clear
and convincing evidence that the agent is acting in a manner inconsistent
with the power of attorney.
       (d) A health care agency may be amended at any time by a written
amendment executed in accordance with the provisions of subsection (a) of
Code Section 31-36-5.
       (e) Any person, other than the agent, to whom a revocation or
amendment of a health care agency is communicated or delivered shall make
all reasonable efforts to inform the agent of that fact as promptly as possible.
       31-36-8. Each health care provider and each other person who acts in
good faith reliance on any direction or decision by the agent that is not
clearly contrary to the terms of a health care agency will be protected and
released to the same extent as though such person had dealt directly with the
principal as a fully competent person. Without limiting the generality of the
foregoing, the following specific provisions shall also govern, protect, and
validate the acts of the agent and each such health care provider and other
person acting in good faith reliance on such direction or decision:
       (1) No such provider or person shall be subject to any type of civil or
criminal liability or discipline for unprofessional conduct solely for
complying with any direction or decision by the agent, even if death or
injury to the patient ensues;
       (2) No such provider or person shall be subject to any type of civil or
criminal liability or discipline for unprofessional conduct solely for failure to
comply with any direction or decision by the agent, as long as such provider
or person promptly informs the agent of such provider´s or person´s refusal
or failure to comply with such direction or decision by the agent. The agent
shall then be responsible to make the necessary arrangements for the transfer

                                       61
of the patient to another health care provider. A health care provider who is
unwilling to comply with the agent’s decision will continue to afford
reasonably necessary consultation and care in connection with the pending
transfer;
        (3) If the actions of a health care provider or person who fails to
comply with any direction or decision by the agent are substantially in
accord with reasonable medical standards at the time of reference and the
provider cooperates in the transfer of the patient pursuant to paragraph (2) of
Code Section 31-36-7, the health care provider or person shall not be subject
to any type of civil or criminal liability or discipline for unprofessional
conduct for failure to comply with the agency;
        (4) No agent who, in good faith, acts with due care for the benefit of
the patient and in accordance with the terms of a health care agency, or who
fails to act, shall be subject to any type of civil or criminal liability for such
action or inaction;
        (5) If the authority granted by a health care agency is revoked under
Code Section 31-36-6, a person will not be subject to criminal prosecution or
civil liability for acting in good faith reliance upon such health care agency
unless such person had actual knowledge of the revocation; and
        (6) If the patient´s death results from withholding or withdrawing life-
sustaining or death-delaying treatment in accordance with the terms of a
health care agency, the death shall not constitute a suicide or homicide for
any purpose under any statute or other rule of law and shall not impair or
invalidate any insurance, annuity, or other type of contract that is
conditioned on the life or death of the patient, any term of the contract to the
contrary notwithstanding.
31-36-10.
        (a) The statutory health care power of attorney form contained in this
subsection may be used to grant an agent powers with respect to the
principal´s own health care; but the statutory health care power is not
intended to be exclusive or to cover delegation of a parent´s power to control
the health care of a minor child, and no provision of this chapter shall be
construed to bar use by the principal of any other or different form of power
of attorney for health care that complies with Code Section 31-36-5. If a
different form of power of attorney for health care is used, it may contain
any or all of the provisions set forth or referred to in the following form.
When a power of attorney in substantially the following form is used, and
notice substantially similar to that contained in the form below has been
provided to the patient, it shall have the same meaning and effect as
prescribed in this chapter. Substantially similar forms may include forms

                                       62
from other states. The statutory health care power may be included in or
combined with any other form of power of attorney governing property or
other matters:

GEORGIA STATUTORY SHORT FORM
DURABLE POWER OF ATTORNEY FOR HEALTH CARE

NOTICE: THE PURPOSE OF THIS POWER OF ATTORNEY IS TO
GIVE THE PERSON YOU DESIGNATE (YOUR AGENT) BROAD
POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU,
INCLUDING POWER TO REQUIRE, CONSENT TO, OR WITHDRAW
ANY TYPE OF PERSONAL CARE OR MEDICAL TREATMENT FOR
ANY PHYSICAL OR MENTAL CONDITION AND TO ADMIT YOU TO
OR DISCHARGE YOU FROM ANY HOSPITAL, HOME, OR OTHER
INSTITUTION; BUT NOT INCLUDING PSYCHOSURGERY,
STERILIZATION, OR INVOLUNTARY HOSPITALIZATION OR
TREATMENT COVERED BY TITLE 37 OF THE OFFICIAL CODE OF
GEORGIA ANNOTATED. THIS FORM DOES NOT IMPOSE A DUTY
ON YOUR AGENT TO EXERCISE GRANTED POWERS; BUT, WHEN
A POWER IS EXERCISED, YOUR AGENT WILL HAVE TO USE DUE
CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE WITH
THIS FORM. A COURT CAN TAKE AWAY THE POWERS OF YOUR
AGENT IF IT FINDS THE AGENT IS NOT ACTING PROPERLY. YOU
MAY NAME COAGENTS AND SUCCESSOR AGENTS UNDER THIS
FORM, BUT YOU MAY NOT NAME A HEALTH CARE PROVIDER
WHO MAY BE DIRECTLY OR INDIRECTLY INVOLVED IN
RENDERING HEALTH CARE TO YOU UNDER THIS POWER.
UNLESS YOU EXPRESSLY LIMIT THE DURATION OF THIS POWER
IN THE MANNER PROVIDED BELOW OR UNTIL YOU REVOKE
THIS POWER OR A COURT ACTING ON YOUR BEHALF
TERMINATES IT, YOUR AGENT MAY EXERCISE THE POWERS
GIVEN IN THIS POWER THROUGHOUT YOUR LIFETIME, EVEN
AFTER YOU BECOME DISABLED, INCAPACITATED, OR
INCOMPETENT. THE POWERS YOU GIVE YOUR AGENT, YOUR
RIGHT TO REVOKE THOSE POWERS, AND THE PENALTIES FOR
VIOLATING THE LAW ARE EXPLAINED MORE FULLY IN CODE
SECTIONS 31-36-6, 31-36-9, AND 31-36-10 OF THE GEORGIA
"DURABLE POWER OF ATTORNEY FOR HEALTH CARE ACT" OF
WHICH THIS FORM IS A PART (SEE THE BACK OF THIS FORM).
THAT ACT EXPRESSLY PERMITS THE USE OF ANY DIFFERENT

                                  63
FORM OF POWER OF ATTORNEY YOU MAY DESIRE. IF THERE IS
ANYTHING ABOUT THIS FORM THAT YOU DO NOT
UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO
YOU.

       DURABLE POWER OF ATTORNEY made this _____ day of
______________, ____.
       1. I, (insert name and address of principal) hereby appoint (insert
name and address of agent) as my attorney in fact (my agent) to act for me
and in my name in any way I could act in person to make any and all
decisions for me concerning my personal care, medical treatment,
hospitalization, and health care and to require, withhold, or withdraw any
type of medical treatment or procedure, even though my death may ensue.
My agent shall have the same access to my medical records that I have,
including the right to disclose the contents to others. My agent shall also
have full power to make a disposition of any part or all of my body for
medical purposes, authorize an autopsy of my body, and direct the
disposition of my remains.

THE ABOVE GRANT OF POWER IS INTENDED TO BE AS BROAD
AS POSSIBLE SO THAT YOUR AGENT WILL HAVE AUTHORITY TO
MAKE ANY DECISION YOU COULD MAKE TO OBTAIN OR
TERMINATE ANY TYPE OF HEALTH CARE, INCLUDING
WITHDRAWAL OF NOURISHMENT AND FLUIDS AND OTHER
LIFE-SUSTAINING OR DEATH-DELAYING MEASURES, IF YOUR
AGENT BELIEVES SUCH ACTION WOULD BE CONSISTENT WITH
YOUR INTENT AND DESIRES. IF YOU WISH TO LIMIT THE SCOPE
OF YOUR AGENT´S POWERS OR PRESCRIBE SPECIAL RULES TO
LIMIT THE POWER TO MAKE AN ANATOMICAL GIFT,
AUTHORIZE AUTOPSY, OR DISPOSE OF REMAINS, YOU MAY DO
SO IN THE FOLLOWING PARAGRAPHS.

       2. The powers granted above shall not include the following powers or
shall be subject to the following rules or limitations (here you may include
any specific limitations you deem appropriate, such as your own definition
of when life-sustaining or death-delaying measures should be withheld; a
direction to continue nourishment and fluids or other life-sustaining or
death-delaying treatment in all events; or instructions to refuse any specific
types of treatment that are inconsistent with your religious beliefs or


                                     64
unacceptable to you for any other reason, such as blood transfusion,
electroconvulsive therapy, or amputation):
_____________________________________________________________
_________
_______________________________________________
THE SUBJECT OF LIFE-SUSTAINING OR DEATH-DELAYING
TREATMENT IS OF PARTICULAR IMPORTANCE. FOR YOUR
CONVENIENCE IN DEALING WITH THAT SUBJECT, SOME
GENERAL STATEMENTS CONCERNING THE WITHHOLDING OR
REMOVAL OF LIFE-SUSTAINING OR DEATH-DELAYING
TREATMENT ARE SET FORTH BELOW. IF YOU AGREE WITH ONE
OF THESE STATEMENTS, YOU MAY INITIAL THAT STATEMENT,
BUT DO NOT INITIAL MORE THAN ONE:

       I do not want my life to be prolonged nor do I want life-sustaining or
death-delaying treatment to be provided or continued if my agent believes
the burdens of the treatment outweigh the expected benefits. I want my agent
to consider the relief of suffering, the expense involved, and the quality as
well as the possible extension of my life in making decisions concerning
life-sustaining or death-delaying treatment.

Initialed ______

       I want my life to be prolonged and I want life-sustaining or death-
delaying treatment to be provided or continued unless I am in a coma,
including a persistent vegetative state, which my attending physician
believes to be irreversible, in accordance with reasonable medical standards
at the time of reference. If and when I have suffered such an irreversible
coma, I want life-sustaining or death-delaying treatment to be withheld or
discontinued.

Initialed ______
        I want my life to be prolonged to the greatest extent possible without
regard to my condition, the chances I have for recovery, or the cost of the
procedures.

Initialed ______

THIS POWER OF ATTORNEY MAY BE AMENDED OR REVOKED BY
YOU AT ANY TIME AND IN ANY MANNER WHILE YOU ARE ABLE

                                     65
TO DO SO. IN THE ABSENCE OF AN AMENDMENT OR
REVOCATION, THE AUTHORITY GRANTED IN THIS POWER OF
ATTORNEY WILL BECOME EFFECTIVE AT THE TIME THIS POWER
IS SIGNED AND WILL CONTINUE UNTIL YOUR DEATH AND WILL
CONTINUE BEYOND YOUR DEATH IF ANATOMICAL GIFT,
AUTOPSY, OR DISPOSITION OF REMAINS IS AUTHORIZED,
UNLESS A LIMITATION ON THE BEGINNING DATE OR DURATION
IS MADE BY INITIALING AND COMPLETING EITHER OR BOTH OF
THE FOLLOWING:

       3. ( ) This power of attorney shall become effective on
________________________ (insert a future date or event during your
lifetime, such as court determination of your disability, incapacity, or
incompetency, when you want this power to first take effect).
       4. ( ) This power of attorney shall terminate on
_______________________ (insert a future date or event, such as court
determination of your disability, incapacity, or incompetency, when you
want this power to terminate prior to your death).

IF YOU WISH TO NAME SUCCESSOR AGENTS, INSERT THE
NAMES AND ADDRESSES OF SUCH SUCCESSORS IN THE
FOLLOWING PARAGRAPH:

      5. If any agent named by me shall die, become legally disabled,
incapacitated, or incompetent, or resign, refuse to act, or be unavailable, I
name the following (each to act successively in the order named) as
successors to such agent:
_____________________________________________________________
______
_____________________________________________________________
______
IF YOU WISH TO NAME A GUARDIAN OF YOUR PERSON IN THE
EVENT A COURT DECIDES THAT ONE SHOULD BE APPOINTED,
YOU MAY, BUT ARE NOT REQUIRED TO, DO SO BY INSERTING
THE NAME OF SUCH GUARDIAN IN THE FOLLOWING
PARAGRAPH. THE COURT WILL APPOINT THE PERSON
NOMINATED BY YOU IF THE COURT FINDS THAT SUCH
APPOINTMENT WILL SERVE YOUR BEST INTERESTS AND
WELFARE. YOU MAY, BUT ARE NOT REQUIRED TO, NOMINATE


                                     66
AS YOUR GUARDIAN THE SAME PERSON NAMED IN THIS FORM
AS YOUR AGENT.
       6. If a guardian of my person is to be appointed, I nominate the
following to serve as such guardian:
(insert name and address of nominated guardian of the person)
       7. I am fully informed as to all the contents of this form and
understand the full import of this grant of powers to my agent.

      Signed _______________________
      (Principal)
      he principal has had an opportunity to read the above form and has
signed the above form in our presence. We, the undersigned, each being over
18 years of age, witness the principal´s signature at the request and in the
presence of the principal, and in the presence of each other, on the day and
year above set out.

Witnesses: Addresses:
______________________ _________________________
_________________________
______________________ _________________________
_________________________
       Additional witness required when health care agency is signed in a
hospital or skilled nursing facility.
       I hereby witness this health care agency and attest that I believe the
principal to be of sound mind and to have made this health care agency
willingly and voluntarily.

Witness:_______________________
Attending Physician
Address:_______________________
_______________________
YOU MAY, BUT ARE NOT REQUIRED TO, REQUEST YOUR AGENT
AND SUCCESSOR AGENTS TO PROVIDE SPECIMEN SIGNATURES
BELOW. IF YOU INCLUDE SPECIMEN SIGNATURES IN THIS
POWER OF ATTORNEY, YOU MUST COMPLETE THE
CERTIFICATION OPPOSITE THE SIGNATURES OF THE AGENTS.

I certify that the specimen signatures of my agent and is correct and the
specimen signatures of my successors are correct
________________________ ________________________

                                     67
(Agent) (Principal)
________________________ ________________________
(Successor agent) (Principal)
________________________ ________________________
(Successor agent) (Principal)'

       (b) The foregoing statutory health care power of attorney form
authorizes, and any different form of health care agency may authorize, the
agent to make any and all health care decisions on behalf of the principal
which the principal could make if present and under no disability,
incapacity, or incompetency, subject to any limitations on the granted
powers that appear on the face of the form, to be exercised in such manner
as the agent deems consistent with the intent and desires of the principal.
The agent will be under no duty to exercise granted powers or to assume
control of or responsibility for the principal´s health care; but, when granted
powers are exercised, the agent will be required to use due care to act for the
benefit of the principal in accordance with the terms of the statutory health
care power and will be liable for negligent exercise. The agent may act in
person or through others reasonably employed by the agent for that purpose
but may not delegate authority to make health care decisions. The agent may
sign and deliver all instruments, negotiate and enter into all agreements, and
do all other acts reasonably necessary to implement the exercise of the
powers granted to the agent. Without limiting the generality of the
foregoing, the statutory health care power form shall, and any different form
of health care agency may, include the following powers, subject to any
limitations appearing on the face of the form:
       (1) The agent is authorized to consent to and authorize or refuse, or to
withhold or withdraw consent to, any and all types of medical care,
treatment, or procedures relating to the physical or mental health of the
principal, including any medication program, surgical procedures, life-
sustaining or death-delaying treatment, or provision of nourishment and
fluids for the principal, but not including psychosurgery, sterilization, or
involuntary hospitalization or treatment covered by Title 37;
       (2) The agent is authorized to admit the principal to or discharge the
principal from any and all types of hospitals, institutions, homes, residential
or nursing facilities, treatment centers, and other health care institutions
providing personal care or treatment for any type of physical or mental
condition, but not including psychosurgery, sterilization, or involuntary
hospitalization or treatment covered by Title 37;


                                      68
       (3) The agent is authorized to contract for any and all types of health
care services and facilities in the name of and on behalf of the principal and
to bind the principal to pay for all such services and facilities, and the agent
shall not be personally liable for any services or care contracted for on
behalf of the principal;
       (4) At the principal´s expense and subject to reasonable rules of the
health care provider to prevent disruption of the principal´s health care, the
agent shall have the same right the principal has to examine and copy and
consent to disclosure of all the principal´s medical records that the agent
deems relevant to the exercise of the agent´s powers, whether the records
relate to mental health or any other medical condition and whether they are
in the possession of or maintained by any physician, psychiatrist,
psychologist, therapist, hospital, nursing home, or other health care provider,
notwithstanding the provisions of any statute or other rule of law to the
contrary; and
       (5) The agent is authorized to direct that an autopsy of the principal´s
body be made; to make a disposition of any part or all of the principal´s
body pursuant to Article 6 of Chapter 5 of Title 44, the 'Georgia Anatomical
Gift Act,' as now or hereafter amended; and to direct the disposition of the
principal´s remains.

Note: The power to dispose of the body of the decedent is incorporated into
the health care proxy.


HAWAII        No case law or relevant statute was found.


IDAHO

Case Law           There appears to be no relevant case law.

Statutory Law
TITLE 54
PROFESSIONS, VOCATIONS, AND BUSINESSES
CHAPTER 11
MORTICIANS, FUNERAL DIRECTORS AND EMBALMERS


                                      69
       54-1139. INSTRUCTIONS FOR DISPOSITION OF PERSON'S
REMAINS. A. A person may provide written instructions as part of a
prearranged funeral plan for disposition of the person's remains by any
lawful means. The person shall execute the prearranged funeral plan,
containing the instructions, as provided in section 54-1133, Idaho Code.
       B. As used in this section, "prearranged funeral plan" means a plan:
       (1) For the final disposition of a person's remains; and
       (2) That has been funded in advance of the death of the person
leaving instructions for the disposition of that person's remains.
       C. A person, as part of a prearranged funeral plan, shall have the
authority to sign all necessary or required forms, authorizations or
agreements pertaining to the disposition of his remains including, but not
limited to, a cremation authorization form.
       D. A person, as part of a prearranged funeral plan, may designate a
person to make decisions regarding any substitutions under section 54-1137,
Idaho Code.
       54-1140.     PERSON'S DIRECTIONS TO BE FOLLOWED --
EXCEPTION.          Unless a compelling public interest makes it impossible
to comply with a person's direction as provided in section 54-1139, Idaho
Code, the remains of a person must be disposed of as instructed in such
instrument.
       54-1141. SURVIVOR'S SERVICES. The provisions of section 54-
1140, Idaho Code, shall not prevent the deceased person's survivors from, at
their own expense, pursuing meaningful services and making arrangements
for funeral services that do not conflict with the deceased's instructions for
disposition.
       54-1142.     AUTHORITY IN ABSENCE OF PREARRANGED
FUNERAL PLAN.
       (1) If the decedent has not made a prearranged funeral plan as set
forth in section 54-1139, Idaho Code, the right to control the disposition of
the remains of a deceased person vests in, and devolves upon the following
in the order named:
        (a) The person designated in a written document executed by the
decedent and acknowledged in the same manner as required for instruments
conveying real property, and subject to such limitations, restrictions, or
directions, as may be set forth in such document;
       (b) The person designated as agent under a durable power of attorney
for health care executed by the decedent, unless such durable power of
attorney for health care contains express and clear language denying such
right;

                                     70
       (c) The person designated in a durable power of attorney executed by
the decedent, if such power of attorney contains express and clear language
granting such right to the agent named in such power of attorney;
       (d) The competent surviving spouse of the decedent;
       (e) A majority of the competent surviving adult children of the
decedent, provided that less than one-half (1/2) of the competent surviving
adult children shall be vested with the right to control the disposition of the
remains of the decedent if they have used reasonable efforts to notify all
other competent surviving adult children of their instructions to dispose of
the decedent's remains and are not aware of any opposition to those
instructions on the part of more than one-half (1/2) of all competent
surviving adult children;
       (f) The competent surviving parents or parent of the decedent,
provided that if one (1) of the competent surviving parents is absent, the
remaining competent surviving parent shall be vested with the right to
control the disposition of the remains of the decedent after reasonable efforts
have been made and are unsuccessful in locating the absent competent
surviving parent;
        (g) The person appointed by a court of competent jurisdiction as the
personal representative or administrator of the estate of the decedent;
       (h) The person nominated as the personal representative of the estate
of the decedent in the will of the decedent;
       (i) The competent adult person or persons entitled to inherit from the
decedent under the intestate succession laws of the state of Idaho,
respectively in the next degree of kinship, provided that if there is more than
one (1) competent surviving adult person of the same degree of kinship, the
majority of those persons, and provided further that less than the majority of
competent surviving adult persons of the same degree of kinship shall be
vested with the right to control the disposition of the remains of the
decedent if those persons have used reasonable efforts to notify all other
competent surviving adult persons of the same degree of kinship of their
instructions to dispose of the decedent's remains and are not aware of any
opposition to those instructions on the part of one-half (1/2) or more of all
competent surviving adult persons of the same degree of kinship.
        (2) If any person to whom the right of control has vested pursuant to
the foregoing has been charged with first or second degree murder or
voluntary manslaughter in connection with the decedent's death, and those
charges are known to the funeral director or cemetery authority, the right of
control is relinquished and passed on to the next qualifying person as listed
above as if the charged person did not exist; provided however, that if the

                                      71
charges against such person are dropped, or if such person is acquitted of the
charges, the right of control is returned to the person.
       (3) For purposes of this section:
        (a) "Adult" means an individual who is eighteen (18) years of age or
older;
       (b) "Child" means a natural or adopted child of the decedent;
       (c) "Competent" means the individual has not been declared
incompetent by a court of law, or who has been declared competent by a
court of law after a prior declaration of incompetence;
       (d) "Durable power of attorney" means a power of attorney described
in section 15-5-501, Idaho Code, or any similar document properly executed
under the laws of another jurisdiction; and
        (e) "Durable power of attorney for health care" means the document
described in chapter 45, title 39, Idaho Code, or any similar document
properly executed under the laws of another jurisdiction;
       (f) "Will" means any testamentary device which is valid under the
Idaho probate code, including, but not limited to, sections 15-2-503, 15-2-
504 and 15-2-506, Idaho Code, whether or not originally executed in, or
under the laws of, the state of Idaho.
       (4) (a) A cemetery authority or licensed funeral director or a licensed
hospital or its authorized personnel may permit or assist in, and a physician
may perform, an autopsy of any remains of a decedent in its custody:
      (i) If the decedent, prior to his death, authorizes an autopsy in his will
or in another written instrument, including, but not limited to, a durable
power of attorney for health care; or
      (ii) Upon the receipt of a written authorization signed by, telegrammed
from, or received by facsimile transmission from, a person representing
himself to be the person who is entitled under this section to control the
disposition of the remains of the decedent, or to be a coroner or any other
duly authorized public officer; or
      (iii) Upon the receipt of an oral authorization obtained by telephone,
and recorded on tape or other recording device, from a person representing
himself to be the person who is entitled under this section to control the
disposition of the remains of the decedent, or to be a coroner or any other
duly authorized public officer.
       (b) A cemetery authority or a licensed funeral director of a licensed
hospital or its authorized personnel is not liable for permitting or assisting,
and a physician is not liable for performing, an autopsy pursuant to the
authorization provided in paragraph (a) of this subsection unless he has
actual notice that such representation is untrue at the time the autopsy is

                                      72
performed. If such authorization is contained in a will, the autopsy may be
performed regardless of the validity of the will in other respects and
regardless of whether the will may not be offered for, or admitted to, probate
until a later date.
       (c) This subsection shall not authorize the obtaining of an oral
authorization by telephone, recorded on tape or other recording device, for
the autopsy of a deceased person if it is made known to the physician who is
to perform the autopsy that the deceased person was, at the time of his death,
a member of a religion or group which opposes autopsies.
       54-1143. RIGHT TO RELY. (1) Any person signing a funeral service
agreement or cremation authorization form or any other authorization for
disposition, whether part of a prearranged funeral plan or at time of death,
shall be deemed to warrant the truthfulness of any facts set forth therein,
including the identity of the deceased whose remains are sought to be buried
or cremated and the signer's authority to order such disposition.
       (2) A funeral establishment, cemetery or crematory establishment
shall have the right to rely on such authorization and shall have authority to
dispose of human remains upon the receipt of an authorization form signed
by the decedent or by the person having the right to control disposition as set
forth in section 54-1142, Idaho Code. There shall be no liability of a funeral
establishment, cemetery or crematory establishment that disposes of human
remains pursuant to such authorization, or that releases or disposes of the
remains pursuant to such authorization.

Note: The statute mentions the prepaid funeral arrangement. This is
showing up in many statutes, and there is usually language protecting the
funeral establishment from cancellation or amendment of the arrangement,
post-death.


ILLINOIS

Case Law                  There appears to be no relevant case law.

Statutory Law
94TH GENERAL ASSEMBLY State of Illinois 2005 and 2006
LRB094 09123 LCB 39353



                                      73
       1. An act concerning remains.
       2. Be it enacted by the People of the state of Illinois represented in
the General Assembly:
       Section 1. Short title. This act may be cited as the Disposition of
Remains Act.
       Section 5. Right to control disposition; priority. Unless a decedent
has left directions in writing for the disposition of the decedent’s remains as
provided in Section 86 of the Crematory Regulation Act or in subsection (a)
of Section 40 of this Act, the following persons, in the priority listed, have
the right to control the disposition, including cremation of the decedent’s
remains and are liable for the reasonable costs of the disposition.
       (1) The person designated in a written instrument that satisfied the
provisions of Sections 10 and 15 of this Act.
       (2) The decedent’s surviving spouse,
       (3) Any person serving as executor or legal representative of the
decedent’s estate and acting according to the decedent’s written instructions;
       (4) The sole surviving competent adult child of the decedent, or if
there is more than one surviving competent adult child of the decedent, the
majority of the surviving competent adult children; however, less than one-
half of the surviving adult children shall be vested with the rights and duties
of this Section if they have used reasonable efforts to notify all other
surviving competent adult children of their instructions and are not aware of
any opposition to those instructions on the part of more than one-half of all
surviving competent adult children;
The surviving competent parents of the decedent; if one of the surviving
competent parents is absent, the remaining competent parent shall be vested
with the rights and duties of this act after reasonable efforts have been
unsuccessful in locating the absent surviving competent parent;
The surviving competent adult person or persons respectively in the next
degrees of kindred or, if there is more than one surviving competent adult
person of the same degree of kindred, the majority of those persons; less
than the majority of surviving competent adult persons of the same degree of
kindred shall be vested with the right as duties of this Act if those persons
have used reasonable efforts to notify all other surviving competent adult
persons of the same degree of kindred of their instructions and are not aware
of any opposition to those instructions in the part of one-half or more of all
surviving competent adult persons of the same degree of kindred;
In the case of indigents or any other individuals whose final disposition is
the responsibility of the state or any of its instrumentalities, a public
administrator, medical examiner, coroner, State appointed guardian, or any

                                      74
other public official charged with arranging the final disposition of the
decedent;
In the case of individuals who have donated their bodies to science, or
whose death occurred in a nursing home or other private institution, who
have executed cremation authorization forms under Section 65 of the
Crematory Regulation Act and the institution is charged with making
arrangements for the final disposition of the decedent, a representative of the
institution; or any other person or organization that is willing to assume legal
and financial responsibility. As used in this Section, “adult” means any
individual who has reached is or her eighteenth birthday.

      Section 10. Form. The written instrument authorizing the disposition
of remains shall be in substantially the following form:

APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF
REMAINS

       I, _____ 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) and with respect to that subject
only, I hereby appoint such person as my agent (attorney-in-fact). All
decisions made by my agent with respect to the disposition of my remains,
including cremation, shall be binding.

       SPECIAL DIRECTIONS: Set forth below are any special directions
limiting the power granted to my agent:

      _____________________________________________

AGENT: Name: ____________ Telephone Number: _____________
Signature of Agent: _____________ Date of Signature: ______________

       SUCCESSORS: If my agent dies, becomes legally disabled, resigns,
or refused to act, I hereby appoint the following persons (each to act alone
and successively, in the order named) to serve as my agent (attorney-in-fact)
to control the disposition of my remains as authorized by his document.

      First Successor
      Name: _______________


                                      75
      Address: _______________ Telephone Number ___________
Signature indicating Acceptance of Appointment ____________ Date of
Signature __________________

Second Successor
      Name: _______________
      Address: _______________ Telephone Number ___________
Signature indicating Acceptance of Appointment ____________ Date of
Signature __________________

       DURATION: This appointment becomes effective upon my death.
       PRIOR APPOINTMENTS REVOKED: I hereby revoke any prior
appointment of any person to control the disposition of my remains.
       RELIANCE: I hereby agree that any cemetery organization, business
operating a crematory or columbarium or both, funeral director or embalmer,
or funeral establishment who receives a copy of this document may act
under it. Any modification or revocation of this document is not effective as
to any such party until that party receives actual notice of the modification or
revocation. No such party shall be liable because of reliance on a copy of
this document.
       ASSUMPTION: THE AGENT, AND EACH SUCCESSOR AGENT,
BY ACCEPTING THIS APPOINTMENT, AGREES TO AND ASSUMES
THE OBLIGATIONS PROVIDED HEREIN.
       Signed this ______ day of _________.

      STATE OF _________ COUNTY OF ___________

      BEFORE ME, the undersigned, a Notary public, on this day
personally appeared ________, provide to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he/she executed the same for the
purposes and consideration therein expressed.
      GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______
day of _________ ______.
      Printed Name: ______________ Notary Public, State of _________
      My Commission Expires: __________

      Section 15. Requirements for written instrument. A written
instrument is legally sufficient under Section 5 if the wording of the
instrument complies substantially with Section 10, the instrument is properly

                                      76
completed, the instrument is signed by the decedent, the agent, and each
successor agent, and the signature of the decedent is notarized. The written
instrument may be modified or revoked only by a subsequent written
instrument that complies with this Section.

       Section 20. Duties of authorized agent.
       (a) A person listed in Section 5 has the right, duty, and liability
provided by that Section only if there is no person in a priority listed before
the person.
       (b) If any person who would otherwise have the right to control
disposition pursuant to Section 5 has been charged with first or second
degree murder or voluntary manslaughter in connection with the decedent’s
death and those charges are known to the funeral director or cemetery
authority, that person’s right to control is relinquished and passed on to the
next listed person or group of persons in accordance with Section 5.

       Section 25. Body parts. In the case of body parts, a representative of
the institution that has arranged with a funeral home, cemetery, or crematory
authority to cremate or make other appropriate disposition of the body parts
may serve as the authorizing agent.

       Section 30. Prohibition of cremation; written instructions. No person
shall be allowed to authorize cremation when a decedent has left written
instructions that he or she does not wish to be cremated.

      Section 35. Misrepresentation; liability. A person who represents that
he or she knows the identity of a decedent, and, in order to procure the
disposition, including cremation, of the decedent’s remains, signs an order or
statement, other than a death certificate, warrants the identity of the decedent
and is liable for all damages that result, directly or indirectly, from that
warrant.

       Section 40. Directions by decedent. (a) A person may provide
written directions for the disposition, including cremation, of the person’s
remains in a will, a prepaid funeral, burial or cremation contract, or in a
written instrument signed by the person and notarized. The directions may
be modified or revoked only by a subsequent writing signed by the person
and notarized. The person otherwise entitled to control the disposition of a
decedent’s remains under this Act shall faithfully carry out the directions of
the decedent to the extent that the decedent’s estate or the person controlling

                                      77
the disposition are financially able to do so. (b) If the directions are in a
will, they shall be carried out immediately without the necessity of probate.
If the will is not probated or is declared invalid for testamentary purposes,
the directions are valid to the extent to which they have been acted on in
good faith.

       Section 45. Liability. A cemetery organization, a business operating
a crematory or columbarium or both, a funeral director or an embalmer, or a
funeral establishment shall not be liable for carrying out the written
directions of a decedent or the directions of any person who represents that
the person is entitled to control the disposition of the decedent’s remains.

       Section 50. Disputes. Any dispute among any of the persons listed in
Section 5 concerning their right to control the disposition, including
cremation, of a decedent’s remains shall be resolved by a court of competent
jurisdiction. A cemetery organization or funeral establishment shall not be
liable for refusing to accept the decedent’s remains, or to inter or otherwise
dispose of the decedent’s remains, until it receives a court order or other
suitable confirmation that the dispute has been resolved or settled.


INDIANA

Case Law
       In Hickey et al v Hickey, 298 N.E. 2d 29, 1973 the Court of Appeals
of Indiana stated: “Several Indiana cases, although not involving
disinterment, have stated that there is a limited property right in the bodies
of the dead belonging to the surviving relative in the order of inheritance.”

Statutory Law
      Indiana Code 25-15-9-18 Priority of persons determining final
disposition and interment of human remains




                                     78
   Sec. 18. The following persons, in the order of priority indicated, have
the authority to designate the manner, type, and selection of the final
disposition and interment of human remains:
     (1) The decedent's surviving spouse.
     (2) The decedent's surviving adult child or children. However, if the
children cannot agree on the manner of final disposition, the personal
representative of the decedent's estate.
     (3) The decedent's surviving parents.
     (4) The personal representative of the decedent's estate.

        IC 30-5-5-16 Health care powers; religious tenets
Sec. 16. (a) This section does not prohibit an individual capable of
consenting to the individual’s own health care or to the healt h care of
another from consenting to health care administered in good faith under the
religious tenets and practices of the individual requiring health care.
          (b) Language conferring general authority with respect to health
care powers means the principal authorizes the attorney in fact to do the
following:
              (1) Employ or contract with servants, companions, or health
care providers to care for the principal.
              (2) If the attorney in fact is an individual, consent to or refuse
health care for the principal who is an individual in accordance with IC-16-
36-1 by properly executing and attaching to the power of attorney a
declaration or appointment, or both.
              (3) Admit or release the principal from a hospital or health care
facility.
              (4) Have access to records, including medical records,
concerning the principal’s condition.
              (5) Make anatomical gifts on the principal’s behalf.
              (6) Request an autopsy.
              (7) Make plans for the disposition of the principal’s body.

Note:        Indiana has a very broad durable power of attorney statute.
Indiana Code 30-5-5-6 permits there to be included in the durable power of
attorney health care powers as well as the power to make plans for the
disposition of the principal’s body. There is presently no case law on the
interaction between the power held by the attorney-in-fact and the powers
granted to the spouse and next of kin.




                                      79
IOWA

Case Law                  There appears to be no relevant case law.

Statutory Law
Iowa Code, Chapter 100, Section 645-100
"Authorized person" means that person or persons upon whom a funeral
director may reasonably rely when making funeral arrangements including,
but not limited to, embalming, cremation, funeral services, and the
disposition of human remains. In the absence of a contrary court order, a
funeral director may reasonably rely upon any available member of the
following classes of persons, in the order of priority listed:
1. The spouse of the decedent if not legally separated from the decedent.
2. The decedent's surviving adult children. If there is more than one adult
child, any adult child who can confirm in writing the notification of all other
adult children may serve as the authorizing agent, unless the funeral director
or crematory authority receives any objection from another adult child.
Alternatively, a majority of the surviving adult children of the decedent
whose whereabouts are reasonably ascertainable.
3.      The surviving parents of the decedent whose whereabouts are
reasonably ascertainable.
4. The decedent's surviving adult grandchildren. If there is more than one
adult grandchild, any adult grandchild who can confirm in writing the
notification of all other adult grandchildren may serve as the authorizing
agent, unless the funeral director or crematory authority receives any
objection from another adult grandchild. Alternatively, a majority of the
surviving adult grandchildren of the decedent whose whereabouts are
reasonably ascertainable.
5. An adult sibling of the decedent. If there is more than one adult sibling,
any adult sibling who can confirm in writing the notification of all other
adult siblings may serve as the authorizing agent, unless the funeral director
or crematory authority receives any objection from another adult sibling.
Alternatively, a majority of the surviving adult siblings of the decedent
whose whereabouts are reasonably ascertainable.
6. A grandparent of the decedent. If there is more than one grandparent,
any grandparent who can confirm in writing the notification of all other

                                      80
grandparents may serve as the authorizing agent, unless the funeral director
or crematory authority receives any objection from another grandparent.
Alternatively, a majority of the surviving grandparents of the decedent
whose whereabouts are reasonably ascertainable.
7. Other adult person in the next degree of kinship in the order named by
law to inherit the estate of the decedent under the rules of inheritance for
intestate succession.
8. The county medical examiner, if responsible for the decedent's remains.
A funeral director may await court order before finalizing the funeral
arrangements if the funeral director is aware of a dispute between the
authorized person or persons who would be in a priority position under the
definition of "authorized person" in this rule and the executor named in the
decedent's will or a personal representative appointed by a court, or is aware
of a dispute among authorized persons within the same priority
classification.100.10(3)

Authorizing person and preneed cremation arrangements. The authorized
person has legal authority and may make decisions regarding the final
disposition of the decedent. If the decedent in the decedent's lifetime
requested that the decedent's body be cremated by signing a cremation
authorization, the authorized person at the time of death may revoke the
cremation authorization to cancel the cremation.100.10(4)

Authorization to cremate . The crematory shall have the authority to cremate
human remains upon the receipt of the following:             1. Cremation
authorization form signed by the authorizing person.          2. Permit for
cremation from a medical examiner. 3. Any other documentation required
by this state.

       a. A cremation authorization form shall contain the following: (1)
The name, address, age and gender of the decedent whose human remains
are to be cremated. (2) The date, time of death and the cause of death of the
human remains. (3) If applicable, the name and license number of the
funeral establishment and funeral director who obtained the cremation
authorization form signed by the authorizing person. (4) If applicable, the
signature of the funeral director. (5) The name and address of the crematory
authorized to cremate the human remains. (6) The name and signature of
the authorizing person granting permission to cremate the human remains
and the authorizing person's relationship to the decedent.            (7) A
representation that the authorizing person has the right to authorize the

                                     81
cremation of the decedent in accordance with this chapter. (8) A
representation that in the event there is another person who has superior
priority right to that of the authorizing person, the authorizing person has
made all reasonable efforts to contact that person and has no reason to
believe that the person would object to the cremation of the decedent.

b.     If the authorizing person is not available to execute the cremation
authorization form in person, the authorizing person may execute the
authorization form in writing, facsimile transmission, or telegram.

c.    The authorizing person may revoke the authorization and instruct the
crematory to cancel the cremation. The crematory shall honor any
instructions given to it by an authorizing person under this rule if it receives
instructions prior to beginning the cremation.

100.10(6) Disposition of cremated remains. If responsible, the funeral
director shall supervise the final disposition of the cremated remains as
follows:

a.      Cremated remains may be disposed of by placing them in a grave,
crypt, or niche; by scattering them in a scattering area as defined in these
rules; or they may remain in the personal care and custody of the authorized
person. In the event that the cremated remains are placed in a grave, crypt,
niche or scattered in a scattering area, it is the responsibility of the
authorized person or the authorized person's designee to forward the burial
transit permit to the state or the funeral director who arranged the cremation
services so the death certificate can be amended and accurately reflect the
place of final disposition. After supervising the transfer of cremated remains
to the authorized person or place of final disposition, the funeral director
shall be discharged.

Note: The statute suggests that the decedent may sign a cremation
authorization form – no similar provision exists in the case of a body
interment. It is interesting that the statute provides that an “authorized
person” may cancel the authorization signed by the decedent. The term
“authorized person” or “authorizing person” appears often in statutes that are
aimed at protecting the funeral establishment from liability.




                                      82
KANSAS

Case Law                   There appears to be no relevant case law.

Statutory Law
65-1734
Chapter 65.--PUBLIC HEALTH
Article 17.--REGULATION OF EMBALMERS                       AND     FUNERAL
DIRECTORS; FUNERAL ESTABLISHMENTS

        65-1734. Order of priority of persons authorized to dispose of
decedents' remains; immunity of funeral directors, funeral establishments
and crematories. (a)      The following persons, in order of priority stated,
may order any lawful manner of final disposition of a decedent's remains
including burial, cremation, entombment or anatomical donation:
       (1) The agent for health care decisions established by a durable
power of attorney for health care decisions pursuant to K.S.A. 58-625, et
seq., and amendments thereto, if such power of attorney conveys to the agent
the authority to make decisions concerning disposition of the decedent's
remains;
       (2) the spouse of the decedent;
        (3) the decedent's surviving adult children. If there is more than one
adult child, any adult child who confirms in writing the notification of all
other adult children, may direct the manner of disposition unless the funeral
establishment or crematory authority receives written objection to the
manner of disposition from another adult child;
        (4) the decedent's surviving parents;
        (5) the persons in the next degree of kinship under the laws of
descent and distribution to inherit the estate of the decedent. If there is more
than one person of the same degree, any person of that degree may direct the
manner of disposition;
        (6) a guardian of the person of the decedent at the time of such
person's death;
       (7) the personal representative of the decedent; or
       (8) in the case of indigents or any other individuals whose final
disposition is the responsibility of the state or county, the public official

                                      83
charged with arranging the final disposition pursuant to K.S.A. 2002 Supp.
22a-215 and amendments thereto.
        (b) A funeral director, funeral establishment or crematory shall not
be subject to criminal prosecution or civil liability for carrying out the
otherwise lawful instructions of the person or persons under subsection (a) if
the funeral director reasonably believes such person is entitled to control
final disposition..

58-629
Chapter 58.--PERSONAL AND REAL PROPERTY
Article 6.--POWERS AND LETTERS OF ATTORNEY
        58-629. Same; authority of agent; limitations on agent's power;
 persons not to be designated as agents; witnesses and acknowledgment;
 effect of death of principal.
       (a) A durable power of attorney for health care decisions may
 convey to the agent the authority to:
        (1) Consent, refuse consent, or withdraw consent to any care,
 treatment, service or procedure to maintain, diagnose or treat a physical
 or mental condition, and to make decisions about organ donation,
 autopsy, and disposition of the body;
         (2) make all necessary arrangements for the principal at any
 hospital, psychiatric hospital or psychiatric treatment facility, hospice,
 nursing home or similar institution; to employ or discharge health care
 personnel to include physicians, psychiatrists, psychologists, dentists,
 nurses, therapists or any other person who is licensed, certified, or
 otherwise authorized or permitted by the laws of this state to administer
 health care as the agent shall deem necessary for the physical, mental and
 emotional well being of the principal; and
      (3) request, receive and review any information, verbal or written,
 regarding the principal's personal affairs or physical or mental health
 including medical and hospital records and to execute any releases of
 other documents that may be required in order to obtain such
 information.
        (b) The powers of the agent herein shall be limited to the extent set
 out in writing in the durable power of attorney for health care decisions,
 and shall not include the power to revoke or invalidate a previously
 existing declaration by the principal in accordance with the natural death
 act. No agent powers conveyed pursuant to this section shall be effective
 until the occurrence of the principal's impairment as determined by the
 principal's attending physician, as defined in subsection (a) of K.S.A. 65-

                                      84
28,102 and amendments thereto, unless the durable power of attorney for
health care decisions specifically provides otherwise. Nothing in this act
shall be construed as prohibiting an agent from providing treatment by
spiritual means through prayer alone and care consistent therewith, in
lieu of medical care and treatment, in accordance with the tenets and
practices of any church or religious denomination of which the principal
is a member.
       (c) In exercising the authority under the durable power of attorney
for health care decisions, the agent has a duty to act consistent with the
expressed desires of the principal.
         (d) Neither the treating health care provider, as defined by
subsection (c) of K.S.A. 65-4921 and amendments thereto, nor an
employee of the treating health care provider, nor an employee, owner,
director or officer of a facility described [in] subsection (a)(2) in K.S.A.
58-629 may be designated as the agent to make health care decisions
under a durable power of attorney for health care decisions unless:
     (1) Related to the principal by blood, marriage or adoption; or
      (2) the principal and agent are members of the same community of
persons who are bound by vows to a religious life and who conduct or
assist in the conduct of religious services and actually and regularly
engage in religious, benevolent, charitable or educational ministrations
or the performance of health care services.
     (e) A durable power of attorney for health care decisions shall be:
       (1) Dated and signed in the presence of two witnesses at least 18
years of age neither of whom shall be the agent, related to the principal
by blood, marriage or adoption, entitled to any portion of the estate of the
principal according to the laws of intestate succession of this state or
under any will of the principal or codicil thereto, or directly financially
responsible for the principal's health care; or
     (2) acknowledged before a notary public.
      (f) Death of the principal shall not prohibit or invalidate acts of the
agent in arranging for organ donation, autopsy or disposition of body.
       (g) Any person who in good faith acts pursuant to the terms of a
durable power of attorney for health care decisions without knowledge of
its invalidity shall be immune from liability that may be incurred or
imposed from such action.




                                     85
KENTUCKY

Case Law                  There appears to be no relevant case law.

Statutory Law
367.97501 Definitions for KRS 367.97501 to 367.97537.
As used in KRS 367.97501 to 367.97537, unless the context requires
otherwise:
(1) "Authorizing agent" means the person legally entitled to order the
cremation of the human remains. The right to control the disposition of the
remains of a deceased person, unless other directions have been given by the
decedent, vests in, and the duty of disposition devolves upon the following
in the order named:
(a) The decedent through a preneed cremation authorization;
(b) The surviving spouse of the decedent;
(c) The surviving adult children of the decedent;
(d) The surviving parents of the decedent;
(e) The surviving adult grandchildren of the decedent;
(f) The surviving adult siblings of the decedent;
(g) A next closest adult relative of the decedent; or
(h) In the absence of any of the above, by order of District Court.

367.97527 Preneed cremation authorization form -- Procedure in event of
conflict.
      (1) A person, or anyone who has legal authority to act on behalf of that
person, may authorize his or her own cremation and the final disposition of
his or her cremated remains, by executing, as the authorizing agent, a
preneed cremation authorization form. The original preneed cremation
authorization form shall be retained by the entity with which the
arrangements are made. A copy of the preneed cremation authorization form
shall be provided to the person signing the preneed arrangements. The
person prearranging his own cremation shall have the right to transfer or
cancel this authorization at any time prior to death, by notifying the entity
with which the preneed cremation authorization form is filed by certified
mail.
      (2) In the event that no different or inconsistent instructions are
provided to the crematory authority at the time of death, the crematory
authority shall release or dispose of the cremated remains as indicated in the

                                     86
preneed agreement.
(3) In the event that there is a conflict between the decedent's
prearrangement and the demands of the next class of authorizing agent in the
order set forth in KRS.
367.97501(1) regarding cremation, the crematory shall not accept for
cremation those human remains without an order deciding the issues entered
by the District Court of the county of the decedent's residence or the county
where the funeral home or the crematory authority is located. This order may
be issued by the court after a petition for resolution has been initiated by any
natural person listed in KRS 367.97501(1) or the crematory authority.
Unless extraordinary circumstances exist, the court shall give due deference
to the desires of the deceased as expressed in the prearrangement.
(4) Neither the crematory authority nor a licensed funeral director arranging
a cremation shall be held liable for the crematory authority's or the funeral
director's good faith reliance on representations made by the authorizing
agent regarding the authority or decision to cremate.
History: Amended 2000 Ky. Acts ch. 171, sec. 2, effective July 14, 2000. --
Created
1994 Ky. Acts ch. 140, sec. 9, effective July 15, 1994.

Note: It is interesting that the instructions by the decedent must be set forth
in a preneed cremation authorization form. There does not seem to be a
corollary provision in the case of a preneed contract where cremation is not
involved. This is not limited to Kentucky – much of the statutory law seems
to have been enacted to protect the funeral establishment conducting
cremations.


LOUISIANA

Case Law                       There appears to be no relevant case law.

Statutory Law                  There appears to be no relevant statutory law.


MAINE



                                      87
Case Law          There appears to be no relevant case law.

Statutory Law
Chapter 707 Section 2843-A§2843-A. Custody of remains of deceased
persons 1. Definitions. As used in this section, unless the context otherwise
indicates, the following terms have the following meanings.
A. "At-need funeral arrangements" means funeral arrangements made after
death.
B. "Custody and control" means the right to make all decisions, consistent
with applicable laws, regarding the handling of a dead body, including, but
not limited to, possession, at-need funeral arrangements, final disposition
and disinterment.
C. "Estranged" means living in separate residences and having a relationship
characterized by hostility or indifference.
D. "Next of kin" means a person having the following relationship to the
subject, in the following order of priority:
(1) The spouse;
(1-A) A domestic partner. For purposes of this section, "domestic partner"
means one of 2 unmarried adults who are domiciled together under long-
term arrangements that evidence a commitment to remain responsible
indefinitely for each other's welfare;
(2) An adult son or daughter;
(3) A parent;
(4) An adult brother or sister;
(5) An adult grandchild;
(6) An adult niece or nephew who is the child of a brother or sister;
(7) A maternal grandparent;
(8) A paternal grandparent;
(9) An adult aunt or uncle;
 (10) An adult first cousin; or
(11) Any other adult relative in descending order of blood relationship.
     E. "Subject" means the person whose remains are placed in the custody
and control of another person pursuant to this section.




                                     88
2. Custody and control generally. The custody and control of the remains of
deceased residents of this State are governed by the following provisions.

Title 22, §2843-A, Custody of remains of deceased persons
       A. If the subject has designated a person to have custody and control
in a written and signed document, custody and control belong to that person.
       B. If the subject has not left a written and signed document
designating a person to have custody and control, or if the person designated
by the subject refuses custody and control, custody and control belong to the
next of kin.

C. If the next of kin is 2 or more persons with the same relationship to the
subject, the majority of the next of kin have custody and control. If the next
of kin can not, by majority vote, make a decision regarding the subject's
remains, the court shall make the decision upon petition under subsection 4,
paragraph D.
        3. Estranged spouse or domestic partner. Notwithstanding subsection
2, if the surviving spouse or surviving domestic partner and the subject were
estranged at the time of death, the spouse or domestic partner may not have
custody and control of the subject's remains. In these cases, custody and
control belong to the next of kin following the spouse or domestic partner.
        4. Court determination. Notwithstanding other provisions of this
section, the court of probate for the residence of the deceased may award
custody and control to the person determined by the court most fit and
appropriate to carry out the responsibilities of custody and control, and may
make decisions regarding the subject's remains if those having custody and
control can not agree. The following provisions apply to court
determinations under this subsection.
        A. Before the subject's death, the subject or the subject's legal
representative may file a petition regarding custody and control of the
subject's remains.
        B. A relative of the subject may file a petition.
        C. A person who claims and establishes through evidence that that
person has or had a closer personal relationship to the subject than the next
of kin may file a petition, if that person lived with the subject and was not in
the employ of the subject or the subject's family.
        D. If the next of kin is 2 or more persons with the same relationship to
the subject, and the next of kin can not, by majority vote, make a decision
regarding the subject's remains, 2 or more persons who have custody or
control or a funeral director may file a petition asking the court to make a

                                      89
determination in the matter. The court shall consider the following in
making its determination:
       (1) The reasonableness and practicality of the proposed arrangements;
       (2) The degree of the personal relationship between the subject and
each of the 2 or more persons with custody and control;
       (3) The desires of the person or persons who are ready, able and
willing to pay the costs of the arrangements;
       (4) The convenience and needs of other family and friends wishing to
pay respect;
       (5) The expressed written desires of the subject; and
       (6) The degree to which the arrangements will allow maximum
participation by all wishing to pay respect.
       5. Wishes of subject. If the subject has left written and signed
instructions regarding funeral arrangements and disposal of the subject's
remains, the person having custody and control shall abide by those wishes
to the extent that the subject paid for those arrangements in advance or left
resources for the purpose of carrying out those wishes.
       6. Effect of payment by others. Except to the degree it must be
considered by the court under subsection 4, paragraph D, the fact that a
person other than the subject has paid or agreed to pay for all or part of
arrangements does not give that person a greater right to custody and control
than that person would otherwise have.
       7. Authority of personal representative. The personal representative of
the estate of the subject does not, by virtue of being the personal
representative, have a greater right to custody and control than the person
would otherwise have.
       8. Immunity. A party who, in good faith, acts upon the instructions of
the party having custody and control is not liable for having carried out those
instructions.
       9. Application. This section does not apply to the disposition of the
remains of a deceased person under chapter 709. This section does not
diminish or otherwise alter the authority of a medical examiner or other
official authorized under chapter 711. This section does not alter the rights
and obligations of the decedent's next of kin under Title 18-A.

Note:
The statute grants rights to domestic partners, which is unusual in the
context of burial rights. The statute also mirrors the common law in
providing that the personal administrator has no special rights – the fact that
he or she is the personal administrator does not grant any special status.

                                      90
The decedent may leave binding instructions. If there are disputes, the
statute provides for their resolution.


MARYLAND

Case Law                  There appears to be no relevant case law.

Statutory Law.            There appears to be no relevant statutory law.


MASSACHUSETTS

Case Law
 Margaret G. Vaughan vs. Lilah M. Vaughan, 294 Mass. 164, March 31,
1936, involved a bill in equity filed by Margaret G. Vaughan to compel the
sister of her deceased husband to remove the body of Margaret’s husband
from a grave in New Hampshire where he had been buried and deliver his
body to Margaret, for burial in a lot in Newton owned by the husband.
Margaret and the decedent were divorcing at the time of his death – the
decree was nisi. The Court noted that “The wishes of the surviving husband
or wife will control against the next of kin.” citing Burney v. Children’s
Hospital, 169 Mass. 57,58. While the divorce was in progress, Margaret was
still legally the wife of the decedent.

The Court said: “In this Commonwealth the right to possession of the dead
body is in the surviving husband or wife, with the duty of burial, and not in
the executor or administrator where there is no expressed wish of the testator
as to the disposition of the remains.”

Statutory Law
 239 CODE OF MASSACHUSETTS REGULATIONS 3.09 Control Over
Arrangements and Disposition of Human Remains

      3.09: Control Over Arrangements and Disposition of Human Remains

                                     91
       Every registered embalmer, registered funeral director, and licensed
funeral establishment shall comply with the following rules with respect to
control over funeral arrangements and disposition of human remains:
      (1) If a licensed funeral establishment is a party to a pre-need funeral
services contract, as defined in 239 CMR 4.01, for the benefit of the
deceased person, and said contract is still in effect at the time of that person's
death, the terms of that contract shall control the nature of the funeral goods
and services to be provided, the manner in which funeral services are to be
conducted for the deceased, and the final disposition of the deceased
person's remains to the full extent provided in that contract. No licensed
funeral establishment, nor any of its agents or employees, may cancel or
materially alter any of the arrangements specified in that contract, even if
requested to do so by a member of the deceased person's family or any other
person, unless:
        (a) Compliance with the terms of the original contract would result in
a violation of any applicable federal, state or local law or regulation; or
     (b) The funeral establishment is ordered to do so by a court of competent
jurisdiction.
     (2) Where there is no pre-need funeral services contract with the licensed
funeral establishment in effect at the time of death for the benefit of the
deceased person, or to the extent that any such contract does not fully
specify the nature of the funeral arrangements to be provided, said funeral
establishment and its agents or employees shall give effect first to any
wishes of the deceased person regarding the nature of the funeral goods and
services to be provided, the manner in which funeral services are to be
conducted, and/or the final disposition of the deceased person's remains,
which have been expressed in any written document which was signed by
the deceased person in the presence of a witness. In the absence of an order
from a court of competent jurisdiction to the contrary, said written document
shall be sufficient legal authorization for implementation of the
arrangements specified therein.
      (3) To the extent that there is no pre-need funeral services contract in
effect at the time of death for the benefit of the deceased person, and no
other valid written document indicating the wishes of the deceased person
with respect to the nature of the funeral goods and services to be provided,
the manner in which funeral services are to be conducted, or the final
disposition of the deceased person's remains, the funeral establishment and
its agents or employees shall follow the directions of the deceased person's
surviving kin, in the following order of priority, which is specified in
        (a) the surviving spouse of the deceased;

                                       92
          (b) the surviving adult children of the deceased;
         (c) the surviving parent(s) of the deceased;
         (d) the surviving brother(s) or sister(s) of the deceased;
          (e) the guardian of the person of the deceased at the time of his or her
death;
      (f) any other person authorized or obligated by law to dispose of the
remains of the deceased.

Note: A search of the Massachusetts General Laws would not disclose this
material, which is a part of the Code of Massachusetts Regulations.

      If the decedent had a pre-need funeral contract, that will govern. If he
did not, his written directions will control, if any, otherwise his next of kin
may determine his funeral and burial arrangements. There is nothing in the
regulations dealing with the situation of the surviving spouse who is
estranged from the decedent – presumably that would be dealt with my the
Probate & Family Court if the issue arose.

MICHIGAN

Case Law

See the earlier discussion in Whaley et als v. County of Tuscola et als, 58
Fed 1111 (6th Cir. 1995) in which the Sixth Circuit noted that state law
“provides the next of kin with a legitimate claim of entitlement and thus a
property interest in a dead relative’s body including the eyes. Accordingly,
the next of kin may bring a constitutional claim under the Due Process
Clause.”




                                        93
Statutory Law
RURAL CEMETERY CORPORATIONS (EXCERPT)
Act 12 of 1869

456.112 Burial rights; transfer, rights of surviving spouse and next of kin.

Sec. 12.
All rights of burial granted by such corporation shall be transferable and as
fully alienable as any other personal property in this state, subject only to
such conditions in reference thereto as shall be prescribed by the board of
directors and subject to rights of the surviving spouse and next of kin now
existing at law or in equity as to any individual burial space or grave in
which there is an actual interment.

Note: There seems to be no specific statutory provision tracking the
common law.




MINNESOTA STATUTES

Case Law                  There appears to be no relevant case law.

Statutory Law
149A.80 Death; right to control and duty of disposition.

       Subdivision 1. Advance directives and will of decedent.
A person may direct the preparation for, type, or place of that person's final
disposition, either by oral or written instructions. The person or persons
otherwise entitled to control the final disposition under this chapter shall
faithfully carry out the reasonable and otherwise lawful directions of the
decedent to the extent that the decedent has provided resources for the
purpose of carrying out the directions. If the instructions are contained in a
will, they shall be immediately carried out, regardless of the validity of the
will in other respects or of the fact that the will may not be offered for or


                                      94
admitted to probate until a later date, subject to other provisions of this
chapter or any other law of this state. This subdivision shall be administered
and construed so that the reasonable and lawful instructions of the decedent
or the person entitled to control the final disposition shall be faithfully and
promptly performed.

       Subd. 2. Determination of right to control and duty of disposition.
The right to control the disposition of the remains of a deceased person,
including the location and conditions of final disposition, unless other
directions have been given by the decedent pursuant to subdivision 1, vests
in, and the duty of final disposition of the body devolves upon, the following
in the order named:

       (1) the person appointed in a dated written instrument signed by the
decedent. Written instrument includes, but is not limited to, a health care
directive executed under chapter 145C. Written instrument does not include
a durable or nondurable power of attorney which terminates on the death of
the principal pursuant to sections 523.08 and 523.09;

      (2) the surviving, legally recognized spouse;

       (3) the surviving biological or adopted child or children of the
decedent over the age of majority, provided that, in the absence of actual
knowledge to the contrary, a funeral director or mortician may rely on
instructions given by the child or children who represent that they are the
sole surviving child, or that they constitute a majority of the surviving
children;

      (4) the surviving parent or parents of the decedent;

       (5) the surviving biological or adopted sibling or siblings of the
decedent over the age of majority, provided that, in the absence of actual
knowledge to the contrary, a funeral director or mortician may rely on
instructions given by the sibling or siblings who represent that they are the
sole surviving sibling, or that they constitute a majority of the surviving
siblings;

       (6) the person or persons respectively in the next degree of kinship in
the order named by law to inherit the estate of the decedent; and


                                      95
      (7) the appropriate public or court authority, as required by law.

      For purposes of this subdivision, the appropriate public or court
authority includes the county board of the county in which the death
occurred if the person dies without apparent financial means to provide for
final disposition or the district court in the county in which the death
occurred.

       Subd. 3. Estranged persons. Where there is only one person in a
degree of relationship to the decedent described in subdivision 2, clauses (1)
to (6), and a district court pursuant to subdivision 5, determines that the
person and the decedent were estranged at the time of death, the right to
control and the duty of disposition shall devolve to the person or persons in
the next degree of relationship pursuant to subdivision 2, clauses (1) to (6).
For purposes of this subdivision, "estranged" means having a relationship
characterized by mutual enmity, hostility, or indifference.

      Subd. 4. Refusal of right to control and duty of disposition. If a
person or persons to whom the right to control and duty of disposition
devolve pursuant to subdivision 2, clauses (1) to (6), refuses to accept or
declines to act upon the right or duty, that right and duty shall pass as
follows:

       (1) to another person or persons with the same degree of relationship
to the decedent as the person or persons refusing to accept or declining to
act; or

     (2) to the person or persons in the next degree of relationship to the
decedent pursuant to subdivision 2, clauses (1) to (6).

      Subd. 5.     Disputes. When a dispute exists regarding the right to
control or duty of disposition, the parties in dispute or the mortician or
funeral director may file a petition in the district court in the county of
residence of the decedent requesting that the court make a determination in
the matter. Should the right to control and duty of disposition devolve to
more than one person with the same degree of relationship to the decedent
and those persons cannot, by majority vote, make a decision regarding
arrangements and final disposition and a district court has been petitioned to
make a determination, the court shall consider the following factors in
making its determination:

                                      96
     (1) the reasonableness, practicality, and resources available for
payment of the proposed arrangements and final disposition;

      (2) the degree of the personal relationship between the decedent and
each of the persons in the same degree of relationship to the decedent;

      (3) the expressed wishes and directions of the decedent and the extent
to which the decedent has provided resources for the purpose of carrying out
the wishes or directions; and

       (4) the degree to which the arrangements and final disposition will
allow for participation by all who wish to pay respect to the decedent.

      Subd. 6. Control by funeral director or mortician. A funeral director
or mortician shall have complete authority to control the final disposition
and to proceed under this chapter to recover reasonable charges for the final
disposition when both of the following apply:

      (1) the funeral director or mortician has actual knowledge that none of
the persons described in subdivision 2, clauses (1) to (6), exist or that none
of the persons so described can be found after reasonable inquiry or
contacted by reasonable means; and

      (2) the appropriate public or court authority fails to assume
responsibility for disposition of the remains within 36 hours after having
been given written notice of the facts. Written notice may be delivered by
hand, United States mail, facsimile transmission, or telegraph.

       Subd. 7.     Immunity. A funeral director or mortician shall not be
subject to criminal prosecution or civil liability for carrying out the
otherwise lawful instructions of the decedent or the person or persons whom
the funeral director or mortician reasonably believes is entitled to control the
final disposition.

       Subd. 8.        Liability for cost of final disposition. In addition to
separate contractual obligations, the liability for the reasonable cost of final
disposition devolves upon the estate of the decedent, regardless of whether
testate or intestate, and the distributees of the estate pursuant to chapter 524,
the Uniform Probate Code. In the case of persons who die without apparent

                                       97
financial means to provide for final disposition, control of final disposition
and liability devolves to the county board of the county in which the death
occurred.

Note: The law allows directions in a “will” to govern, whether the “will”
has been allowed or not. Suppose the “will” is not allowed? Should it not
be referred to as It is actually the “purported” will.


MISSISSIPPI

Case Law                   There appears to be no relevant case law.

Statutory Law
Mississippi Code of 1972
As Amended

Sec: 75-63-25. Certain pre-need cemetery and funeral contracts overrule
conflicting wishes of next of kin; pre-need contract providers have right to
rely on contract and perform obligations in accordance with contract.

(1) Any pre-need contract which is executed by the decedent for his own
arrangements and is fully funded overrules, following the decedent’s death,
the conflicting wishes of the decedent’s next of kin, unless a compelling
public interest makes it impossible to comply with a decedent’s directions in
a pre-need contract.

(2) The provisions of this section shall not prevent the decedent’s next of
kin or surviving heirs at law from, at their own expense, pursuing reasonable
services and making reasonable arrangements that do not conflict with the
decedent’s directions in a pre-need contract.

(3) All contract providers shall have the right to rely on the pre-need
contract and perform obligations in accordance with the pre-need contract.
There shall be no liability for any contract provider who in good faith
performs his obligations pursuant to the pre-need contract, provided the pre-
need contract is in compliance with Section 75-63-51 et seq. and any rules
promulgated thereunder.

                                      98
Note: This seems to say, indirectly, that so long as the “contract provider”
is fully paid, the next of kin or surviving heirs can do what they wish.


MISSOURI

Case Law                  There appears to be no relevant case law.

Statutory Law

Missouri Revised Statutes
Chapter 194
Death -- Disposition of Dead Bodies
Section 194.119

Right of sepulcher, the right to choose and control final disposition of a dead
human body.

194.119.1 As used in this section, the term “right of sepulcher” means the
right to choose and control the burial, cremation, or other final disposition of
a dead human body.

2. For purposes of this chapter and chapters 193, 333, and 436, RSMo, and
in all cases relating to the custody, control, and disposition of deceased
human remains, including the common law right of sepulcher, where not
otherwise defined, the term “next-of-kin” means the following persons in the
priority listed if such person is eighteen years of age or older, is mentally
competent, and is willing to assume responsibility for the costs of
disposition:

(1) The surviving spouse;

(2) Any surviving child of the deceased. If a surviving child is less than
eighteen years of age and has a legal or natural guardian, such child shall not
be disqualified on the basis of the child’s age and such child’s legal or
natural guardian, if any, shall be entitled to serve in the place of the child
unless such child’s legal or natural guardian was subject to an action in

                                      99
dissolution from the deceased. In such event the person or persons who may
serve as next-of-kin shall serve in the order provided in subdivisions (3) to
(8) of this subsection;

(3) (a) Any surviving parent of the deceased; or

(b) If the deceased is a minor. a surviving parent who has custody of the
minor; or

(c) If the deceased is a minor and the deceased’s parents have joint custody,
the parent whose residence is the minor child’s residence for purposes of
mailing and education;

(4) Any surviving sibling of the deceased;

(5) Any person designated by the deceased to act as next-of-kin pursuant to
a valid designation of right of sepulcher as provided in subsection 8 of this
section.

(6) The next nearest surviving relative of the deceased by consanguinity or
affinity;

(7) Any person or friend who assumes financial responsibility for the
disposition of the deceased’s remains if no next-of-kin assumes such
responsibility;

(8) The county coroner or medical examiner; provided however that such
assumption of responsibility shall not make the coroner, medical examiner,
the county, or the state financially responsibility for the cost of disposition.

3. The next-of-kin of the deceased shall be entitled to control the final
disposition of the remains of any dead human being consistent with all
applicable laws, including all applicable health codes.

4. A funeral director or establishment is entitled to rely on and act according
to the lawful instructions of any person claiming to be the next-of-kin of the
deceased; provided however, in any civil cause of action against a funeral
director or establishment licensed pursuant to this chapter for actions taken
regarding the funeral arrangements for a deceased person in the director’s or
establishment’s care, the relative fault, if any, of such funeral director or

                                      100
establishment may be reduced if such actions are taken in reliance upon a
person’s claim to be the deceased person’s next-of-kin.

5. Any person who desires to exercise the right of sepulcher and who has
knowledge of an individual or individuals with a superior right to control
disposition shall notify such individual or individuals prior to making final
arrangements.

6. If an individual with a superior claim is personally served with written
notice from a person with an inferior claim that such person desires to
exercise the right of sepulcher and the individual so served does not object
within forty-eight hours of receipt, such individual shall be deemed to have
waived such right. An individual with a superior right may also waive such
right at any time if such waiver is in writing and dated.

7. If there is more than one person in a class who are equal in priority and
the funeral director has no knowledge of any objection by other members of
such class, the funeral director or establishment shall be entitled to rely on
any act according to the instructions of the first such person in the class to
make arrangements; provided that such person assumes responsibility for the
costs of disposition and no other person in such class provides written notice
of his or her objection.

8. Any person may designate an individual to be his or her closest next-of-
kin, regardless of blood or marital relationship, by means of a written
instrument that is signed, dated, and verified. Such designation of right of
sepulcher shall be witnessed by two persons, and shall contain the names
and last known address of each person entitled to be next-of-kin but for the
execution of the designation of right of sepulcher and who are higher in
priority than the person so designated.
Note: There is an interesting use of the term “next-of-kin” to designate an
agent for funeral purposes. The decedent-to-be can designate his “next-of-
kin” which is a somewhat rare privilege, you will agree.




                                     101
MONTANA

Case Law                  There appears to be no relevant case law.

Statutory Law
Montana Code Annotated 72-3-601 Time of accrual of duties and powers –
power of executor prior to appointment – ratification.

       (1) The duties and powers of a personal representative commence
upon his appointment. The powers of a personal representative relate back
in time to give acts by the person appointed which are beneficial to the estate
occurring prior to appointment the same effect as those occurring thereafter.
       (2) Prior to appointment, a person named executor in a will may carry
out written instructions of the decedent relating to his body, funeral, and
burial arrangements.

Note: There is a reference in 50-21-103 to the duty of the surviving
husband, wife, or next of kin to bury the decedent.

       It is unusual that this statute grants to the executor or personal
representative the power to make funeral and disposition arrangements. This
is the English rule, but it appears that the only state in the United States
which follows it is Montana.




                                     102
NEBRASKA

Case Law                  There appears to be no relevant case law.

Statutory Law
State of Nebraska Statutes Section 71-1339 Deceased persons; control of
remains; interment; liability

      Except as otherwise provided in section 71-20, 121, the right to
control the disposition of the remains of a deceased person, except in the
case of a minor subject to section 23-2824 and unless other directions have
been given by the decedent in the form of a testamentary disposition of a
pre-need contract, vests in the following persons in the order named:

       (1) Any person authorized to direct the disposition of the decedent’s
body pursuant to a notarized affidavit authorizing such disposition and
signed and sworn to by the decedent. Such an affidavit shall be sufficient
legal authority for authorizing disposition without additional authorization
from the decedent, the decedent’s family, or the decedent’s estate. Such
person shall not be considered an attorney in fact pursuant to sections 30-
3401 to 30-3432;

      (2) The surviving spouse of the decedent;

       (3) If the surviving spouse is incompetent or not available or if there
is no surviving spouse, the decedent’s surviving adult children. If there is
more than one adult child, any adult child, after confirmation in writing of
the notification of all other adult children, may direct the manner of
disposition unless the funeral establishment or crematory authority receives
written objection to the manner of disposition from another adult child;

      (4) The decedent’s surviving parents;

      (5) The persons in the next degree of kinship under the laws of
descent and distribution to inherit the estate of the decedent. If there is more

                                      103
than one person of the same degree, any person of that degree may direct the
manner of disposition;

      (6) A guardian of the person of the decedent at the time of such
person’s death;

      (7) The personal representative of the decedent;

      (8) The State Anatomical Board or county board in the case of an
indigent person or any other person the disposition of whose remains is the
responsibility of the state or county; or

      (9) A representative of an entity described in section 71-1340 that has
arranged with the funeral establishment or crematory authority to cremate a
body part in the case of body parts received from such entity described in
section 71-1340.

        A funeral director, funeral establishment, crematory authority, or
crematory operator shall not be subject to criminal prosecution or civil
liability for carrying out the otherwise lawful instructions of the person or
persons descried in this section if the funeral director or crematory authority
or operator reasonably believes such person is entitled to control the final
disposition of the remains of the deceased person.

      The liability for the reasonable cost of the final disposition of the
remains of the deceased person devolves jointly and severally upon all kin of
the decedent in the same degree of kindred and upon the estate o the
ded3edent, and, in cases when the county board has the right to control
disposition of the remains under subdivision (8) of this section, upon the
county in which death occurred from funds available for such purpose.


NEVADA

Case Law                  There appears to be no relevant case law.

Statutory Law


                                     104
Nevada Revised Statutes 451.024         Authority to order burial of human
remains; execution of affidavit.

       1. The following persons, in the following order of priority, may
order the burial of human remains of a deceased person;

       (a) A person designated as the person with authority to order the
burial of the human remains of the decedent in a legally valid document or
in an affidavit executed in accordance with subsection 5;
       (b) The spouse of the decedent;
       (c) An adult son or daughter of the decedent;
       (d) Either parent of the decedent;
       (e) An adult brother or sister of the decedent;
       (f) A grandparent of the decedent;
       (g) A guardian of the person of the decedent at the time of death; and
       (h) A person who held the primary domicile of the decedent in joint
tenancy with the decedent at the time of death.
       2. If the deceased person was an indigent or other person for whom
the final disposition of the decedent’s remains is a responsibility of a county
or the State, the appropriate public officer may order the burial of the
remains and provide for the respectful disposition of the remains.
       3. If the deceased person donated his body for scientific research, or,
before his death, a medical facility was made responsibility for his final
disposition, a representative of the scientific institution or medical facility
may order the burial of his remains.
       e. A living person may order the burial of human remains removed
from his body or for the burial of his body after his death. In the latter case,
any person acting pursuant to his instructions is an authorized agent.
       5. A person 18 years of age or older wishing to authorize another
person to order the burial of his human remains in the event of his death may
execute an affidavit before a notary public in substantially the following
form:

State of Nevada
County of _________

                                                     Date ______________

      I, __________ (person authorizing another person to order the burial
of his human remains in the event of his death) do hereby designate

                                      105
____________ (person who is being authorized to order the burial of the
human remains of a person in the event of his death) to order the burial of
my human remains upon my death.
Subscribed and sworn to before me this _____ day of the month of ___ of
the year of ______.
_______________________
       (Notary Public)


NEW HAMPSHIRE

Case Law          There appear to be no relevant case law.

Statutory Law
Title XXVI Cemeteries; Burials; Dead Bodies
Chapter 390 Burials and Disinterments Custody of Remains of Deceased
Persons
Section 290:17

290:17 Custody and Control Generally. – the custody and control of the
remains of deceased residents of this state are governed by the following
provisions:
       I. If the subject has designated a person to have custody and control
in a written and signed document, custody and control belong to that person.
The person designated by the subject shall be entitled to no compensation or
reimbursement of expenses relating to the custody and control of the
subject’s body.
       II. If the subject has not left a written signed document designating a
person to have custody and control, or of the person designated b the subject
refused custody and control, custody and control belong to the next of kin.
       III, If the next of kin is 2 or more persons with the same relationship
to the subject, the majority of the next of kin have custody and control. If
the next of kin cannot, by majority vote, make a decision regarding the
subject’s remains, the court shall make the decision upon petition under
RSA 290:19,IV.

Section 290:18 Estranged Spouse


                                     106
      Notwithstanding RSA 290:17, if the surviving spouse and the subject
were estranged at the time of death, the spouse shall not have custody and
control of the subject’s remains. In this case, custody and control belong to
the next of kin following the spouse.

Note: The statement that “The person designated by the subject shall be
entitled to no compensation or reimbursement of expenses relating to the
custody and control of the subject’s body” presumably does not refer to the
expenses of the funeral and disposition.


NEW JERSEY

Case Law                 There appears to be no relevant case law.

Statutory Law
Title 45 Professions and Occupations
45:27-22 Control of funeral, disposition of remains.

       22.a If a decedent, in making a will as defined in N.J.S. 3B:1-2,
appoints a person to control the funeral and disposition of the human
remains, the funeral and disposition shall be in accordance with the
instructions of the person so appointed. A person so appointed shall not
have to be executor of the will. The funeral and disposition may occur prior
to probate of the will, in accordance with section 40 of P.L.2003, c.261
(C.3B:10-21.1) If the decedent has not left a will appointing a person to
control the funeral and disposition of the remains, the right to control the
funeral and disposition of the human remains shall be in the following order,
unless other directions have been given by a court of competent jurisdiction:

      (1) The surviving spouse of the decedent or the surviving domestic
partner.
      (2) A majority of the surviving adult children of the decedent.
      (3) The surviving parent or parents of the decedent.
      (4) A majority of the brothers and sisters of the decedent.
      (5) Other next of kin of the decedent according to he degree of
consanguinity.


                                    107
       (6) If there are no known living relatives, a cemetery may rely on the
written authorization of any other person acting on behalf of the decedent.

Note: A domestic partner, under New Jersey Statutes 26:8A-4 is established
when two people have a common residence and are otherwise jointly
responsible for each other’s common welfare as evidence by joint financial
arrangements or joint ownership of real or personal property, which shall be
demonstrated by at least one of a joint deed, mortgage, or lease, a joint bank
account, designation of one of the persons as a primary beneficiary in the
other’s will, designation of one of the persons as a primary beneficiary in the
other’s life insurance or joint ownership of a motor vehicle. Both persons
must agree to be jointly responsible for each other’s basic living expenses,
neither one is in a marriage recognized by New Jersey law, neither person is
related to the other, both are of the same sex (except that two persons who
are each 62 years of age or older) and not if the same sex may establish a
domestic partnership, and both have filed an Affidavit of Domestic
Partnership.

       It is interesting that the domestic partnership privileges are available
not only to persons of the same sex, but also to persons not of the same sex
who are more than 62 years of age. This presumably is to cover the situation
of the potential loss of Social Security benefits in the event of remarriage.

NEW MEXICO

Case Law                        No relevant case law was found.

Statutory Law

Title 24-12A-2. No written instructions; priority of others to decide
disposition.
If a decedent has left no written instructions regarding the disposition of his
remains, the following persons in the order listed shall determine the means
of disposition, not to be limited to cremation, of the remains of the decedent:
A. the surviving spouse;
B. a majority of the surviving adult children of the decedent;
C. the surviving parents of the decedent;
D. a majority of the surviving siblings of the decedent;

                                     108
E. an adult who has exhibited special care and concern for the decedent,
who is aware of the decedent’s views and desires regarding the disposition
of his body and who is willing and able to make a decision about the
disposition of the decedent’s body; or
F. the adult person of he next degree of kinship in the order named by New
Mexico law to inherit the estate of the decedent.


Title 61-32-20 “Embalming” under the heading of Professional and
Occupational Licenses - Thanatopractice provides that when embalming is
not required under the provisions of this section, a dead human body shall
not be embalmed without express authorization by the:

(1) surviving spouse or next of kin;
(2) legal agent or personal representative representative of the deceased or
3 person assuming responsibility for final disposition.

24-12A-1. Right to authorize cremation; definitions

A. Any adult may authorize his own cremation and the lawful disposition of
his cremated remains by :

(1) stating his desire to be cremated in a written statement that is signed by
the individual and notarized or witnessed by two persons; or

(2) including an express statement in his will indicating that the testator
desired that his remains be cremated upon is death.

B. A personal representative acting pursuant to a will or Article 3 of
Chapter 45 NMSA 1979 or a funeral establishment, a commercial
establishment, a direct disposition establishment or a crematory shall comply
with a statement made in conformance with the provisions of Subsection A
of this section. A statement that conforms to the provision of Subsection A
of this section is authorization to a personal representative, funeral
establishment, commercial establishment or direct disposition establishment
or crematory that the remains of the decedent are to be cremated.
Statements dated prior to the effective date of this act are to be given effect
if they meet the requirements of Subsection A of this section.




                                     109
Note: The reference to Article 3 of Chapter 45 NMSA 1979 is to the
Uniform Probate Code and relates to an administrator.

Thanatopractice is the practice of dealing with death. In Greek mythology,
Thanatos is the personification of death.




                                    110
NEW YORK

Case Law
Michael Stewart, Plaintiff v.
Schwartz Brothers-Jeffer Memorial Chapel, Inc., et als Supreme Court,
Queens County, Aug. 23, 1993, 606 N.Y.S.2d 965, 159 Misc.2d 884

       Drew Stanton and Michael Stewart were lovers for five years.
Stanton died and his mother and brother took possession of his remains and
had the body shipped to the defendant memorial chapel where they planned
to hold an elaborate Orthodox Jewish funeral, followed by interment at Beth
David Cemetery in Queens, New York.

       Stewart, who was named executor and who was the beneficiary of
Stanton’s will, claimed that Stanton had rejected his Jewish heritage,
changed his name from Sobel to Stanton, and wanted to be cremated, and to
have a small gathering at their home. Particularly he did not want a rabbi to
officiate at any services for him. Stanton and his mother were estranged.

       The court noted that “The Plaintiff’s position as executor of Stanton’s
estate fails to give him standing for two reasons. First, the decedent’s will
does not expressly designate a method of disposing of the body nor does it
vest that responsibility with the executor. Second, as there is merely a
personal and not a proprietary right in the decedent’s body, it is not subject
to delegation under the will and, therefore, not within the executor’s
control.”

       The court went on to say that “Either Stanton’s surviving spouse or
next of kin would have standing in this case because, absent testamentary
direction to the contrary, the right to possession of a body for the purpose of
preservation and burial generally belongs to those parties over all others.”

      The judge noted that New York courts have included gay relationships
within the purview of familial ones in the context of the New York City
Rent and Eviction Regulations, but that they have not extended the view
beyond that. Notwithstanding that, the Court said that Stewart did have
standing “as a representative of Stanton’s wishes for the disposition of his
remains.”


                                     111
      The court said that every individual has the right to dispose of his
remains and where the directions are expressed in a will they are usually
paramount to all other considerations, including the objections of the next of
kin. The right to dispose of one’s remains was set forth in Public Health
Law §4201, which was repealed, the judge said, because the Uniform
Anatomical Gift Act of 1968 made it obsolete.

       While the court was very sympathetic to Stewart’s position because of
his status as a companion of Stanton for five years, the judge noted that he
would have an uphill battle to succeed in his cause. The decedent’s mother
and brother and the plaintiff in this case finally agreed that the decedent was
to be cremated and the ashes divided between Stewart and the decedent’s
family.


Statutory Law             There appears to be no relevant statutory law.


North Carolina

Case Law                  There appears to be no relevant case law.

Statutory Law
§ 90-210.124. Authorizing agent.
       (a) The following person, in the priority list below, shall have the
right to serve as an “authorizing agent”:
       (1) An individual at least 18 years of age may authorize the cremation
and disposition of the individual’s own dead body in a written will, pursuant
to health care power of attorney to the extent provided in Article 3 of
Chapter 32 of the General Statutes, pursuant to a preneed funeral contract
executed pursuant to Article 13D of Chapter 90 of the General Statutes,
pursuant to a cremation authorization form executed pursuant to Artic le 13F
of Chapter 90 of the General Statutes, or in a written statement signed by
the3 individual and witnessed by two persons who are at least 18 years old.
When an individual has authorized his or her own cremation and disposition
in accordance with this subsection, the individual or institution designated
by that individual shall act as the authorizing agent for that individual.

                                     112
       (2) If a decedent has left no written authorization for the cremation
and disposition of the decedent’ s body as permitted under subdivision (1) of
this subsection, the following competent persons in the order listed may
authorize the type, method, place, cremation, and disposition of the
decedent’s body:
       a. The surviving spouse.
       b. A majority of the surviving children who are at least 18 years of
age and can be located after reasonable efforts.
       c. The surviving parents.
       d. A majority of the surviving siblings who are at least 18 years of
age and can be located after reasonable efforts.
       e. A majority of the persons in the classes of the next degrees of
kinship, in descending order, who, under State law, would inherit the
decedent’s estate if the decedent died intestate who are at least 18 years of
age and can be located after reasonable efforts.
       f. A person who has exhibited special care and concern for the
decedent and is willing and able to make decisions about the cremation and
disposition.
       g. In the case of indigents or any other individuals whose final
disposition is the responsibility of the State or any of its instrumentalities, a
public administrator, medical examiner, coroner, State-appointed guardian,
or any other public official charged with arranging the final disposition of
the decedent may serve as the authorizing agent.
       h. In the case of individuals who have donated their bodies to science
or whose death occurred in a nursing home or private institution and in
which the institution is charged with making arrangements for the final
disposition of the decedent, a representative of such institution my serve as
the authorizing agent in the absence of any of the above.
       i. In the absence of any of the above, any person willing to assume
responsibility as authorizing agent, as specified in this act.

This subsection does not grant to any person the right to cancel a preneed
funeral contract executed pursuant to Article 13D of Chapter 90 of the
General Statutes or to cause or prohibit the substitution of a preneed licensee
as authorized under G.S. 90-210.63.
(b) A person who does not exercise his or her right to dispose of the
decedent’s body under subdivision (a)(2) of this section within five days of
notification or 10 days from date of death, whichever is earlier, shall be
deemed to have waived his or her right to authorize disposition of the
decedent’s body or to contest disposition in accordance with this section.

                                      113
(c) An individual at least 18 years of age may, in a writing signed by the
individual, authorize the cremation and disposition of one or more of the
individual’s body parts that has been or will be removed. If the individual
does not authorize the cremation and disposition, a person listed in
subdivision (a)(20 of this section may authorize the cremation and
disposition as if the individual were deceased.
(d) This section does not apply to the disposition of dead human bodies as
anatomical gifts under Part 3 of Article 16 of Chapter 130A of the General
Statutes or the right to perform autopsied under Part 2 of Article 16 of
Chapter 130A of the General Statutes.


NORTH DAKOTA

Case Law                    There appears to be no relevant case law.

Statutory Law
Title 23 Health and Safety
Chapter 23-06
CARE AND CUSTODY OF DEAD

23.06-01. Right to dispose of one’s own body. Repealed by S.L. 1969, ch.
255, § 12.

23-06-02. Custody of body. The person charged with the duty of burying
the body of a deceased person is entitled to the custody of such body for the
purpose of burying it. When the coroner is required to hold an inquest,
however, the coroner is entitled to the custody of the body until such inquest
has been completed.

23.06.03. Duty of burial.

1. The duty of burying the body of a deceased person devolves upon the
surviving husband or wife if the deceased was married, or, if the deceased
was not marked but left kindred, upon the person or persons in the same
degree, of adult age, nearest of kin to the deceased and possessed of
sufficient means to defray the necessary expenses.



                                      114
2. If he person who has the duty of burial does not bury the body within the
time required by this chapter, the person next specified shall bury the body.

3. If the deceased is not survived by a person described by subsection 1 and
did not leave sufficient means to defray funeral expenses, including the cost
of a casket, he county social service board of the county in which the
deceased had residence for county general assistance purposes or, if
residence cannot be established, the county social service board of he county
in which the death occurs shall employ some person to arrange for and
supervise the burial or cremation. If the deceased was a resident or inmate
of a public institution, the county in which the deceased was a resident for
county general assistance purposes immediately before entering he
institution shall employ a person to arrange for and supervise the burial or
cremation. Each board of county commissioners may negotiate with the
interested funeral directors or funeral homes regarding cremation expenses
and burial expenses but the total charges for burial services, including
transportation of the deceased to the place of burial, the grave box or vault,
grave space, and grave opening and closing expenses, may not be less than
one thousand five hundred dollars. The county social service board shall
pay the charge for funeral expenses as negotiated by the board of county
commissioners, less any amount left by the deceased to defray the expenses.

4. A person with the duty of burial under this section, or the personal
representative of the decedent’s estate, if any, shall honor, to the extent
reasonable and possible, any pre-need funeral arrangements a deceased
articulated and funded in a pre-need funeral service contract.

OHIO

Case Law      There appears to be no relevant case law.

Statutory Law

§ 4717.21 Antemortem cremation authorization form.      (A) Any person,
on an antemortem basis, may serve as the person’s own authorizing agent,
authorize the person’s own cremation, and specify the arrangements for the
final disposition of the person’s own cremated remains by executing an
antemortem cremation authorization form. A guardian, custodian, or other


                                     115
personal representative who is authorized by law or contract to do so on
behalf of a person, on an antemortem basis, may authorize the cremation of
the person and specify the arrangements for the final disposition of the
person’s cremated remains by executing an antemortem cremation
authorization form on the person’s behalf. Any such antemortem cremation
authorization form shall also be signed by one witness. The original copy of
the executed authorization form shall be sent to the operator of the
crematory facility being authorized to conduct the cremation, and a copy
shall be retained by the person who executed the authorization form. The
person who executed an antemortem cremation authorization form may
revoke the authorization at any time by providing written notice of the
revocation to the operator of the crematory facility named in the
authorization form. The person who executed the authorization form may
transfer the authorization to another crematory facility by providing written
notice to the operator of the cremation facility named in the original
authorization of the revocation of the authorization and, in accordance with
this division, executing a new antemortem cremation authorization form
authorizing the operator of another crematory facility to conduct the
cremation.




                                    116
       (B) Each antemortem cremation authorization form shall specify the
final disposition that is to be made of the cremated remains.

       (C) When the operator of a crematory facility is in possession of a
cremation authorization form that has been executed on an antemortem basis
in accordance with this section, the other conditions set forth in division (A)
of section 4717.23 of the Revised code have been met, the crematory facility
has possession of the decedent to which the antemortem authorization
pertains, and the crematory facility has received payment for the cremation
of the decedent and the final disposition of the cremated remains of the
decedent or is otherwise assured of payment for those services, the
crematory facility shall cremate the decedent and dispose of the cremated
remains in accordance with the instructions contained in the antemortem
cremation authorization form, unless a person identified as being entitled to
act as the authorizing agent for the cremation of the decedent in the absence
of the antemortem authorization under divisions (A)(1) or (A)(4) to (8) of
section 4717.22 of the Revised Code has modified, in writing, the
arrangements for the final disposition of the cremated remains of the
decedent or has cancelled the cremation and made alternative arrangements
for the final disposition of the decedent’s body.

       (D) An antemortem cremation authorization form executed under
division (A) of this section does not constitute a contract for conducting the
cremation of the person named in the authorization form or for the final
disposition of the person’s cremated remains. Despite the existence of such
an antemortem cremation authorization, a person identified under divisions
(A)(1) or (A)(4) to (8) of section 4717.22 of the Revised Code as being
entitled to act as the authorizing agent for the cremation of the decedent
named in the antemortem authorization, in the descending order of priority
in which they are listed, may modify, in writing, the arrangements for the
final disposition of the cremated remains of the decedent set forth in the
authorization form or may cancel the cremation and claim the decedent’s
body for purposes of making alternative arrangements for the final
disposition of the decedent’s body. The revocation of an antemortem
cremation authorization form executed under division (A) of this section, or
the cancellation of the cremation of the person named in the antemortem
authorization or modification of the arrangements for the final disposition of
the person’s cremated remains as authorized by this division, does not affect
the validity or enforceability of any contract entered into for the cremation

                                     117
of the person named in the antemortem authorization or for the final
disposition of the person’s cremated remains.

      (E) Nothing in this section applies to any antemortem cremation
authorization form executed prior to the effective date of this section. Any
cemetery, funeral home, crematory facility, or other party may specify, with
the written approval of the person who executed the antemortem
authorization, that such an antemortem authorization is subject to sections
4717.21 to 4717.30 of the Revised Code.

Note: The law contains a provision authorizing the person who has the right
to take charge of the funeral and disposition of the body to amend or cancel
a contract with a facility for cremation of the body or disposition of the
remains.


OKLAHOMA

Case Law                 There appears to be no relevant case law.
Statutory Law             There appears to be no relevant statutory law.


OREGON

Case Law                 There appears to be no relevant case law.

Statutory Law
Oregon Revised Statutes 97.130 Right to control disposition of remains;
delegation
       (1) Any individual of sound mind who is 18 years of age or older, by
completion of a written signed instrument or by preparing or prearranging
with any funeral service practitioner licensed under ORS chapter 692, may
direct any lawful manner of disposition of the individual’s remains. Except
as provided under subsection (6) of this section, disposition directions or
disposition prearrangements that are prepaid or that are filed with a funeral
service practitioner licensed under ORS chapter 692 shall not be subject to
cancellation or substantial revision.

                                    118
      (2) A person within the first applicable listed class among the
following listed classes that is available at the time of death or, in the
absence of actual notice of a contrary direction by the decedent as described
under subsection (1) of this section or actual notice of opposition by
completion of a written instrument by a member of the same class or a
member of a prior class, may direct any lawful manner of disposition of a
decedent’s remains by completion of a written instrument:
      (a) The spouse of the decedent.
      (b) A son or daughter of the decedent 18 years of age or older.
      (c) Either parent of the decedent.
      (d) A brother or sister of the decedent 18 years of age or older.
      (e) A guardian of the decedent at the time of death.
      (f) A person in the next degree of kindred to the decedent.
      (g) The personal representative of the estate of the decedent.
     (h) The person nominated as the personal representative of the
decedent in the decedent’s last will.
      (i) A public health officer.
       (3) The decedent or any person authorized n subsection (2) of this
section to direct the manner of disposition of the decedent’s remains may
delegate such authority to any person 18 years of age or older. Such
delegation shall be made by completion of the written instrument described
in subsection (7) of this section. The person to whom the authority is
delegated shall have the same authority under subsection (2) of this section
as the person delegating the authority.
      (4) If a decedent or the decedent designee issues more than one
authorization or direction for the disposal of the decedent’s remains, only the
most recent authorization or direction shall be binding.
       (5) A donation of anatomical gifts under ORS 97.952 or 97.954 shall
take priority over directions for the disposition of a decedent’s remains
under this section only if the person making the direction is of a priority uner
subsection (1) or (2) of this section the same as or higher than the priority of
the person directing the disposition of the remains.
      (6) If the decedent directs a disposition under subsection (1) of this


                                      119
section and those financially responsible for the disposition are without
sufficient funds to pay for such disposition or the estate of the decedent has
insufficient funds to pay for the disposition, or if the direction is unlawful,
the direction shall be void and disposition shall be in accordance with the
direction provided by t
hose persons given priority in subsection (2) of this section and who agree to
be financially responsible.
       (7) The signature of the individual shall be required for the
completion of the written instrument required in subsection (3) of this
section. The following form or a form substantially similar shall be used by
all individuals:
APPOINTMENT OF PERSON TO MAKE DECISIONS CONCERNING
DISPOSITION OF REMAINS
I, ___________ appoint __________ whose address is __________ and
whose telephone number is ________ , s the person to make all decisions
regarding the disposition of may remains upon my death for m y burial or
cremation. In the event _____ is unable to act, I appoint _______ whose
address is ______ and whose telephone number is ______, as my alternate
person to make all decisions regarding the disposition of my remains upon
my death for my burial or cremation.
      It is my intent that this Appointment of Person to Make Decisions
Concerning Disposition of Remains act as and be accepted as the written
authorization presently required by ORS 97.130 (or its corresponding future
provisions) or any other provisions of Oregon Law, authorizing me to name
a person to have authority to dispose of my remains.
      DATED this _____ day of ____,______.


                                                    _______________
                                                    Signature
DECLARATION OF WITNESSES
      We declare that _________ is personally known to us, that he/she
signed this Appointment of Person to Make Decisions Concerning
Disposition of Remains in our presence, that he/she appeared to be of sound
mind and not acting under duress, fraud or undue influence, and that neither


                                     120
of is the person so appointed by this document.
Witnessed By:
_____________________ Date: ________
_____________________ Date _______


PENNSYLVANIA
Case Law                  There appears to be no relevant case law.
Statutory Law
20 Pennsylvania Consolidated Statutes § 305
§ 305. Right to dispose of a decedent’s remains
       (a) GENERAL RULE. – The determination of the final disposition of
a decedent’s remains shall be as set forth in this section unless otherwise
specifically provided for by waiver and agreement of the person entitled to
make such determination under this section, subject to the provisions of a
valid will executed by the decedent and section 8611(a) (relating to persons
who my execute anatomical gift.)
      (b) DISPOSITION OF THE REMAINS OF A DECEASED
SPOUSE. – Absent an allegation of enduring estrangement, incompetence,
contrary intent or waiver and agreement which is proven by clear and
convincing evidence, a surviving spouse shall have the sole authority in all
matters pertaining to the disposition of the remains of the decedent.
       (c) DISPOSITION OF THE REMAINS OF OTHERS. – If there is
not a surviving spouse, absent an allegation of enduring estrangement,
incompetence, contrary intention or waiver and agreement which is proven
by clear and convincing evidence, the next of kin shall have sole authority in
all matters pertaining to the disposition of the remains of the decedent.
       (d) PROCEDURE.          --    Where a petition alleging enduing
estrangement, incompetence, contrary intent or waiver and agreement is
made within 48 hours of the death or discovery of the body of the decedent,
whichever is later, a court may order that no final disposition of the
decedent’s remains take place until a final determination is made on the
petition. Notice to each person with equal or higher precedence than the


                                     121
petitioner to the right to dispose of the decedent’s remains and to his
attorney if known and to the funeral home or other institution where the
body is being held must be provided concurrently with the filing of the
petition. A suitable bond may be required by the court.
       (1) If the court determines that clear and convincing evidence
establishes enduring estrangement, incompetence, contrary intent or waiver
and agreement, the court shall enter an appropriate order regarding the final
disposition which may including appointing an attorney in fact to arrange the
final disposition, with reasonable costs chargeable to the estate.
      (2) If two or more persons with equal standing as next of kin disagree
on disposition of the decedent’s remains, the authority to dispose shall be
determined by the court, with preference given to the person who had the
closest relationship with the deceased.
       (3) If the court determines that the petition is not supported by a
clear and convincing evidence, the court may award attorney fees. An
award of attorney fees shall constitute a setoff against any claim by the
petitioner against the estate.
      (e) DEFINITIONS. – As used in this section, the following words
and phrases shall have the meanings given o them in this subsection:
       “Contrary intent.” An explicit and sincere expression, either verbal or
written, of a decedent adult or emancipated minor prior to death and not
subsequently revoked that a person other than the one authorized by this
section determine the final disposition of his remains.
       “Enduring estrangement.” A physical and emotional separation from
the deceased at the time of death of the person authorized by this section to
determine the final disposition of the decedent’s remains, which has existed
for a period of time that clearly demonstrates an absence of close affection,
trust and regard for the deceased.
       “Next of kin.” The spouse and relatives by blood of the deceased in
order that they be authorized to succeed to the deceased’s estate under
Chapter 21 (relating to intestate succession) as long as the person is an adult
or an emancipated minor.


RHODE ISLAND


                                     122
Case Law                 There appears to be no relevant case law.
Statutory Law
Title 5
Businesses and Professions
Chapter 5-33.2
Funeral Director/Embalmer Funeral Service Establishments
Section 5-33.2-24

§ 5-33.2-24 Proper authority for funeral arrangements and disposition
of human remains. – Every licensed funeral director/embalmer, licensed
funeral establishment, licensed crematory, and cemetery shall comply with
the following rules with respect to property authority for funeral
arrangements and disposition of human remains:

(1) If a licensed funeral establishment is a party to a funeral services
contract, as defined in § 5-33.102, for the benefit of a deceased person, only
when executed by the principal, him or herself and the contract is still in
effect at the time of that person’s death, the terms of that contract shall
control the nature of the funeral goods and services to be provided, the
manner in which funeral services are to be conducted for the deceased, and
the final disposition of the deceased person’s remains to the full extent
provided in that contract. When the contract is executed by the principal,
him or herself, and specifies cremation as the chosen disposition, the
contract is considered sufficient legal authorization for cremation. No
licensed funeral establishment, licensed crematory, or cemetery nor any of
its agents or employees, may cancel or materially alter any of the
arrangements specified in that contract, even if requested to do so by a
member of the deceased person’s family or a funeral planning agent
designated pursuant to chapter 33.3 of this title unless compliance with the
terms of the original contract would result in a violation of any applicable
federal, state, or local law or regulation, notwithstanding the provisions of
this chapter.


(2) To the extent that there is no funeral services contract in effect at the
time of death for the benefit of the deceased person, indicating the wishes of
the deceased person with respect to the nature of the funeral goods and
services to be provided, the manner in which funeral services are to be


                                     123
conducted for the deceased, or the final disposition of the deceased person’s
remains, then the funeral establishment and its agents and employees shall
follow the directions of the deceased person’s survivors, in the following
order of priority:

      (i) An agent designated pursuant to chapter 33.3 of this title, if any;
      (ii) The surviving spouse of the deceased;
      (iii) The surviving adult children of the deceased;
      (iv) The surviving parent(s) of the deceased;
      (v) The surviving brother(s) or sister(s) of the deceased;
      (vi) The surviving adult niece(s) or nephew(s) of the deceased;
      (vii) The guardian of the person of the deceased at the time of his or
             her death.

3)      All licensed funeral directors/embalmers, licensed funeral
establishments, licensed crematories, cemeteries, and all their agents and
employees shall be held harmless, and shall not be subject to civil suit, either
as individual(s), partnership(s) or corporation(s) for complying with the
provisions of this chapter.

TITLE 5
Businesses and Professions
Chapter 5-33.3
Funeral Planning Agent Designation
Section 5-33.1

§ 5-33.1 Title. – This act may be known as the “Funeral Planning Agent
Designation Act.”

§ 5-33.3-2 Definitions. – As used in this chapter;

(a) “Funeral planning agent” means a person who is at least eighteen (18)
years of age, who has been duly and lawfully designated, and who has
accepted the designation, to act for the principal, and who has authority and
responsibility to make all arrangements, regarding funeral preparation,
planning, the nature of the funeral goods and services to be provided, the
manner in which funeral services are to be conducted, burial, and/or the
disposition of the principal’s remains, including cremation, upon the death
of the principal. The funeral planning agent may be a relative or a non-
relative of the principal, except as otherwise provided for in § 5-33.3-3(d).

                                      124
(b) “Principal” means the person designating another individual or
individuals to serve as his or her funeral planning agent upon the person’s
death.

(c) “Relative” means any person defined pursuant to the provisions of § 5-
33.2-24(2)(ii) – (2)(vii).

5-33.3-3 Designation of funeral planning agent. – (a) Any individual who
is at least eighteen (18) years of age and of sound mind is allowed to
designate a primary funeral planning agent and alternate agent, if they wish.

(b) All health care providers, as licensed under the provisions of chapter 29
or 37 of this title, all health dare facilities, as defined in chapter 17 of title
23, all funeral directors/embalmers and funeral service establishments as
defined in chapter 33.2 of this title, and all crematories and cemeteries, as
well as their agents and employees shall be required to comply with all of
the provisions of this act.

(c) The individual making the designation pursuant to subsection (a) of this
section shall designate a primary agent, but shall not be required to designate
an alternate agent. No person so designated as the funeral planning agent
shall be required to take on the responsibilities of said designation if they are
unwilling incapable of doing so.

(d) No person may act as a primary funeral planning agent or alternate agent
for more than one non-relative at any one time except that a person may
serve as a funeral planning agent to any and all of their own relatives and
any one non-relative simultaneously. The designated agent or alternate
agent shall sign the designation accepting the appointment. A person
accepting said appointment shall assume ultimate responsibility for ensuring
full payment of all expenses and costs connected to the funeral of the
principal from the principal’s resources, or in the event the principal’s
resources are insufficient to ensure full payment, from the agent’s own
personal financial resources.

(e) All individuals, facilities, and establishments listed in subsection (b) of
this section shall be held harmless, and shall not be subject to civil suit,
either as individuals(s), partnership(s) or corporation(s) for complying with
the provisions of this chapter.

                                       125
§ 5-33.3-4 Form of designation. (a) The designation provided for in
section 2-33.3-3 may be in substantially the following form:

I (Principal), do hereby name and designate (Primary Agent) as my primary
funeral planning agent, or if he/she is unwilling or incapable (Alter nate
Agent) as my alternate funeral planning agent, who shall have the sole
responsibility and authority to make any and all arrangements and decisions
regarding my funeral preparation and planning, burial or disposition of my
remains, including cremation, upon my death, pursuant to the provisions of
5-33.2-24. By signing this document, the aforementioned agent(s) agree to
ensure payment for all outstanding expenses related to my funeral. The
agent further certifies that if I am a non-relative to the agent, then I am the
only non-relative for whom the agent is serving as a funeral planning agent.
This document shall revoke and shall make null and void any and all
previous designations of a funeral planning agent.

Witness:                                      Principal:

_____________________                         _____________________


Primary Agent:                                Alternate Agent:

_____________________                         ______________________

Address:                                      Address:

_____________________                         ______________________

                          (JURAT)

(b) Upon the proper and complete execution of a funeral planning agent
designation form, a signed notarized original thereof shall be given to the
principal executing the form, the primary funeral planning agent, and the
alternate funeral planning agent, if any.

(c) The principal is encouraged to review in detail his or her specific wishes
regarding the nature of the funeral goods and services to be provided, the


                                     126
manner in which funeral services are to be conducted, and/or the disposition
of his or her remains with their funeral planning agent(s).

(d) This chapter shall not be construed to prohibit the participation of other
individuals in the funeral planning process as well as the funeral itself. No
individuals shall be required to designate a funeral planning agent under the
provisions of this chapter.


SOUTH CAROLINA
Case Law                  There appears to be no relevant case law.
Statutory Law
Cremation Authorizations and Procedures
32-8-320. Persons who may serve as a decedent's agent; authorize
cremation.

   TITLE 32, Chapter 8, Section 320 CONTRACTS AND AGENTS
       (A) In the following order of priority these persons may serve as a
decedent's agent and in the absence of a preneed cremation authorization
may authorize cremation of the decedent:
       (1) the person designated as agent for this purpose by the decedent in
a will or other verified and attested document;
       (2) the spouse of the decedent at the time of the decedent's death;
       (3) the decedent's surviving adult children;
       (4) the decedent's surviving parents;
       (5) the persons in the next degree of kinship under the laws of descent
and distribution to inherit the estate of the decedent.
       (B) In the absence of a person serving as a decedent's agent pursuant
to subsection (A), the following may serve as an agent and may authorize a
decedent's cremation:
    (1) a person serving as executor or legal representative of the decedent's
estate and acting according to the decedent's written instructions;
       (2) a public administrator, medical examiner, coroner, state appointed
guardian, or other public official charged with arranging the final disposition
of the decedent if the decedent is indigent or if the final disposition is the
responsibility of the State or an instrumentality of the State.
       (C) If a dispute arises among persons of equal priority, as provided for

                                     127
in subsection (A), concerning the cremation of a decedent, the matter must
be resolved by order of the probate court.

Note: This is one of the few instances in which “a person serving as
executor or legal representative of the decedent's estate and acting according
to the decedent's written instructions” can serve as an agent for the purpose
of dealing with funeral arrangements. The statute does not refer to a person
named in the decedent’s will, which could cover the situation in which the
will had been identified but had not been probated. It would seem that, by
the time that the executor or legal representative has been appointed by the
court, it is likely that the decedent will already have been buried.

It would appear that, in South Carolina, a testator should specify in his will
that the person named as his executor should also serve to handle his funeral
and disposal arrangements.


SOUTH DAKOTA

Case Law           There appears to be no relevant case law.

Statutory Law
Title 24, Chapter 26, Section 1 Personal right to direct disposition of body
and bodily parts – Inconsistent statutes not applicable. Every person has the
right to direct the manner in which his body or any part thereof shall be
disposed of after his death, and to direct the manner in which any part of his
body which becomes separated therefrom during his lifetime shall be
disposed of. The provisions of §§ 34-26-4 to 34-26-7, inclusive, and of
§§ 34-26-14 to 34-26-19, inclusive, do not apply where such person has
given directions for the disposal of his body or any part thereof inconsistent
with those provisions.

TENNESSEE

Case Law      No relevant case law was found.

Statutory Law

                                     128
Tennessee Code: Title 34 Guard ianship; Chapter 6 Power of Attorney; Part
1 Uniform Durable Power of Attorney Act Section (22)
An attorney in fact may “make advanced arrangements for the principal’s
funeral and burial, including the purchase of a burial plot and marker, if the
principal has not already done so.”

Title 34, Chapter 6, Section 204

       Subject to any limitations in the durable power of attorney for health
care, the attorney in fact designated in such durable power of attorney may
make health care decisions for the principal, before or after the death of the
principal, to the same extent as the principal could make health care
decisions for such principal if the principal had the capacity to do so,
including: (3) Directing the disposition of remains pursuant to title 68,
chapter 4.

Note: Granting the attorney in fact the power to direct the funeral
arrangements and disposition of the body is certainly a very simple way to
handle the subject.



TEXAS

Case Law           It appears that there is no relevant case law.

Statutory Law
HEALTH & SAFETY CODE
SUBTITLE C. CEMETERIES AND CREMATORIES
CHAPTER     711. GENERAL PROVISIONS RELATING                               TO
CEMETERIES

SUBCHAPTER A. GENERAL PROVISIONS
§ 711.002. DISPOSITION OF REMAINS; DUTY TO INTER.

(a) Unless a decedent has left directions in writing for the disposition of the
decedent's remains as provided in Subsection (g), the following persons, in

                                     129
the priority listed, have the right to control the disposition, including
cremation, of the decedent's remains, shall inter the remains, and are liable
for the reasonable cost of interment:




                                    130
      (1) the person designated in a written instrument signed by the
decedent;
      (2) the decedent's surviving spouse;
      (3) any one of the decedent's surviving adult children;
      (4) either one of the decedent's surviving parents;
      (5) any one of the decedent's surviving adult siblings; or
      (6) any adult person in the next degree of kinship in the order named
by law to inherit the estate of the decedent.
      (b) The written instrument referred to in Subsection (a)(1)shall be in
substantially the following form:

APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF
REMAINS

      I,_____________________________________________________,
(your name and address)
being of sound mind, willfully and voluntarily make known my desire
hat, upon my death, the disposition of my remains shall be controlled
by__________________________________________________
                                      (name of agent)

in accordance with Section 711.002 of the Health and Safety Code and, with
respect to that subject only, I hereby appoint such person as my agent
(attorney-in-fact).

      All decisions made by my agent with respect to the disposition of my
remains, including cremation, shall be binding.

SPECIAL DIRECTIONS:
      Set forth below are any special directions limiting the power granted
to my agent:


_____________________________________________________________


_____________________________________________________________

AGENT:
    Name:__________________________________________________

                                    131
       Address:_________________________________________________
       Telephone Number:________________________________________
       Acceptance of Appointment:________________________________
(signature of agent)

      Date of Signature:________________________________________

SUCCESSORS:
      If my agent dies, becomes legally disabled, resigns, or refuses to act, I
hereby appoint the following persons (each to act alone and successively, in
the order named) to serve as my agent (attorney-in-fact) to control the
disposition of my remains as authorized by this document:
      1. First Successor
      Name:___________________________________________________
      Address:_________________________________________________
      Telephone Number:________________________________________
      Acceptance of Appointment:________________________________
                               (signature of first successor)
      Date of Signature:________________________________________
      2. Second Successor
      Name:___________________________________________________
_
      Address:_________________________________________________
      Telephone Number:________________________________________
      Acceptance of Appointment:________________________________
                              (signature of second successor)
      Date of Signature:________________________________________

DURATION:
    This appointment becomes effective upon my death.

PRIOR APPOINTMENTS REVOKED:
      I hereby revoke any prior appointment of any person to control the
disposition of my remains.

RELIANCE:
       I hereby agree that any cemetery organization, business operating a
crematory or columbarium or both, funeral director or embalmer, or funeral
establishment who receives a copy of this document may act under it. Any
modification or revocation of this document is not effective as to any such

                                     132
party until that party receives actual notice of the modification or revocation.
No such party shall be liable because of reliance on a copy of this document.

ASSUMPTION:
      THE AGENT, AND EACH SUCCESSOR AGENT, BY
ACCEPTING THIS APPOINTMENT, ASSUMES THE OBLIGATIONS
PROVIDED IN, AND IS BOUND BY THE PROVISIONS OF, SECTION
711.002 OF THE HEALTH AND SAFETY CODE.

               Signed this ________ day of _____________________,
19___.

      __________________________
                                              (your signature)

State of ____________________

County of ___________________
     This document was acknowledged before me on ______ (date) by
_____________________________ (name of principal).
                          _________________________________
                           (signature of notarial officer)

(Seal, if any, of notary)
                              _________________________________
                                         (printed name)
                                    My commission expires:
                              _________________________________
       (c) A written instrument is legally sufficient under Subsection (a)(1)
if the wording of the instrument complies substantially with Subsection (b),
the instrument is properly completed, the instrument is signed by the
decedent, the agent, and each successor agent, and the signature of the
decedent is acknowledged. Such written instrument may be modified or
revoked only by a subsequent written instrument that complies with this
subsection.
       (d) A person listed in Subsection (a) has the right, duty, and liability
provided by that subsection only if there is no person in a priority listed
before the person.
       (e) If there is no person with the duty to inter under Subsection (a)
and:

                                      133
               (1) an inquest is held, the person conducting the inquest shall
inter the remains; and
               (2) an inquest is not held, the county in which the death
occurred shall inter the remains.
        (f) A person who represents that the person knows the identity of a
decedent and, in order to procure the disposition, including cremation, of the
decedent's remains, signs an order or statement, other than a death
certificate, warrants the identity of the decedent and is liable for all damages
that result, directly or indirectly, from that warrant.
        (g) A person may provide written directions for the disposition,
including cremation, of the person's remains in a will, a prepaid funeral
contract, or a written instrument signed and acknowledged by such person.
The directions may govern the inscription to be placed on a grave marker
attached to any plot in which the decedent had the right of sepulture at the
time of death and in which plot the decedent is subsequently interred. The
directions may be modified or revoked only by a subsequent writing signed
and acknowledged by such person. The person otherwise entitled to control
the disposition of a decedent's remains under this section shall faithfully
carry out the directions of the decedent to the extent that the decedent's
estate or the person controlling the disposition are financially able to do so.
        (h) If the directions are in a will, they shall be carried out
immediately without the necessity of probate. If the will is not probated or
is declared invalid for testamentary purposes, the directions are valid to the
extent to which they have been acted on in good faith.
        (i) A cemetery organization, a business operating a crematory or
columbarium or both, a funeral director or an embalmer, or a funeral
establishment shall not be liable for carrying out the written directions of a
decedent or the directions of any person who represents that the person is
entitled to control the disposition of the decedent's remains.
        (j) In the absence of evidence of a contrary intent, it is presumed that
a married woman directs that her name, as it appears on the grave marker for
the plot in which she is interred, include the same last name she used at the
time of her death.
        (k) Any dispute among any of the persons listed in Subsection (a)
concerning their right to control the disposition, including cremation, of a
decedent's remains shall be resolved by a court of competent jurisdiction. A
cemetery organization or funeral establishment shall not be liable for
refusing to accept the decedent's remains, or to inter or otherwise dispose of
the decedent's remains, until it receives a court order or other suitable
confirmation that the dispute has been resolved or settled.

                                      134
TEXAS PROBATE CODE CHAPTER 5 SECTION 109
§ 109. Eligible Applicants for Emergency Intervention

A person qualified to serve as an administrator under Section 77 of this code
may file an emergency intervention application.

§ 110. Requirements for Emergency Intervention

An applicant may file an emergency application with the court under Section
108 of this code only if an application has not been filed and is not pending
under Section 81, 82, 137, or 145 of this code and the applicant:

(1) needs to obtain funds for the funeral and burial of the decedent; or

(2) needs to gain access to rental accommodations in which the decedent's
personal property is located and the applicant has been denied access to
those accommodations.

§ 111. Contents of Emergency Intervention Application for Funeral and
Burial Expenses

(a) An application for emergency intervention to obtain funds needed for a
decedent's funeral and burial expenses must be sworn and must contain:

(1) the name, address, social security number, and interest of the applicant;

(2) the facts showing an immediate necessity for the issuance of an
emergency intervention order under this section by the court;

(3) the date of the decedent's death, place of death, decedent's residential
address, and the name and address of the funeral home holding the
decedent's remains;

(4) any known or ascertainable heirs and devisees of the decedent and the
reason:

(A) the heirs and devisees cannot be contacted; or

(B) the heirs and devisees have refused to assist in the decedent's burial;

                                      135
(5) a description of funeral and burial procedures necessary and a statement
from the funeral home that contains a detailed and itemized description of
the cost of the funeral[ and burial procedures; and

(6) the name and address of an individual, entity, or financial institution,
including an employer, that is in possession of any funds of or due to the
decedent, and related account numbers and balances, if known by the
applicant.

(b) The application shall also state whether there are any written instructions
from the decedent relating to the type and manner of funeral or burial the
decedent would like to have. The applicant shall attach the instructions, if
available, to the application and shall fully comply with the instructions. If
written instructions do not exist, the applicant may not permit the decedent's
remains to be cremated unless the applicant obtains the court's permission to
cremate the decedent's remains.


UTAH

Case Law                  There appears to be no case law on point.

Statutory Law

UTAH CODE – TITLE 58 – CHAPTER 9                     FUNERAL SERVICES
LICENSING ACT

58-9-602. Determination of control of disposition.
    The right and duty to control the disposition of a deceased person,
including the location and conditions of the disposition, vest in the following
degrees of relationship in the order named:
    (1) a person designated in a written instrument, excluding a power of
attorney that terminates at death under Sections 75-5-501 and 75-5-502, if
the written instrument contains:
    (a) the name and address of the decedent;
    (b) the name and address of the person designated under this Subsection
(1);


                                     136
   (c) the signature of the decedent;
   (d) the signatures of at least two unrelated individuals who are not the
person designated under this Subsection (1), each of whom signed within a
reasonable time after witnessing the signing of the form by the decedent; and
   (e) the date or dates the written instrument was prepared and signed;
   (2) the surviving, legally recognized spouse of the decedent;
   (3) the surviving child or the majority of the surviving children of the
decedent over the age of 18;
   (4) the unanimous consent of the surviving parent, parents, or lawful
custodian of the decedent;
   (5) the person or persons in the next degree of succession under Title 75,
Chapter 2, Intestate Succession and Wills;
   (6) any public official charged with arranging the disposition of deceased
persons;
   (7) a person or persons whom the funeral service director reasonably
believes is entitled to control the disposition; and
   (8) in the absence of any person under Subsections (1) through (7), any
person willing to assume the right and duty to control the disposition.

VERMONT

Case Law                 There appears to be no case law on point.

Statutory Law

18 V.S.A. PART 10, CHAPTER 231: ADVANCE DIRECTIVES FOR
HEALTH CARE AND DISPOSITION OF REMAINS

      § 9701 (16)

       (16) “Interested individual” means:
       (A) the principal’s spouse, adult child, parent, adult sibling, adult
grandchild, reciprocal beneficiary, or clergy person; or
       (B) any adult who has exhibited special care and concern for the
principal and who is personally familiar with the principal’s values.

       § 9702. Advance Directive
        (a) An adult may do any or all of the following in an advance
directive:

                                    137
       (1) except as provided in subsection (c), appoint one or more agents
and alternate agents to whom authority to make health care decisions is
delegated and specify the scope of such authority;
       (2) affirm that the agent and alternate agents have been notified of
and have accepted the appointment and will be given copies of the advance
directive;
       (3) specify a circumstance or condition, which may be unrelated to
the principal’s capacity, which, when met, makes the authority of an agent
effective or ineffective, and may specify the manner in which the condition
shall be determined to have been met;
       (4) provide that the advance directive will become effective upon
execution;
       (5) direct the type of health care desired or not desired by the
principal, which may include instructions regarding transfer from home,
hospitalization, and specific treatments that the principal desires or rejects
when being treated for a mental or physical condition or disability;
       6) execute a provision under subsection 9707(h) of this title which
permits the agent to authorize or withhold health care over the principal’s
objection in the event the principal lacks capacity;
        (7) direct which life sustaining treatments, as defined in subdivision
(17) of section 9701 of this title, whether emergency, short-term, or long-
term, and including nutrition and hydration administered by medical means,
are desired or not desired by the principal;
       (8) direct which life sustaining treatment the principal would desire
or not desire if the principal is pregnant at the time an advance directive
becomes effective;
       (9) identify those persons whom the principal does not want to serve
as his or her decision-maker, or those adults or minors with whom the agent
shall or shall not consult or to whom the agent is or is not authorized to
provide information regarding the principal’s health care;
       (10) identify those interested individuals, otherwise qualified to bring
an action under section 9718 of this title, who shall not have authority to
bring an action under that section;
       (11) authorize release to named individuals in addition to the agent of
health information pursuant to HIPAA;
       (12) provide any other direction that the principal desires to give
regarding the principal’s future health care or personal circumstances;
        (13) identify a preferred primary care clinician and affirm that the
clinician has been notified;


                                     138
       (14) nominate one or more individuals to serve as the principal’s
guardian if a guardian should at some later time need to be appointed, or
identify those individuals the principal does not want to serve as guardian;
       (15) make, limit, or refuse to make an anatomical gift pursuant to
chapter 109 of this title;
        (16) direct the manner of disposition of the principal’s remains and
the funeral goods and services to be provided;
       (17) identify a pre-need contract entered into with a funeral director,
crematory, or cemetery; and
       (18) except as provided in subsection (d) of this section, appoint an
individual to make or refuse to make an anatomical gift, and to arrange for
the disposition of the principal’s remains, including funeral goods and
services.
       (b) The absence of an advance directive or of any specific instruction
in an advance directive shall have no effect on determining the principal’s
intent or wishes regarding health care or any other matter.
       (c) The principal’s health care provider may not be the principal’s
agent. Unless related to the principal by blood, marriage, civil union or
adoption, an agent may not be an owner, operator, employee, agent, or
contractor of a residential care facility, a health care facility, or a
correctional facility in which the principal resides.
       (d) Unless related to the principal by blood, marriage, civil union or
adoption, an individual may not exercise the authority pursuant to an
advance directive for disposition of remains, anatomical gifts, or funeral
goods and services while serving the interests of the principal in one of the
following capacities:
       (1) a funeral director or employee of the funeral director;
        (2) a crematory operator or employee of the crematory operator; or
       (3) a cemetery official or employee of the cemetery.

        § 9703. Form and Execution
        (a) An adult with capacity may execute an advance directive at any
time.
       (b) The advance directive shall be dated, executed by the principal or
by another individual in the principal’s presence at the principal’s express
direction if the principal is physically unable to do so, and signed in the
presence of two or more witnesses at least 18 years of age, who shall sign
and affirm that the principal appeared to understand the nature of the
document and to be free from duress or undue influence at the time the
advance directive was signed.

                                     139
       (c) Neither the agent appointed by the principal nor the principal’s
spouse, reciprocal beneficiary, parent, adult sibling, adult child, or adult
grandchild may witness the advance directive.
       (d) An advance directive shall not be effective if, at the time of
execution, the principal is being admitted to or is a resident of a nursing
home as defined in section 7102 of Title 33 or a residential care facility
unless an ombudsman, a recognized member of the clergy, an attorney
licensed to practice in this state, or a probate court designee signs a
statement affirming that he or she has explained the nature and effect of the
advance directive to the principal. It is the intent of this subsection to ensure
that residents of nursing homes and residential care facilities are willingly
and voluntarily executing advance directives.
       (e) An advance directive shall not be effective if, at the time of
execution, the principal is being admitted to or is a patient in a hospital,
unless an ombudsman, a recognized member of the clergy, an attorney
licensed to practice in this state, a probate court designee, or an individual
designated under subsection 9709(c) of this title by the hospital signs a
statement that he or she has explained the nature and effect of the advance
directive to the principal.
       (f) A durable power of attorney for health care, terminal care
document, or advance directive executed prior to the enactment of this
chapter shall be a valid advance d irective if the document complies with the
statutory requirements in effect at the time the document was executed or
with the provisions of this chapter.

       § 9712. Obligation of Funeral Directors, Crematory; Operators,
Cemetery Officials, and Individuals appointed to arrange for the Disposition
of the Principal's Remains
       (a) An individual appointed to arrange for the disposition of the
principal’s remains shall make those decisions based upon the principal’s
specific instructions contained in an advance directive or pre-need contract
entered into with a funeral director, crematory operator, or cemetery official,
or, if there are no such instructions, in accordance with the principal’s
wishes expressed orally or the knowledge of the agent or guardian of the
principal’s values or religious or moral beliefs.
       (b) Any funeral director, crematory operator, or cemetery official
having knowledge of a principal’s advance directive shall follow the
advance directive and any instructions of the individual appointed in an
advance directive to arrange for the disposition of the principal’s remains,
except:

                                      140
       (1) if any instruction would cause the director, operator, or official to
violate the standards of professional conduct required by a professional
licensing board or agency or any criminal law, the director, operator, or
official shall notify the individual appointed that the director, operator, or
official cannot follow the instruction; or
       (2) if the principal’s estate is without sufficient funds to dispose of
the remains or provide funeral goods and services in accordance with the
advance directive, the disposition shall occur in a manner approximating the
principal’s wishes to the extent it is financially possible.
       (c) Every funeral director, crematory operator, and cemetery official
shall develop systems to ensure that a principal’s advance directive is
promptly available when services are to be provided, including that the
existence of an advance directive is prominently noted on any file jacket or
folder, and that a note is entered into any electronic database of the director,
operator, or official.
       (d) In the event the principal’s instructions in an advance directive
regarding disposition of remains or for funeral goods and services are in
apparent conflict with a contract entered into by the principal for the
disposition of remains, funeral goods, or services, the most recent document
created by the principal shall be followed to the extent of the conflict.
Nothing in this subsection shall be construed as limiting any other available
remedies.

       § 1303. Requisites of a valid reciprocal beneficiaries relationship
For a reciprocal beneficiaries relationship to be established in Vermont, it
shall be necessary that the parties satisfy all of the following criteria:
       (1) Be at least 18 years of age and competent to enter into a contract.
       (2) Not be a party to another reciprocal beneficiaries relationship, a
civil union or a marriage.
       (3) Be related by blood or by adoption and prohibited from
establishing a civil union or marriage with the other party to the proposed
reciprocal beneficiaries relationship.
       (4) Consent to the reciprocal beneficiaries relationship without force,
fraud or duress. (Added 1999, No. 91 (Adj. Sess.), § 29.)

       § 1304. Establishing a reciprocal beneficiaries relationship
Two persons who meet the criteria set forth in section 1303 of this title may
establish a reciprocal beneficiaries relationship by presenting a signed,
notarized declaration of a reciprocal beneficiaries relationship to the
commissioner and paying a filing fee of $10.00. The commissioner shall file

                                     141
the declaration and give the parties a certificate of reciprocal beneficiaries
relationship showing that the declaration was filed in the names of the
parties. (Added 1999, No. 91 (Adj. Sess.), § 29.)

       § 1305. Dissolution of a reciprocal beneficiaries relationship
       (a) Either party to a reciprocal beneficiaries relationship may
terminate the relationship by filing a signed notarized declaration with the
commissioner.
       (b) Within 60 days of the filing of the declaration and payment of a
filing fee of $10.00 by a party to a reciprocal beneficiaries relationship, the
commissioner shall file the declaration and issue a certificate of termination
of a reciprocal beneficiaries relationship to each party of the former
relationship.
       (c) If a party to a reciprocal beneficiaries relationship enters into a
valid civil union or a marriage, the reciprocal beneficiaries relationship shall
terminate and the parties shall no longer be entitled to the benefits,
protections and responsibilities of the reciprocal beneficiaries relationship.
(Added 1999, No. 91 (Adj. Sess.), § 29.)

Note: At least one other state has a provision for a relationship outside of
marriage to be recognized in the context of an advance directive.


VIRGINIA

Case Law                  There appears to be no case law on point.

Statutory Law
      § 54.1-2825. Person to make arrangements for disposition of remains.
      Any person may designate in a signed and notarized writing, which
has been accepted in writing by the person so designated, an individual who
shall make arrangements for his burial or the disposition of his remains,
including cremation, upon his death.

Note: Presumably Virginia relies on the common law in the absence of a
written directive.



                                      142
Washington

Case Law                   There appears to be no case law on point.

Statutory Law
Revised Code of Washington State, title 68, Chapter 68.50.160 provides:

Right to control disposition of remains – Liability of funeral establishment
or cemetery authority – Liability for cost.

      (1) A person has the right to control the disposition of his or her own
remains without the predeath or postdeath consent of another person. A
valid written document expressing the decedent’s wishes regarding the place
or method of disposition of his or her remains, signed by the decedent in he
presence of a witness, is sufficient legal authorization for the procedures to
be accomplished.

       (2) Prearrangements that are prepaid, or filed with a licensed funeral
establishment or cemetery authority, under RCW 18.39.280 through
18.39.345 and chapter 68.46 RCW are not subject to cancellation or
substantial revision by survivors. Absent actual knowledge of contrary legal
authorization under this section, a licensed funeral establishment or
cemetery authority shall not be held criminally nor civilly liable for acting
upon such prearrangements.

       (3) If the decedent has not made prearrangements as set forth un
subsection (2) of this section or the costs of executing the decedent’s wishes
regarding the disposition of the decedent’s remains exceeds a reasonable
amount or directions have not been given by he decedent, the right to control
the disposition of the remains of a deceased person vests in, and the duty of
disposition and the liability for he reasonable cost of preparation, care, and
disposition of such remains devolves upon the following in the order named:

      (a)   The surviving spouse.
`     (b)   The surviving adult children of the decedent.
      (c)   The surviving parents of the decedent.
      (d)   The surviving siblings of the decedent.



                                      143
      (e) A person acting as a representative of the decedent under the
signed authorization of the decedent.

Note: In Peterson et als v Carr et al, Washington Court of Appeals No.
23322-3-11 the Court noted that a will, together with a form donating the
decedent’s body to a hospital, was sufficient to satisfy the statute.

This statute illustrates the cleverness with which statutory drafters
sometimes hide information about disposition of dead bodies.


West Virginia

Case Law                 There appears to be no case law on point.

Statutory Law
Title 6, §6-1-24 Authorized representatives; right to control and duty of
disposition.

24.1 Advance directives, medical power of attorney and will of decedent.

       A person may direct the preparation for, type, or place of his or her
own final disposition, either by oral or written instructions. The authorized
representative otherwise entitled to control the final disposition pursuant to
W. Va. Code §30-6-3 and this rule shall faithfully carry out the reasonable
and otherwise lawful directions of the decedent to the extent that the
decedent has provided resources for the purpose of carrying out the
directions. If the instructions are contained in a will, they shall be
immediately carried out, regardless of the validity of the will in other
respects or of the fact that the will may not be offered for or admitted to
probate until a later date, subject to other provisions of this chapter or any
other law of this state. If the instructions are contained in a valid medical
power of attorney document, they shall be immediately carried out, pursuant
to W. Va. Code §16-30-1 et seq. This subsection shall be administered and
construed so that the reasonable and lawful instructions of the decedent or
the person entitled to control the final disposition shall be faithfully and
promptly performed.



                                     144
      24.2 Determination of right to control and duty of disposition.

       The right to control the disposition of the remains of a deceased
person, including the location and conditions of final disposition, unless
other directions have been given by the decedent pursuant to subsection 24.1
of this section, vests in, and the duty of final disposition of the body
devolves upon, the following authorized representative in the order named:

       24.2.1 the person appointed in a dated written instrument signed by
the decedent. Written instrument includes, but is not limited to, a health care
directive or medical power of attorney executed pursuant to W. Va. Code
§16-30-1 et seq. of the West Virginia Health Care decisions Act. Written
instrument does not include a durable or nondurable power of attorney
which terminates on the death of the principal pursuant to W. Va. Code §39-
4-1 et seq. of the Uniform Durable Power of Attorney Act.

      24.2.2. the surviving, legally recognized spouse;

       24.2.3. the surviving biological or adopted child or children of the
decedent over the age of majority, provided that, in the absence of actual
knowledge to the contrary, a funeral director may rely on instructions given
by the child or children that they are the sole surviving child, or that they
constitute a majority of the surviving children;

     24.2.4       the surviving parent or parents of the decedent or other
permanent legal guardian of the decedent;

       24.2.5        the surviving biological or adopted sibling or siblings of
he decedent over the age of majority, provide that, in the absence of actual
knowledge to the contrary, a funeral director may rely on instructions given
by the sibling or siblings who represent that they are the sole surviving
sibling, or that they constitute a majority of the surviving siblings;

      24.2.6. the person or persons respectively in the next degree of
kinship in the order named by law to inherit the estate of the decedent; and

      24.2.7 the appropriate public or court authority, as required by law.

      For purposes of this subsection, the appropriate public or court
authority includes the county Department of Health and Human Resources

                                     145
of he county n which the death occurred if the person dies without apparent
financial means to provide for final disposition or the circuit court in the
county in which the death occurred.

      24.3 Estranged persons.

       When there is only one person in a degree of relationship to he
decedent described in subsections 24.2.1 through 24.2.7 of this section and a
circuit court, pursuant to subsection 24.5 of this section, determines that the
person and the decedent were estranged at the time of death, the right to
control and the duty of disposition shall devolve to the authorized
representative or representatives in the nest degree of relationship pursuant
to subsection 24.2. For purposes of this subsection, “estranged,” means
having a relationship characterized by mutual enmity, hostility, or
indifference,

      24.4 Refusal of right to control and duty of disposition.

       If a person or persons to whom the right to control and duty of
disposition devolve, pursuant to subsection 24.2 of this section, refuses to
accept or declines to act upon he right of duty, that right and duty shall pass
as follows:

       24.4.1 to another person or persons with the same degree of
relationship to the decednet as the person or persons refusing to accept or
declining to act; or

     24.1.2 to the person or persons in the next degree of relationship to the
decedent, pursuant to subsection 24.2.

      24.5 Disputes.

      24.5.1 When a dispute exists regarding the right to control or duty of
disposition, the parties in dispute or the funeral director may file a petition in
a county circuit court, requesting that the court make a determination in he
matter. the petition may be filed as follows:

      a. in the circuit court in the county of residence of the decedent or
      b. If the decedent resided in another state, in the county where the
funeral establishment is located.

                                       146
      24.5.2. Should the right to control and duty of disposition devolve to
more than one person with the same degree of relationship to the decedent
and those persons cannot, by majority vote, make a decision regarding
arrangements and final disposition and a circuit court has been petitioned to
make a determination, the court shall consider the following factors in
making its determination:

       a. the reasonableness, practicality, and resources available for
payment of the proposed arrangements and final disposition;
       b. the degree of the personal relationship between the decedent and
each of the persons in the same degree of relationship to the decedent;
       c. the expressed wishes and directions of the decedent and the extent
to which the decedent has provided resources for the purpose of carrying out
the wishes or direction; and
       d. the degree to which the arrangements and final disposition will
allow for participation by all who wish to pay respect to the decedent.

Also see, under the statute dealing with funeral directors, the following:

      TITLE 6
      §6-1-5      A licensee … shall not assume control of any dead body
without first gaining permission from the next of kin o their representatives,
or a medical examiner, health officer or other public official legally
authorized to give the permission to release the body.


Wisconsin

Case Law
In Remick et als vs. Cady, State of Wisconsin Court of Appeals District IV
(not yet official) James Wrosch signed a document entitled “Memorial
Directions” which indicated that he had contacted Voie Funeral Home to
request that he be cremated, and that he had asked James Cady to handle his
funeral arrangements and dispose of his ashes. The next of kin of Wrosch
signed forms authorizing the funeral home to transfer possession of the ashes
to Cady. They later wished to revoke the authorization and have Wrosch’s
sister deal with the ashes.


                                     147
The trial court held for Cady. The Court of Appeals reversed, referring to
the common law right to direct the disposition of the decedent’s final
remains and citing Holsen v. Heritage Mut. Ins. Co., 165 Wis. 2d 641, 478
N.W.2d 59 (Ct. App. 1991) for the rule that the next of kin would have a
common law right to direct the disposition of the decedent’s final remains.

Statutory Law            There appears to be no statute on point.


Wyoming

Case Law                 There appears to be no case law on point.

Statutory Law            There appears to be no statute on point.




                                    148

				
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