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					                                            Chapter 97
                                              2007 EDITION

Rights and Duties Relating to Cemeteries, Human Bodies
                 and Anatomical Gifts

               GENERAL PROVISIONS                          97.400    Disposal of newly created lots; disposition
97.010     Definitions                                               and use of proceeds from sale; failure of
                                                                     owner to perform duties
97.020     Exemption of certain organizations and
           cemeteries from certain sections of chap-       97.410    Right of adjacent lot owner upon vacation
           ter                                                       of way
97.030     Vested rights not acquired                      97.420    Effect of failure to object
97.040     Private family burial grounds                   97.430    Declaration of exercise of police power
                                                                     and right of eminent domain
                     AUTOPSIES                             97.440    Removal of dedication
97.082     Consent for certain autopsies; form             97.445    Vacating county interest in cemetery real
                                                                     property
         DISPOSITION OF HUMAN BODIES                       97.450    Discontinuance of cemetery and removal
97.110    Human remains not to be attached                           of remains and markers
97.120    Human remains to be deposited in accor-          97.460    Approval required prior to establishment
          dance with ORS 97.010 to 97.040, 97.110 to                 of cemetery or burial park
          97.450, 97.510 to 97.730, 97.810 to 97.920 and
          97.990                                                    SALES AND RIGHTS IN RESPECT
97.130    Right to control disposition of remains;                         OF CEMETERY PLOTS
          delegation                                       97.510    Sale and conveyance of plots by cemetery
97.145    Liability for failure to conform to written                authority
          instrument directing control of remains          97.520    Sale or offer to sell cemetery plot upon
97.150    Disposition of cremated remains; proce-                    promise of resale at financial profit
          dures; notice; actions against cemetery or       97.530    Commission, bonus or rebate for sale of
          funeral service providers                                  plot or services
97.153    Diagnostic or therapeutic radioisotopes in       97.540    Commission, bonus or rebate for recom-
          body                                                       mendation of cemetery
97.160    Duty of hospital or sanitarium to notify         97.550    Plots are indivisible
          before sending remains to undertaker;
          procedures                                       97.560    Presumption of sole ownership in grantee
                                                                     of plot
97.170    Disposition of body of indigent or child in
          custody of Department of Human Services          97.570    Spouse has vested right of interment
97.180    Period within which body may not be used         97.580    Divestiture of spouse′s right of interment
97.190    Post-mortem examination of body                  97.590    Transfer of plot or right of interment
97.200    Disposition of remains after educational         97.600    Descent of plot
          use thereof                                      97.610    Determining occupant of burial plot hav-
97.210    Exceptions to application of ORS 97.170 to                 ing coowners
          97.200; rules                                    97.620    Death of coowner; authorization to use
97.220    Disinterment                                               plot under directions of surviving owners
                                                           97.630    Family plots; order of occupation
            DEDICATION TO CEMETERY                         97.640    Waiver or termination of vested right of
                PURPOSES; PLATTINGS                                  interment
97.310     Survey and subdivision of land; map or          97.650    Limitations    upon    vested    right  of
           plat of mausoleum or columbarium; ac-                     interment
           cess easement
97.320     Filing map or plat and declaration of                       CEMETERY MANAGEMENT
           dedication of land to cemetery purposes
                                                           97.710    Power of cemetery to make rules and
97.330     When dedication is complete                               regulations
97.340     Effect of dedication                            97.720    Record of interments and cremations; in-
97.350     Dedication to cemetery purposes not in-                   spection
           valid                                           97.730    Gifts and bequests in trust for cemeteries
97.360     Resurvey and alteration in shape or size;
           vacation of streets, walks, driveways and                      INDIAN GRAVES AND
           parks and replatting into lots                                 PROTECTED OBJECTS
97.370     Fixing date of hearing; notice                  97.740    Definitions for ORS 97.740 to 97.760
97.380     Hearing; order allowing replatting              97.745    Prohibited acts; application; notice
97.390     Assessment of benefits and damages              97.750    Permitted acts; notice

Title 10                                             Page 1                                     (2007 Edition)
                           PROPERTY RIGHTS AND TRANSACTIONS

97.760     Civil action by Indian tribe or member;        97.937    Deposit of trust funds made by endow-
           time for commencing action; venue; dam-                  ment care cemeteries
           ages; attorney fees                            97.939    Prearrangement or preconstruction sales
                                                                    contracts; contents; delivery
         OREGON COMMISSION ON HISTORIC
                      CEMETERIES                          97.941    Prearrangement or preconstruction trust
                                                                    fund deposits
97.772     Definition of “historic cemetery”
                                                          97.942    Appointment of receiver; criteria
97.774     Oregon Commission on Historic Ceme-
           teries; terms                                  97.943    Distributions from prearrangement trust
                                                                    fund deposits
97.776     Commission members; nominations
                                                          97.944    Distributions from preconstruction trust
97.778     Chairperson; quorum; meetings                            fund deposits
97.780     Duties                                         97.945    Funeral and Cemetery Consumer Pro-
97.782     Listing of historic cemeteries; form                     tection Trust Fund; fee; rules
97.784     Executive secretary; support services          97.946    Advertising and marketing prohibitions
                                                          97.947    Examination of providers and master
                   CEMETERY CARE                                    trustees by director; subpoena power; de-
97.810     Endowment care and nonendowed care                       positions
           cemeteries                                     97.948    Grounds for discipline by director for vio-
97.820     Placing cemetery under endowed care;                     lation of ORS 97.923 to 97.949; suspension
           deposit; commingling endowment and                       and revocation of certificate or registra-
           special care funds; trustee or custodian                 tion; civil penalties; notification of board
           of fund                                        97.949    Notification by director to appropriate
97.825     Suits to enforce endowed care statutes;                  federal, state or local law enforcement
           attorney fees                                            officer of violation of ORS 97.923 to 97.949
97.830     Investment and reinvestment of principal                REVISED UNIFORM ANATOMICAL
           of endowed care funds; use and applica-                              GIFT ACT
           tion of income
                                                          97.951    Short title
97.835     Limitation of duties and liability of trus-
           tee                                            97.953    Definitions
97.840     Cemetery authority authorized to receive       97.955    Purpose of anatomical gift; persons au-
           and hold gifts of property; disposition of               thorized to make gift
           gifts                                          97.957    Methods of making anatomical gift before
97.850     Endowment and special care funds are                     death of donor
           charitable                                     97.959    Revocation or amendment of anatomical
97.860     Agreements for care                                      gift before death of donor
97.865     Application of ORS 97.810 to 97.865 to reli-   97.961    Refusal to make anatomical gift; effect of
           gious, county and city cemeteries                        refusal
97.870     Unused and uncared for portions of cem-        97.963    Effect of making, amending or revoking
           etery declared common nuisances                          anatomical gift
97.880     Resolution declaring a nuisance                97.965    Persons authorized to make anatomical
                                                                    gift of body or body part of decedent
97.890     Complaint
                                                          97.967    Methods for making, amending or revok-
97.900     Summons                                                  ing anatomical gift of body or body part
97.910     Disuse as prima facie evidence of aban-                  of decedent by authorized person
           donment                                        97.969    Authorized recipients of anatomical gifts;
97.920     Judgment declaring nuisance, authorizing                 purposes for which gift may be used
           abatement and creating and foreclosing         97.970    Search for document of anatomical gift
           lien                                                     or refusal; duty to send document or re-
                                                                    fusal to hospital
           PREARRANGEMENT SALES AND
              PRECONSTRUCTION SALES                       97.971    Delivery of document of gift or refusal not
                                                                    required; right to examine
97.923      Definitions for ORS 97.923 to 97.949
                                                          97.972    Rights and duties of procurement organ-
97.925      Purpose                                                 izations and others; authorized examina-
97.926      Rulemaking authority                                    tions
97.927      Applicability of ORS 97.923 to 97.949         97.973    Coordination of procurement and use of
                                                                    anatomical gifts
97.929      Exceptions to ORS 97.923 to 97.949
                                                          97.974    Immunity of persons acting in accordance
97.931      Registration of salesperson for endowment               with ORS 97.951 to 97.982
            care cemeteries, preconstruction sales
            and prearrangement sales; rules; back-        97.976    Law governing validity of document of
            ground check; civil penalties                           gift; presumption of validity
97.933      Certification of provider of prearrange-      97.977    Donor registry; duty of Department of
            ment or preconstruction sales; annual re-               Transportation to cooperate with donor
            ports; audits; fees                                     registry
97.935      Registration of master trustees; annual       97.978    Resolution of conflict between potential
            reports; annual audits; fees                            anatomical gift and advance directive
97.936      Emergency orders of suspension or re-         97.979    Cooperation between medical examiner
            striction                                               and procurement organization

Title 10                                            Page 2                                     (2007 Edition)
                CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS

97.980     Facilitation of anatomical gift from dece-   97.985    Transplants not covered by implied war-
           dent whose body is under jurisdiction of               ranty
           medical examiner
97.981     Purchase or sale of body parts prohibited             FEDERAL AID FOR CEMETERIES
97.982     Alteration of document of anatomical gift    97.987    Department of Transportation use of fed-
           prohibited                                             eral moneys for cemetery care
97.983     Relation to Electronic Signatures in
           Global and National Commerce Act                                  PENALTIES
                                                        97.990    Penalties
                 ANATOMICAL GIFTS
97.984     Liability of executor who carries out ana-   97.992    Penalties for ORS 97.937
           tomical gift                                 97.994    Penalties for ORS 97.931, 97.933 and 97.941




Title 10                                          Page 3                                     (2007 Edition)
           PROPERTY RIGHTS AND TRANSACTIONS




Title 10                Page 4                (2007 Edition)
             CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                97.010

           GENERAL PROVISIONS                         (11) “Cremated remains” means the re-
     97.010 Definitions. As used in ORS           mains of a cremated human body after com-
97.010 to 97.040, 97.110 to 97.450, 97.510 to     pletion of the cremation process.
97.730, 97.810 to 97.920, 97.923 to 97.949,           (12) “Cremation” means the technical
97.990 and 97.994:                                process, using direct flame and heat, that re-
     (1) “Burial” means the placement of hu-      duces human remains to bone fragments.
man remains in a grave or lawn crypt.                 (13) “Crematory” means a structure con-
     (2) “Burial park” means a tract of land      taining a retort for the reduction of bodies
for the burial of human remains, used, or in-     of deceased persons to cremated remains.
tended to be used, and dedicated for ceme-            (14) “Crypt” or “vault” means a space in
tery purposes.                                    a mausoleum of sufficient size used, or in-
     (3) “Burial right” means the right to use    tended to be used, to entomb uncremated
a grave, mausoleum, columbarium, ossuary          human remains.
or scattering garden for the interment or             (15) “Directors” or “governing body”
other disposition of human remains.               means the board of directors, board of trus-
     (4) “Cemetery” means a place:                tees or other governing body of a cemetery
     (a) Dedicated to and used, or intended to    association.
be used, for the permanent interment of hu-           (16) “Endowment care” means the gen-
man remains; and                                  eral care and maintenance of developed por-
     (b) That may contain a mausoleum, crypt      tions of a cemetery and memorials erected
or vault interment, a columbarium, ossuary,       thereon financed from the income of a trust
scattering garden or other structure or place     fund.
used or intended to be used for the interment         (17) “Entombment” means the placement
or disposition of cremated remains or any         of human remains in a crypt or vault.
combination of these structures or places.
                                                      (18) “Funeral merchandise” means per-
     (5) “Cemetery association” means a cor-      sonal property offered for sale or sold for use
poration or association authorized by its ar-     in connection with funeral services. “Fu-
ticles of incorporation to conduct the            neral merchandise” includes, but is not lim-
business of a cemetery, but does not include      ited to, acknowledgment cards, alternative
a corporation sole or a charitable,               containers, caskets, clothing, cremation con-
eleemosynary association or corporation.          tainers, cremation interment containers,
     (6) “Cemetery authority” means a person      flowers, memory folders, monuments, outer
who owns or controls cemetery lands or            burial containers, prayer cards, register
property, including but not limited to a cem-     books and urns.
etery corporation, association or corporation
sole.                                                 (19) “Funeral services” means services
                                                  customarily provided by a funeral service
     (7) “Cemetery business” and “cemetery        practitioner including, but not limited to,
purpose” are used interchangeably and mean        care and preparation of human remains for
any business or purpose requisite or incident     final disposition, professional services relat-
to, or necessary for establishing, maintain-      ing to a funeral or an alternative to a fu-
ing, operating, improving or conducting a         neral, transportation of human remains,
cemetery, interring human remains, and the        limousine services, use of facilities or equip-
care, preservation and embellishment of           ment for viewing human remains, visitation,
cemetery property.                                memorial services or services that are used
     (8) “Cemetery merchandise” means per-        in connection with a funeral or alternative
sonal property offered for sale or sold for use   to a funeral, coordinating or conducting fu-
in connection with the final disposition,         neral rites or ceremonies, and other services
memorialization or interment of human re-         provided in connection with a funeral, alter-
mains. “Cemetery merchandise” includes, but       native to a funeral or final disposition of hu-
is not limited to, an outer burial container      man remains.
and a memorial.
                                                      (20) “Grave” means a space of ground in
     (9) “Cemetery services” means services       a burial park used, or intended to be used,
provided by a cemetery authority for              for burial of the remains of one person.
interment or scattering, and installation of
cemetery merchandise.                                 (21) “Human remains” or “remains”
                                                  means the body of a deceased person in any
     (10) “Columbarium” means a structure or
room containing receptacles for permanent         stage of decomposition or after cremation.
inurnment of cremated remains in a place              (22) “Interment” means the disposition of
used, or intended to be used, and dedicated       human remains by inurnment, entombment
for cemetery purposes.                            or burial.

Title 10                                    Page 5                                (2007 Edition)
97.020                      PROPERTY RIGHTS AND TRANSACTIONS

     (23) “Inurnment” means the placement of                    97.020 Exemption of certain organiza-
cremated remains in a receptacle and the                   tions and cemeteries from certain
deposit of the receptacle in a niche.                      sections of chapter. (1) The provisions of
     (24) “Lot,” “plot” or “burial space”                  ORS 97.030, 97.120, 97.310 to 97.350, 97.360
means space in a cemetery owned by one or                  (1), 97.510 and 97.550 relating to private
more individuals, an association or fraternal              cemeteries do not apply to:
or other organization and used, or intended                     (a) Any religious or eleemosynary corpo-
to be used, for the permanent interment                    ration, church, religious society or denomi-
therein of the remains of one or more de-                  nation,    corporation     sole  administering
ceased persons. Such terms include and apply               temporalities of any church or religious so-
with like effect to one, or more than one,                 ciety or denomination or any cemetery that
adjoining grave, crypt, vault or niche.                    such entity organizes, controls or operates.
     (25) “Mausoleum” means a structure                         (b) Any county or city cemetery.
substantially exposed above ground for the                      (2) The provisions of ORS 97.810 to 97.865
entombment of human remains in crypts or                   relating to private cemeteries do not apply
vaults in a place used, or intended to be                  to:
used, and dedicated for cemetery purposes.                      (a) Any religious or eleemosynary corpo-
     (26) “Memorial” means a product, other                ration, church, religious society or denomi-
than a mausoleum or columbarium, used for                  nation,    corporation     sole  administering
identifying an interment space or for com-                 temporalities of any church or religious so-
memoration of the life, deeds or career of a               ciety or denomination or any cemetery that
decedent including, but not limited to, an                 such entity organizes, controls or operates,
ossuary, monument, marker, niche plate, urn                unless the cemetery authority for an entity
garden plaque, crypt plate, cenotaph, marker               described in this paragraph elects to subject
bench or vase.                                             itself to ORS 97.810 to 97.865.
     (27) “Niche” means a recess usually in a                   (b) Any county or city cemetery, unless
columbarium used, or intended to be used,                  the county or city elects to subject itself to
for the inurnment of the cremated remains                  ORS 97.810 to 97.865. [Amended by 1955 c.473 §1;
of one or more persons.                                    1997 c.167 §1]
     (28) “Ossuary” means a receptacle used                    97.030 Vested rights not acquired. No
for the communal placement of cremated re-                 cemetery authority or person having a right
mains without benefit of an urn or any other               of sepulture or any other right under ORS
container in which cremated remains may be                 97.010 to 97.040, 97.110 to 97.450, 97.510 to
commingled with other cremated remains                     97.730, 97.810 to 97.920 and 97.990 acquires
and are nonrecoverable.                                    any vested right by virtue thereof which the
     (29) “Plot owner” or “owner” means any                Legislative Assembly may not subsequently
person identified in the records of the ceme-              amend, alter or repeal.
tery authority as owner of the burial rights                   97.040 Private family burial grounds.
to a burial plot, or who holds a certificate               Except for ORS 97.730, 97.010 to 97.040,
of ownership conveyed from the cemetery                    97.110 to 97.450, 97.510 to 97.730, 97.810 to
authority of the burial rights in a particular             97.920 and 97.990 do not apply to private
lot, plot or space.                                        family burial grounds where lots are not of-
     (30) “Scattering” means the lawful                    fered for sale.
dispersion of cremated remains that need not                   97.050 [1977 c.183 §1; 1983 c.526 §4; 1985 c.747 §49;
                                                           1987 c.660 §16; 1989 c.1034 §8; renumbered 127.605 in 1989]
be associated with an interment right or is-
suance of a deed, that may be recorded only                    97.055 [1977 c.183 §2; 1979 c.211 §1; 1983 c.526 §5;
                                                           renumbered 127.610 in 1989]
as a service that has taken place and may
not be recorded on the permanent records of                    97.060 [1977 c.183 §3; renumbered 127.615 in 1989]
the cemetery authority.                                        97.065 [1977 c.183 §4; renumbered 127.620 in 1989]
                                                               97.070 [1977 c.183 §5; renumbered 127.625 in 1989]
     (31) “Scattering garden” means a location
set aside within a cemetery that is used for                   97.075 [1977 c.183 §6; repealed by 1983 c.526 §7]
the spreading or broadcasting of cremated                      97.080 [1977 c.183 §7; renumbered 127.630 in 1989]
remains that have been removed from their
container and can be mixed with or placed                                  AUTOPSIES
on top of the soil or ground cover or buried                   97.082 Consent for certain autopsies;
in an underground receptacle on a commin-                  form. (1) Except as provided in subsection
gled basis and that are nonrecoverable.                    (2) of this section, whenever a person dies
     (32) “Special care” means any care in                 and no autopsy is ordered by a medical ex-
excess of endowed care in accordance with                  aminer or district attorney pursuant to ORS
the specific directions of a donor of funds.               146.117, an autopsy may not be conducted
[Amended by 1955 c.545 §1; 1965 c.396 §1; 2007 c.661 §1]   without the prior written consent of a person

Title 10                                              Page 6                                       (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                               97.130

within the first applicable class of the fol-                   97.085 [1977 c.183 §§8,9,10; renumbered 127.645 in
lowing listed classes:                                     1989]
                                                                97.090 [1977 c.183 §11; renumbered 127.650 in 1989]
    (a) The spouse of the decedent;
    (b) A son or daughter of the decedent 18                   DISPOSITION OF HUMAN BODIES
years of age or older;
    (c) Either parent of the decedent;                          97.110 Human remains not to be at-
                                                           tached. No person shall attach, detain or
    (d) A brother or sister of the decedent 18             claim to detain any human remains for any
years of age or older;                                     debt or demand or upon any pretended lien
    (e) A guardian of the decedent at the                  or charge.
time of death;                                                  97.120 Human remains to be deposited
    (f) A person in the next degree of kindred             in accordance with ORS 97.010 to 97.040,
to the decedent;                                           97.110 to 97.450, 97.510 to 97.730, 97.810 to
    (g) The personal representative of the es-             97.920 and 97.990. A cemetery authority
tate of the decedent; or                                   shall deposit or dispose of human remains as
                                                           provided by ORS 97.010 to 97.040, 97.110 to
    (h) The person nominated as the personal               97.450, 97.510 to 97.730, 97.810 to 97.920 and
representative of the decedent in the dece-                97.990.
dent′s last will.
                                                                97.130 Right to control disposition of
    (2)(a) Consent required under subsection               remains; delegation. (1) Any individual of
(1) of this section must be granted on a                   sound mind who is 18 years of age or older,
written autopsy consent form developed pur-                by completion of a written signed instrument
suant to subsection (3) of this section.                   or by preparing or prearranging with any fu-
    (b) If the person authorized by subsection             neral service practitioner licensed under
(1) of this section to grant written consent               ORS chapter 692, may direct any lawful
to conduct an autopsy is not available to                  manner of disposition of the individual′s re-
grant written consent in person, the author-               mains. Except as provided under subsection
ized person may grant consent by completing                (6) of this section, disposition directions or
the required consent form and returning the                disposition prearrangements that are prepaid
signed form, by facsimile or other electronic              or that are filed with a funeral service prac-
transmission, to the party requesting permis-              titioner licensed under ORS chapter 692 shall
sion.                                                      not be subject to cancellation or substantial
    (3) The Public Health Officer, in consul-              revision.
tation with the State Medical Examiner,                         (2) A person within the first applicable
shall develop and make available a standard-               listed class among the following listed
ized written autopsy consent form that:                    classes that is available at the time of death
    (a) Grants the person specified in sub-                or, in the absence of actual notice of a con-
section (1) of this section the authority to:              trary direction by the decedent as described
                                                           under subsection (1) of this section or actual
    (A) Grant permission to conduct an un-                 notice of opposition by completion of a writ-
limited autopsy;                                           ten instrument by a member of the same
    (B) Grant permission to conduct a limited              class or a member of a prior class, may di-
autopsy and to specify what limitations are                rect any lawful manner of disposition of a
imposed upon the autopsy; or                               decedent′s remains by completion of a writ-
    (C) Refuse permission to conduct an                    ten instrument:
autopsy.                                                        (a) The spouse of the decedent.
    (b) Provides a section for the person                       (b) A son or daughter of the decedent 18
specified in subsection (1) of this section to             years of age or older.
submit specific instructions with respect to                    (c) Either parent of the decedent.
tests to be performed during the autopsy and
to the disposition of organs and tissue re-                     (d) A brother or sister of the decedent 18
moved for purposes of a limited autopsy.                   years of age or older.
    (c) Provides that the consent signature                     (e) A guardian of the decedent at the
be accompanied by the signature of a wit-                  time of death.
ness. [2003 c.416 §1]                                           (f) A person in the next degree of kindred
     Note: 97.082 was enacted into law by the Legisla-     to the decedent.
tive Assembly but was not added to or made a part of
ORS chapter 97 or any series therein by legislative ac-         (g) The personal representative of the es-
tion. See Preface to Oregon Revised Statutes for further   tate of the decedent.
explanation.                                                    (h) The person nominated as the personal
     97.083 [1983 c.526 §1; renumbered 127.635 in 1989]    representative of the decedent in the dece-
     97.084 [1983 c.526 §2; renumbered 127.640 in 1989]    dent′s last will.

Title 10                                             Page 7                                      (2007 Edition)
97.145                 PROPERTY RIGHTS AND TRANSACTIONS

    (i) A public health officer.                   regarding the disposition of my remains upon
    (3) The decedent or any person author-         my death for my burial or cremation.
ized in subsection (2) of this section to direct       It is my intent that this Appointment of
the manner of disposition of the decedent′s        Person to Make Decisions Concerning Dis-
remains may delegate such authority to any         position of Remains act as and be accepted
person 18 years of age or older. Such deleg-       as the written authorization presently re-
ation shall be made by completion of the           quired by ORS 97.130 (or its corresponding
written instrument described in subsection         future provisions) or any other provision of
(7) of this section. The person to whom the        Oregon Law, authorizing me to name a per-
authority is delegated shall have the same         son to have authority to dispose of my re-
authority under subsection (2) of this section     mains.
as the person delegating the authority.                DATED this            day of            ,
    (4) If a decedent or the decedent′s desig-             .
nee issues more than one authorization or
direction for the disposal of the decedent′s                                                  (Signature)
remains, only the most recent authorization
or direction shall be binding.                           DECLARATION OF WITNESSES
    (5) A donation of anatomical gifts under           We declare that                        is
ORS 97.951 to 97.982 shall take priority over      personally known to us, that he/she signed
directions for the disposition of a decedent′s     this Appointment of Person to Make Deci-
remains under this section only if the person      sions Concerning Disposition of Remains in
making the donation is of a priority under         our presence, that he/she appeared to be of
subsection (1) or (2) of this section the same     sound mind and not acting under duress,
as or higher than the priority of the person       fraud or undue influence, and that neither
directing the disposition of the remains.          of us is the person so appointed by this doc-
    (6) If the decedent directs a disposition      ument.
under subsection (1) of this section and those
financially responsible for the disposition are    Witnessed By:
without sufficient funds to pay for such dis-                                         Date:
                                                   Witnessed By:
position or the estate of the decedent has                                            Date:
insufficient funds to pay for the disposition,     __________________________________________
or if the direction is unlawful, the direction
shall be void and disposition shall be in ac-
cordance with the direction provided by                (8) Subject to the provisions of ORS
those persons given priority in subsection (2)     97.951 to 97.982, if disposition of the remains
of this section and who agree to be finan-         of a decedent has not been directed and au-
cially responsible.                                thorized under this section within 10 days
                                                   after the date of the death of the decedent,
    (7) The signature of the individual shall      a public health officer may direct and au-
be required for the completion of the written      thorize disposition of the remains.
instrument required in subsection (3) of this
section. The following form or a form sub-             (9) Notwithstanding subsection (2) of this
stantially similar shall be used by all indi-      section, a person arrested for or charged
viduals:                                           with criminal homicide by reason of the
__________________________________________         death of the decedent may not direct the
                                                   disposition of the decedent′s remains. The
                                                   disposition of the decedent′s remains shall be
        APPOINTMENT OF PERSON                      made in accordance with the directions of an
           TO MAKE DECISIONS                       eligible person within the first applicable
                                                   class established under subsection (2) of this
        CONCERNING DISPOSITION                     section. [Amended by 1969 c.175 §10; 1969 c.591 §279;
                OF REMAINS                         1973 c.823 §97; 1995 c.717 §10; 1997 c.472 §1; 1999 c.201
                                                   §5; 2007 c.373 §1; 2007 c.681 §24]
    I,                               , appoint          97.132 [1961 c.674 §1; repealed by 1969 c.175 §12]
                              , whose ad-
dress is                           and whose            97.134 [1961 c.674 §§2,3; repealed by 1969 c.175 §12]
telephone number is (       )                ,          97.140 [Repealed by 1957 c.423 §1 (97.141 and 97.145
as the person to make all decisions regarding      enacted in lieu of 97.140)]
the disposition of my remains upon my death             97.141 [1957 c.423 §2 (97.141 and 97.145 enacted in
                                                   lieu of 97.140); repealed by 1997 c.472 §13]
for my burial or cremation. In the event
                     is unable to act, I ap-           97.145 Liability for failure to conform
point                     , whose address is       to written instrument directing control
                                 and whose         of remains. No cemetery authority,
telephone number is (       )                ,     crematory operator or licensed funeral ser-
as my alternate person to make all decisions       vice practitioner interring or cremating re-

Title 10                                     Page 8                                        (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                                97.160

mains pursuant to a written instrument                      tioner relating to any cremated remains that
signed by the decedent or a person described                have been left in its possession for a period
in ORS 97.130 (2) shall be liable for any fail-             of 180 days unless the cemetery authority,
ure to conform to the priority of control of                crematory operator or licensed funeral ser-
remains provided in ORS 97.130, except when                 vice practitioner has failed to make such
it shall have received two or more conflict-                reasonable effort to notify the person de-
ing written instruments prior to interment                  scribed in subsection (1) of this section or
or cremation of said remains. [1957 c.423 §3                unless a written contract has been entered
(97.141 and 97.145 enacted in lieu of 97.140); 1997 c.472   into with the cemetery authority, crematory
§2]                                                         operator or licensed funeral service practi-
    97.150 Disposition of cremated re-                      tioner for their care or unless permanent
mains;      procedures;      notice;   actions              interment has been made. If the cemetery
against cemetery or funeral service pro-                    authority, crematory operator or licensed fu-
viders. (1) If the cemetery authority,                      neral service practitioner has complied with
crematory operator or licensed funeral ser-                 this section, then the cemetery authority,
vice practitioner has been authorized to                    crematory operator or licensed funeral ser-
cremate remains of a decedent pursuant to                   vice practitioner may dispose of the remains
ORS 97.130, the authorization shall also con-               as is legally practicable. [Amended by 1989 c.669
tain further instructions to the cemetery au-               §1; 1997 c.472 §3]
thority, crematory operator or licensed                         97.153 Diagnostic or therapeutic
funeral service practitioner as to the final                radioisotopes in body. Notwithstanding
disposition of the cremated remains. If the                 section 14, chapter 653, Oregon Laws 1991,
cremated remains are left in the possession                 or ORS 469.525, diagnostic or therapeutic
of the cemetery authority, crematory opera-                 radioisotopes     remaining      inside       the
tor or licensed funeral service practitioner                uncremated body of a deceased person may
and no such instructions are given to the                   be buried, entombed or otherwise disposed of
cemetery authority, crematory operator or                   in a cemetery or other lawful place for the
licensed funeral service practitioner within                burial, entombment or other disposal of the
180 days after the date of cremation, the                   uncremated body of the deceased person even
cemetery authority, crematory operator or                   though the body contains low-level radioac-
licensed funeral service practitioner shall                 tive waste as defined under 42 U.S.C. 2021(b)
make a reasonable effort to notify the per-                 as of January 1, 1995, by-product material as
son, pursuant to ORS 97.130, who has the                    defined under 42 U.S.C. 2014 as of January
right to control the disposition of the                     1, 1995, or special nuclear material exempted
cremated remains. The notice shall state that               by the United States Nuclear Regulatory
the cemetery authority, crematory operator                  Commission as of January 1, 1995, under au-
or licensed funeral service practitioner in-                thority of 42 U.S.C. 2077(d). [1995 c.252 §1]
tends to dispose of the cremated remains un-                     Note: 97.153 was enacted into law by the Legisla-
less such person gives instructions to the                  tive Assembly but was not added to or made a part of
contrary     to   the     cemetery   authority,             ORS chapter 97 or any series therein by legislative ac-
crematory operator or licensed funeral ser-                 tion. See Preface to Oregon Revised Statutes for further
                                                            explanation.
vice practitioner within 30 days of the date
of such notice from the cemetery authority,                     97.160 Duty of hospital or sanitarium
crematory operator or licensed funeral ser-                 to notify before sending remains to
vice practitioner. Reasonable effort to notify              undertaker; procedures. (1) No hospital or
shall include, but not be limited to, notice,               sanitarium, or the employees, agents or rep-
personally or by certified mail, return receipt             resentatives thereof, shall send or cause to
requested, to the person who has the right                  be sent to any funeral service practitioner,
to control the disposition of the cremated                  undertaker, mortician or embalmer the re-
remains at the address of such person in the                mains of any decedent without having com-
records of the cemetery authority, crematory                plied with this section before final
operator or licensed funeral service practi-                disposition of the remains.
tioner. If disposition of the cremated remains                  (2) If the admitting record contains the
has not been directed and authorized by such                name of a relative, friend or other person
person within said 30-day period, the ceme-                 identified by the decedent in the admitting
tery authority, crematory operator or li-                   record, or if the hospital or sanitarium is
censed funeral service practitioner may                     aware of the name of any other person
dispose of the cremated remains as is legally               chargeable with the funeral expenses of the
practicable.                                                decedent, the hospital or the sanitarium must
    (2) No cemetery authority, crematory op-                notify the relative, friend or other person
erator or licensed funeral service practi-                  personally or by certified mail, return receipt
tioner shall be liable, and no action shall lie             requested.
against any cemetery authority, crematory                       (3) If a hospital or sanitarium is unable
operator or licensed funeral service practi-                to give actual notice to a relative, friend or

Title 10                                              Page 9                                      (2007 Edition)
97.170                 PROPERTY RIGHTS AND TRANSACTIONS

other person under the provisions of subsec-       in the fundamental sciences as required and
tion (2) of this section, the hospital or          specified in ORS 683.010 to 683.335 and ORS
sanitarium must publish a notice of death at       chapters 676 to 681 and 684 to 686, as the
least one time in a newspaper of general cir-      Demonstrator of Anatomy directs. The ex-
culation in the county where the death oc-         penses of embalming, transportation of the
curred, or, if there is no such newspaper, in      body to such school or college, filing fees and
a newspaper most likely to give notice of the      other related expenses shall be paid from the
death to relatives and friends of the dece-        funds appropriated specifically for the pur-
dent. The notice must contain the name of          poses of this section. Such expenses shall not
the decedent and the address and phone             exceed the normal rates charged for such
number for the hospital or sanitarium.             services to the general public.
    (4) If the remains of the decedent are not         (2) If the Demonstrator of Anatomy does
claimed within 10 days after the giving of         not require any such body for instruction or
notice under subsection (2) of this section,       research, it may be assigned, on request, to
or within 10 days after publication under          any other properly authorized institution
subsection (3) of this section if publication is   within this state or to any qualified physi-
made under subsection (3) of this section, the     cian for instruction or research.
hospital or sanitarium may arrange for the             (3) When the body of a deceased person
disposal of the remains of the decedent with-      is deemed in unfit condition by the Demon-
out further notice in the manner specified by      strator of Anatomy and disposition does not
ORS 97.170 to 97.200.                              take place as set forth in subsections (1) and
    (5) Nothing in this section limits or gov-     (2) of this section, and no relatives, friends
erns the authority of any administrator or         or interested persons claim the body after
executor, trustee or other person having a         notification is attempted, then the funeral
fiduciary relationship with the deceased or        service practitioner may commence to
to the state, counties, cities or towns in the     cremate or bury the body without the con-
disposition of the remains of a deceased per-      sent of persons listed in ORS 97.130 and is
son. [Amended by 1993 c.92 §1]                     furthermore indemnified from any liability
                                                   arising from having made such disposition.
    97.170 Disposition of body of indigent         The method of disposition must be in the
or child in custody of Department of Hu-           least costly manner that complies with law,
man Services. (1) Except as set forth in           and that does not conflict with known wishes
subsection (4) of this section, any licensed       of the deceased. Reimbursement for costs of
funeral service practitioner having charge of      disposition shall be made as set forth in sub-
the body of a deceased person thought to be        section (5) of this section.
an unclaimed indigent shall use all reason-
able diligence promptly to notify the rela-            (4) When the deceased person is a child
tives of the deceased person or any other          over whom the Department of Human Ser-
person having an interest in the deceased          vices held guardianship at the time of death,
person and shall arrange with any relative         and no relatives, friends or interested per-
who claims the body or with any friend of          sons claim the body after notification is at-
the deceased person who will pay the ex-           tempted as set forth in subsection (1) of this
penses to make disposition of the body. If no      section, the department may at its discretion
one claims the body within five days after         notify the Demonstrator of Anatomy and
death, or if those notified acquiesce, the fu-     proceed as set forth in subsection (1) of this
neral service practitioner shall notify, by        section, or may authorize burial or cremation
telephone, the Demonstrator of Anatomy of          of the body. Expenses related to burial or
the Oregon Health and Science University.          cremation authorized by the department un-
The Demonstrator of Anatomy, who shall be          der this subsection shall be borne by the de-
appointed by the Oregon Health and Science         partment.
University Board of Directors from the staff           (5) Upon receipt of an itemized statement
of the Oregon Health and Science Univer-           of expenses, the department shall reimburse
sity, shall immediately inform the funeral         the funeral service practitioner within 30
service practitioner whether the body is           days the reasonable costs for disposition of
deemed to be in fit condition and is desired       any unclaimed deceased person who has in-
for medical instruction or the advancement         sufficient assets and for whom no one takes
of medical science. If the body is desired for     responsibility. The method of disposition
these purposes, the funeral service practi-        must be in the least costly manner and shall
tioner shall arrange for a licensed embalmer       not exceed $450 per disposition. [Amended by
to make such preparation as is necessary and       1973 c.842 §1; 1985 c.704 §1; 1993 c.345 §4; 1995 c.162 §62]
shall, within 72 hours, deliver it to the Ore-         97.180 Period within which body may
gon Health and Science University, or any          not be used. Upon receipt of any body by a
other school or college within the State of        school or college pursuant to ORS 97.170, it
Oregon qualifying applicants for examination       shall be properly embalmed for anatomical

Title 10                                     Page 10                                        (2007 Edition)
                 CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                          97.320

purposes, but shall be retained 30 days before       or if ordered under the provisions of ORS
being used or dismembered. If it is claimed          146.045 (3)(e). [Amended by 1977 c.582 §3; 2007 c.661
by any relative or friend within that period,        §2]
it shall be delivered to the claimant.                    97.230 [Repealed by 1973 c.286 §1]
    97.190 Post-mortem examination of                     97.250 [1969 c.175 §1; repealed by 1995 c.717 §9]
body. Unless required by a medical examiner               97.255 [1969 c.175 §3; repealed by 1995 c.717 §9]
to determine the cause of death or specif-                97.260 [1969 c.175 §2; repealed by 1995 c.717 §9]
ically authorized and ordered by the super-               97.265 [1969 c.175 §4; 1973 c.823 §§98,157; 1993 c.218
intendent of the hospital or institution in          §1; repealed by 1995 c.717 §9]
which any person coming under the pro-                    97.268 [1985 c.379 §1; repealed by 1995 c.717 §9]
visions of ORS 97.170 may die, no such body               97.270 [1969 c.175 §5; repealed by 1995 c.717 §9]
as is mentioned in ORS 97.170 is subject to               97.275 [1969 c.175 §6; 1969 c.591 §278a; 1975 c.215
post-mortem examination, except by consent           §1; repealed by 1995 c.717 §9]
of the Demonstrator of Anatomy. [Amended by               97.280 [1969 c.175 §7; repealed by 1995 c.717 §9]
1959 c.629 §43; 1965 c.221 §13; 1977 c.582 §1]
                                                          97.285 [1969 c.175 §8; repealed by 1995 c.717 §9]
    97.200 Disposition of remains after                   97.290 [1969 c.175 §9; repealed by 1995 c.717 §9]
educational use thereof. The remains of
                                                          97.295 [Formerly 116.115; 1995 c.717 §11; renumbered
any corpse used for the purposes authorized          97.966 in 1995]
by ORS 97.170 shall, upon completion of such
                                                          97.300 [1969 c.271 §1; 1995 c.717 §12; renumbered
use, be decently buried or cremated and the          97.968 in 1995]
ashes, in case of cremation, shall be deliv-
ered to any relative who claims them, after
establishing relationship. All expenses inci-               DEDICATION TO CEMETERY
dent to burial and cremation and the delivery                   PURPOSES; PLATTINGS
of ashes to any relative shall be borne by the            97.310 Survey and subdivision of land;
educational institution which used the body          map       or   plat    of    mausoleum           or
for educational purposes.                            columbarium; access easement. (1) Every
    97.210 Exceptions to application of              cemetery authority, from time to time as its
ORS 97.170 to 97.200; rules. The body of             property may require for cemetery purposes,
any person who died of smallpox, diphtheria,         shall:
scarlet fever or other disease that the De-               (a) In case of land, survey and subdivide
partment of Human Services, by rule, may             it into sections, blocks, plots, avenues, walks
prescribe, shall not be subject to the pro-          or other subdivisions and make a good and
visions of ORS 97.170 to 97.200. [Amended by         substantial map or plat showing them, with
1977 c.582 §2]                                       descriptive names or numbers. In all in-
    97.220 Disinterment. (1) The remains of          stances this shall be done in compliance with
a deceased person interred in a plot in a            ORS 92.010 to 92.190 except that ORS 92.090
cemetery may be removed from the plot with           (2)(a) and (b) shall not be applicable to
the consent of the cemetery authority and            streets, alleys, ways and footpaths located
written consent of the person under ORS              wholly within a cemetery.
97.130 (2)(a), (b) or (c) who has the right to            (b) In case of a mausoleum or
control the disposition of the remains of the        columbarium, make a good substantial map
deceased person. If the consent of any such          or plat on which are delineated the sections,
person or of the cemetery authority cannot           halls, rooms, corridors, elevation and other
be obtained, permission by the county court          divisions, with descriptive names or numbers.
where the cemetery is situated is sufficient.        In all instances this shall be done in compli-
Notice of application to the court for such          ance with the state building code.
permission must be given at least 60 days                 (2) Every lot in a cemetery subdivision
prior thereto, personally or by mail, to the         shall include an access easement across the
cemetery authority, to the person not con-           lot for the benefit of adjacent lots. Desig-
senting and to every other person or author-         nated areas between lots for the purpose of
ity on whom service of notice is required by         providing access to separate lots are not re-
the county court.                                    quired to approve a subdivision under this
    (2) If the payment for the purchase of an        section. A cemetery authority must disclose
interment space becomes past due and so re-          to a potential purchaser of a lot in the cem-
mains for a period of 90 days, this section          etery the existence of the access easement
does not apply to or prohibit the removal of         across the lot. [Amended by 1965 c.396 §2; 1979 c.57
any remains from one plot to another in the          §1; 1985 c.582 §3; 1999 c.381 §1]
same cemetery or the removal of remains by               97.320 Filing map or plat and declara-
the cemetery authority from a plot to some           tion of dedication of land to cemetery
other suitable place.                                purposes. In case of a cemetery lot, the
    (3) This section does not apply to the           cemetery authority shall file the map or plat
disinterment of remains upon order of court          in the office of the recording officer of the

Title 10                                         Page 11                                     (2007 Edition)
97.330                  PROPERTY RIGHTS AND TRANSACTIONS

county in which all or a portion of the prop-       any such cemetery shall be made to the
erty is situated, and it forthwith shall file for   county court or board of county commission-
record in that officer′s office a written dec-      ers in the county where the cemetery is sit-
laration dedicating the property delineated         uated. The application may be by the owners
on the plat or map exclusively to cemetery          or persons in control of the cemetery or by
purposes.                                           a group of 20 or more persons owning lots
                                                    or having relatives buried therein. The ap-
    97.330 When dedication is complete.             plication shall be verified and shall specify
Upon the filing of the map or plat and of the       the lots owned by each petitioner in which
declaration for record, the dedication is           are buried bodies of relatives in which the
complete for all purposes, and thereafter the       petitioner is interested and shall state the
property shall be held, occupied and used           reason for the proposed change and what
exclusively for cemetery purposes.                  provisions have theretofore been made for
    97.340 Effect of dedication. After prop-        the perpetual upkeep, maintenance and
erty is dedicated to cemetery purposes pur-         beautification of the cemetery, and there
suant to ORS 97.310 to 97.330 and 97.360 (1),       shall be presented therewith a plat of the
neither the dedication nor the title of a plot      cemetery, together with the proposed replat,
owner shall be affected by the dissolution of       which shall have clearly indicated thereon
the cemetery authority by nonuser on its            the proposed changes.
part, by alienation of the property, by any             97.370 Fixing date of hearing; notice.
encumbrances, by sale under execution or            When any application mentioned in ORS
otherwise, except as provided in ORS 97.310         97.360 (2) is filed, the court or board shall fix
to 97.350, 97.360 (2), 97.440, 97.510 to 97.650,    the time for the hearing of it and notice of
97.710, 97.720 and 97.810 to 97.865.                the time thereof shall be given by publication
    97.350 Dedication to cemetery pur-              in a paper of general circulation published in
poses not invalid. Dedication to cemetery           the town in which the cemetery is situated
purposes pursuant to ORS 97.010 to 97.040,          or in the town to which it is nearest once a
97.110 to 97.450, 97.510 to 97.730, 97.810 to       week for a period of six successive weeks
97.920 and 97.990 is not invalid as violating       prior to the date of the hearing and a copy
any laws against perpetuities or the suspen-        of such notice shall be posted for a like pe-
sion of the power of alienation of title to or      riod at three public and conspicuous places
use of property, and is deemed to be in re-         in the cemetery. Such notice shall be ad-
spect for the dead, and is a provision for the      dressed to all persons owning lots or having
interment of human remains and is a duty to,        an interest in the cemetery, but need not
and for the benefit of, the general public.         name them, and shall set forth in a general
                                                    way the proposed changes, the reason stated
    97.360 Resurvey and alteration in               in the application for making it, the time
shape or size; vacation of streets, walks,          when the hearing of the application will be
driveways and parks and replatting into
lots. (1) Any part or subdivision of the prop-      had, and shall state that a plat showing the
erty so mapped and platted may, by order of         proposed changes is on file with the county
the directors and consent of the lot owners,        clerk of the county in which the cemetery is
be resurveyed and altered in shape and size         situated.
and an amended map or plat filed, so long as            97.380    Hearing;        order        allowing
such change does not disturb any interred           replatting. At the hearing mentioned in
remains.                                            ORS 97.370 the court or board shall consider
    (2) Whenever a majority of the lots as          and hear any evidence introduced in favor of
platted or laid out in any cemetery estab-          the proposed change and all objections
lished before March 3, 1927, or any part            thereto and, after a full hearing thereon, may
thereof, has been sold without the owners or        allow the proposed change and replat in
persons in control of the cemetery having           whole or in part. If the proposed change is
made provision for the establishment of an          allowed, either in whole or in part, an order
adequate endowment fund for the perpetual           allowing it shall be made providing that title
maintenance, upkeep and beautification of           to any new lot created by the alteration or
the cemetery and of the lots therein, the av-       vacation of any avenues, streets, alleys,
enues, streets, alleys, walks, driveways and        driveways, walks or parks, or any part
parks therein may be vacated or altered and         thereof, shall be vested in the owner of the
replatted into lots which may be sold for           fee of the part of the cemetery sought to be
burial purposes in the manner provided in           vacated in trust for burial purposes, or
this subsection and in ORS 97.370 to 97.430.        vested in any association which may be
Application for the vacation or alteration of       formed for the purpose of taking over the
any avenues, streets, alleys, walks, driveways      cemetery and operating and maintaining it in
or parks, and for the replatting of the same,       accordance with the provisions of ORS
or any portion thereof, for cemetery lots in        97.400. [Amended by 1985 c.582 §4; 1999 c.381 §2]

Title 10                                      Page 12                                  (2007 Edition)
            CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                97.440

    97.390 Assessment of benefits and                97.410 Right of adjacent lot owner
damages. If any damages are claimed by the       upon vacation of way. The vacation of an
owner of any lot in any such cemetery as is      avenue, street, alley, driveway, walk or park
mentioned in ORS 97.360 (2), which lot is        adjacent to a cemetery lot shall vest in the
adjacent to the avenues, streets, alleys,        owner of such lot no interest in the vacated
driveways or parks vacated as provided in        portion thereof; but the adjacent owner shall,
ORS 97.380, they shall be ascertained by the     for 30 days after the date of such an order
county court or board of county commission-      of vacation, have the right to purchase any
ers and offset against the benefits accruing     new lot adjacent to the lot of the owner at
to the lot owner on account of the upkeep        the price fixed by the court or board at
and beautification of the cemetery in the        which the lots are to be sold, and if there is
manner provided in ORS 97.400. Any person        more than one adjacent lot owner, the new
feeling aggrieved at the amount of damages       lot shall be sold to the one offering the
so assessed by the board may appeal from         highest price therefor.
such order of allowance to the circuit court         97.420 Effect of failure to object. Any
of the county in which the cemetery is situ-     owner of such cemetery as is mentioned in
ated in the same manner as is provided by        ORS 97.360 (2), or of any lot therein, or any
statute for appeal from the assessment of        relative or heir of any deceased person
damages by the exercise of eminent domain        buried in such cemetery who fails to appear
in locating a county road and on such appeal     and file written objection to any proposed
the jury, in assessing the amount of damages     replat, alteration or vacation, authorized by
to be allowed to the appellant, shall offset     ORS 97.360 (2), shall be deemed to have con-
against such damages the benefits accruing       sented to the proposed change and shall be
                                                 forever barred from claiming any right to use
to the appellant as in this section above pro-   and have open for traffic or passageway any
vided.                                           streets, alleys, driveways or parks vacated,
    97.400 Disposal of newly created lots;       or any right, title or interest therein, except
disposition and use of proceeds from sale;       as provided in ORS 97.360 (2) and 97.370 to
failure of owner to perform duties. Any          97.410.
owner or association accepting the trust of          97.430 Declaration of exercise of police
handling and disposing of lots newly created     power and right of eminent domain. The
pursuant to ORS 97.380 shall by the accept-      enactment of ORS 97.360 (2) and 97.370 to
ance thereof agree to dispose of the lots only   97.430 is hereby declared to be a necessary
for burial purposes and at a price not less      exercise of the police powers of the state in
than that fixed by the county court or board     order to preserve and keep existing ceme-
of county commissioners. The net funds de-       teries as resting places for the dead and to
rived from the sale of the lots remaining af-    preserve old and historic cemeteries from
ter the payment of the reasonable expenses       becoming unkempt and places of reproach
incident to the vacation and of the sale shall   and desolation in the communities in which
be placed in an irreducible and perpetual        they are located. The taking of avenues,
fund and the interest therefrom shall be used    streets, alleys, walks, driveways and parks
for the perpetual upkeep and beautification      for the purpose and by the method specified
of the cemetery and the lots therein situated.   in ORS 97.360 (2) and 97.370 to 97.420 is
The fund shall be placed in some reliable        hereby declared an exercise of the right of
trust company specified by the court or          eminent domain in behalf of the public
board, which trust company shall invest the      health, safety, comfort, pleasure and historic
same and pay the income therefrom to the         instruction.
owner or association charged with the dis-           97.440 Removal of dedication. (1) Prop-
posal of such lots. Any owner or association     erty dedicated to cemetery purposes shall be
taking over the sale of the lots shall comply    held and used exclusively for cemetery pur-
with such provisions as the court or board       poses until the dedication is removed from
may require of it in the upkeep, beautifi-       all or any part of it by an order and decree
cation and care of the cemetery with the in-     of the county court or board of county com-
come thereof, and if such owner or               missioners of the county in which the prop-
association for any reason fails to perform      erty is situated in a proceeding brought by
such duties, the court or board may, on its      the cemetery authority for that purpose and
own motion, from time to time, appoint some      upon notice of hearing and proof satisfactory
other association or individual to perform       to the court that:
them. The restrictions of this section shall         (a) The portion of the property from
not apply to the sale of lots obtained by        which dedication is sought to be removed is
replatting cemeteries owned and maintained       not being used for interment of human re-
by any county.                                   mains; or

Title 10                                   Page 13                               (2007 Edition)
97.445                 PROPERTY RIGHTS AND TRANSACTIONS

    (b) The Oregon Commission on Historic         notice must be given to the family, or next
Cemeteries has received notice of and had         of kin of the deceased, if known, and if un-
the opportunity to comment on the removal         known, notice of the removal shall be pub-
from the dedicated property of all human re-      lished for at least four successive weeks in
mains and markers dated prior to February         a newspaper of general circulation in the
14, 1909.                                         county in which the cemetery is located and
    (2) The notice of hearing required by this    twice in a newspaper with statewide circu-
section must:                                     lation.
    (a) Be given by publication once a week           (b) Any removal and the costs of the
for at least four consecutive weeks in a          proceedings under this section shall be at the
                                                  expense of the county, city or town, individ-
newspaper of general circulation in the           ual, corporation or association owning the
county where the cemetery is located and by       cemetery to be moved.
publication twice in a newspaper with state-
wide circulation;                                     (2) Notwithstanding subsection (1)(a) of
                                                  this section, a cemetery or burial ground
    (b) Be posted in three conspicuous places     containing human remains that were inter-
on that portion of the property from which        red before February 14, 1909, may not be
the dedication is to be removed;                  discontinued or declared abandoned or have
    (c) Describe the portion of the cemetery      remains removed from the burial ground or
property sought to be removed from dedi-          cemetery without prior notice to and com-
cation;                                           ment by the Oregon Commission on Historic
                                                  Cemeteries. When commenting on a request
    (d) State that all remains and markers        to discontinue or declare abandoned a ceme-
have been removed or that no interments           tery or burial ground, the commission shall
have been made in the portion of the ceme-        consider:
tery property sought to be removed from
dedication; and                                       (a) The listing of the cemetery or burial
                                                  ground under ORS 97.782;
    (e) Specify the time and place of the
hearing. [Amended by 2003 c.237 §1]                   (b) The historic significance of the ceme-
                                                  tery or graves included in the request; and
    97.445 Vacating county interest in                (c) The findings of any archaeological
cemetery real property. Consistent with           survey of the cemetery or burial ground.
the provisions of ORS 368.326 to 368.366, a       [Amended by 1955 c.472 §1; 2003 c.237 §2]
county may vacate any real property inter-
ests the county may own in a cemetery.                97.460 Approval required prior to es-
Consistent with ORS 368.366 (2), the county       tablishment of cemetery or burial park.
may vacate its real property interests in fa-     No association, corporation, cemetery au-
vor of a private nonprofit organization pro-      thority, or person shall after February 24,
vided the organization states its intent to       1903, lay out, open up or use any property for
provide for the continuing maintenance and        cemetery or burial park purposes, without
                                                  the approval of the planning commission of
care of the cemetery and associated facilities.   the county or city having jurisdiction under
[1997 c.747 §2]
                                                  ORS 92.042 or, if there is no such commis-
     97.450 Discontinuance of cemetery and        sion in such county or city, the governing
removal of remains and markers. (1)(a)            body of such county or city. [Formerly 64.060;
Whenever any cemetery that is within the          1965 c.396 §3]
limits of any county, city or town has been
abandoned, or it is desirable to abandon such         SALES AND RIGHTS IN RESPECT
cemetery, the governing body of any county,                 OF CEMETERY PLOTS
if the cemetery is owned by the county, or
the corporate authorities of the city or town,        97.510 Sale and conveyance of plots by
if the cemetery is owned by the city or town,     cemetery authority. (1) After filing the map
or the trustees or directors, if the cemetery     or plat and recording the declaration of ded-
is owned by an association or corporation,        ication, a cemetery authority may sell and
may order that such burial ground be dis-         convey plots subject to such rules and regu-
continued, have the remains of all persons        lations as may be then in effect and subject
interred in the cemetery moved to some            to such other and further limitations, condi-
other suitable place and provide for the re-      tions and restrictions made a part of the
moval and reerection of all stones and mon-       declaration of dedication by reference or in-
uments marking said graves. Each removal          cluded in the instrument of conveyance of
must be made in an appropriate manner and         the plot.
in accordance with the directions of the Di-          (2) Scattering of cremated remains in a
rector of Human Services. Prior to any re-        scattering garden is not a sale or convey-
moval authorized under this section, written      ance. [Amended by 2007 c.661 §3]

Title 10                                    Page 14                                      (2007 Edition)
                CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                               97.630

    97.520 Sale or offer to sell cemetery          them terminates the right unless otherwise
plot upon promise of resale at financial           provided in the judgment. [Amended by 2003 c.576
profit. A person, firm or corporation may          §357]
not sell or offer to sell a cemetery plot upon          97.590 Transfer of plot or right of
the promise, representation or inducement of       interment. No transfer of any plot, hereto-
resale at a financial profit, except with the      fore or hereafter made, or any right of
consent and approval of the Director of the        interment is complete or effective until re-
Department of Consumer and Business Ser-           corded on the books of the cemetery author-
vices. Each violation of this section consti-      ity.
tutes a separate offense. [Amended by 1989 c.171
§13; 2007 c.661 §4]                                     97.600 Descent of plot. Upon the death
                                                   of the owner, unless the owner has disposed
    97.530 Commission, bonus or rebate             of the plot either by specific direction in the
for sale of plot or services. No cemetery          will of the owner or by a written declaration
authority shall pay or offer to pay, and no        filed and recorded in the office of the ceme-
person, firm or corporation shall receive, di-     tery authority, if no interment has been
rectly or indirectly, a commission, bonus, re-     made in an interment plot which has been
bate or other thing of value for the sale of a     transferred by deed or certificate of owner-
plot or services. This does not apply to a         ship to an individual owner or if all remains
person regularly employed by the cemetery          previously interred are lawfully removed, the
authority for such purpose. Each violation of      plot descends to the heirs at law of the
this section constitutes a separate offense.       owner, subject to the rights of interment of
    97.540 Commission, bonus or rebate             the decedent and the surviving spouse of the
for recommendation of cemetery. No per-            decedent.
son shall pay, cause to be paid or offer to             97.610 Determining occupant of burial
pay, and no person, firm or corporation shall      plot having coowners. When there are two
receive, directly or indirectly, except as pro-    or more owners of a burial plot or of rights
vided in ORS 97.530, any commission, bonus,        of interment therein, such owners may des-
rebate or other thing of value in consider-        ignate one or more persons to designate the
ation of recommending or causing a dead            burials to be made in the plot and file writ-
human body to be disposed of in any ceme-          ten notice of such designation with the cem-
tery. Each violation of this section consti-       etery association. In the absence of such
tutes a separate offense.                          notice or of written objection to its so doing,
    97.550 Plots are indivisible. All plots,       the cemetery association is not liable to any
the use of which has been conveyed by deed         owner for interring or permitting an
or certificate of ownership as a separate plot,    interment therein upon the request or direc-
are indivisible except with the consent of the     tion of any registered coowner of the plot.
cemetery authority, or as provided by law.              97.620 Death of coowner; authori-
    97.560 Presumption of sole ownership           zation to use plot under directions of
in grantee of plot. All plots conveyed to          surviving owners. An affidavit by any per-
individuals are presumed to be solely and          son having knowledge of the fact, setting
separately owned by the person named in the        forth the fact of the death of one owner and
instrument of conveyance.                          establishing the identity of the surviving
                                                   owners named in the deed to any plot, when
    97.570 Spouse has vested right of              filed with the cemetery authority operating
interment. (1) The spouse of an owner of           the cemetery in which the plot is located, is
any plot containing more than one interment        authorization to the cemetery authority to
space has a vested right of interment of the       permit the use of the unoccupied portion of
remains of the spouse in the plot, and any         the plot in accordance with the directions of
person thereafter becoming the spouse of the       the surviving owners or their successors in
owner has a vested right of interment of the       interest.
remains of the person in the plot if more
than one interment space is unoccupied at               97.630 Family plots; order of occupa-
the time the person becomes the spouse of          tion. (1) Whenever an interment of the re-
the owner.                                         mains of a member or of a relative of a
                                                   member of the family of the record owner,
    (2) The purchase by a married person of        or of the remains of the record owner, is
more than one interment space shall create         made in a plot transferred by deed or certif-
in the spouse a right of interment therein.        icate of ownership to an individual owner,
    97.580 Divestiture of spouse′s right of        and the owner dies without making disposi-
interment. No conveyance or other action           tion of the plot, either by direction in the
of the owner without the written consent or        owner′s will, or by a written declaration filed
joinder of the spouse of the owner divests the     and recorded in the office of the cemetery
spouse of the vested right of interment, ex-       authority,    the   plot   thereby     becomes
cept that a judgment of divorce between            inalienable and shall be held as the family

Title 10                                     Page 15                                (2007 Edition)
97.640                 PROPERTY RIGHTS AND TRANSACTIONS

plot of the owner, and occupied in the fol-               CEMETERY MANAGEMENT
lowing order:                                         97.710 Power of cemetery to make
    (a) One grave, niche or crypt may be          rules and regulations. (1) The cemetery
used for the owner′s interment; one for the       authority may make and enforce rules and
owner′s surviving spouse, if there is one, who    regulations for:
by ORS 97.010 to 97.040, 97.110 to 97.450,            (a) The use, care, control, management,
97.510 to 97.730, 97.810 to 97.920 and 97.990     restriction and protection of its cemetery;
has a vested right of interment in it; and in
those remaining, if any, the children of the          (b) Restricting and limiting the use of all
deceased owner in order of death may be           property within its cemetery;
interred without the consent of any person            (c) Regulating the uniformity, class and
claiming any interest in the plot.                kind of all markers, monuments and other
    (b) If no child survives, the right of        structures within its cemetery;
interment goes in order of death to the               (d) Prohibiting the erection of monu-
spouse of any child of the record owner.          ments, markers or other structures in or
                                                  upon any portion of its property;
    (2) Any surviving spouse, child or child′s
spouse who has a right of interment in a              (e) Regulating or preventing the erection
family plot may waive such right in favor of      of monuments, effigies and structures within
any other relative or spouse of a relative of     any portion of the cemetery grounds and for
either the deceased owner or of the deceased      the removal thereof;
owner′s spouse, and upon such waiver the              (f) Regulating the care or preventing the
remains of the person in whose favor the          introduction of plants or shrubs within such
waiver is made may be interred in the plot.       grounds;
    (3) Notwithstanding subsection (1) of this        (g) Preventing the interment in any part
section, the personal representative of the       thereof of a body not entitled to interment
deceased owner of a family plot may sell un-      therein;
occupied interment spaces in the plot as              (h) Preventing the use of burial plots for
property of the estate of the deceased owner      purposes violative of its restrictions;
when there are no existing rights of
interment in those spaces or all existing             (i) Regulating the conduct of persons and
rights of interment in those spaces have been     preventing improper assemblages therein;
waived and thereby terminated.                    and
                                                      (j) All other purposes deemed necessary
    (4) Whenever a plot is transferred by         by the cemetery authority for the proper
deed or certificate of ownership to an indi-      conduct of its business and the protection
vidual owner and the transfer is recorded on      and safeguarding of the premises and the
the books of the cemetery authority, the          principles, plans and ideals on which the
cemetery authority shall provide to the indi-     cemetery was organized.
vidual owner a written statement, in a form
approved by the State Mortuary and Ceme-              (2) The cemetery authority from time to
tery Board, containing a clear explanation of     time may amend, add to, revise, change or
the provisions of subsections (1) and (2) of      modify such rules and regulations.
this section and of the rights of interment           (3) Such rules and regulations shall be
established thereby. [Amended by 1985 c.652 §1]   plainly printed or typewritten and main-
                                                  tained, subject to inspection, in the office of
    97.640 Waiver or termination of               the cemetery authority.
vested right of interment. A vested right
of interment may be waived and is termi-              97.720 Record of interments and
nated upon the interment elsewhere of the         cremations; inspection. (1) The person in
remains of the person in whom it is vested.       charge of any premises on which interments
                                                  or cremations are made shall keep a record
    97.650 Limitations upon vested right          of all remains interred or cremated on the
of interment. No vested right of interment        premises under the person′s charge, in each
gives to any person the right to have the re-     case stating the name of each deceased per-
mains of the person interred in any               son, the date of interment or cremation, and
interment space in which the remains of any       the name and address of the funeral service
deceased person having equal or prior vested      practitioner. The interment records shall be
right of interment have been interred; nor        open to inspection by survivors of the dece-
does it give any person the right to have the     dent during the customary office hours of the
remains of more than one deceased person          cemetery authority.
interred in a single interment space in vio-          (2) A record shall be kept of the owner-
lation of the rules and regulations of the        ship of all plots in the cemetery which have
cemetery in which the interment space is lo-      been conveyed by the cemetery authority and
cated.                                            of all transfers of plots in the cemetery.

Title 10                                    Page 16                               (2007 Edition)
                CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                                     97.750

    97.730 Gifts and bequests in trust for                     human remains, funerary object, sacred ob-
cemeteries. Gifts, grants and bequests of                      ject or object of cultural patrimony of any
personal property in trust for the purpose of                  native Indian. Persons disturbing native In-
providing perpetual care and maintenance,                      dian cairns or burials through inadvertence,
improvement or embellishment of private                        including by construction, mining, logging or
burial lots in or outside of cemeteries and of                 agricultural activity, shall at their own ex-
the walks, fences, monuments, structures or                    pense reinter the human remains or funerary
tombs thereon, are permitted and shall be                      object under the supervision of the appropri-
deemed to be for perpetual and benevolent                      ate Indian tribe.
uses. They are not invalid by reason of any                         (2) Except as authorized by the appropri-
indefiniteness or uncertainty of the persons                   ate Indian tribe, no person shall:
designated as beneficiaries in the instrument
creating the trust; nor are they invalid as                         (a) Possess any native Indian artifacts,
violating    any     existing   laws    against                human remains or funerary object having
perpetuities or suspension of the power of                     been taken from a native Indian cairn or
alienation of title to property. But nothing in                burial in a manner other than that author-
this section affects any existing authority or                 ized under ORS 97.750.
cause to pass upon the reasonableness of the                        (b) Publicly display or exhibit any native
amount of such gift, grant or bequest. Any                     Indian human remains, funerary object, sa-
cemetery association may act as trustee of                     cred object or object of cultural patrimony.
and execute any such trust with respect to
lots, walks, fences, monuments, structures or                       (c) Sell any native Indian artifacts, hu-
tombs, both within or outside its own ceme-                    man remains or funerary object having been
tery limits, but within the county where such                  taken from a native Indian cairn or burial
cemetery association has its principal office                  or sell any sacred object or object of cultural
and place of business, whether such power is                   patrimony.
otherwise included in its corporate powers                          (3) This section does not apply to:
or not.                                                             (a) The possession or sale of native In-
                                                               dian artifacts discovered in or taken from
           INDIAN GRAVES AND                                   locations other than native Indian cairns or
           PROTECTED OBJECTS                                   burials; or
    97.740 Definitions for ORS 97.740 to                            (b) Actions taken in the performance of
97.760. For the purposes of ORS 97.740 to                      official law enforcement duties.
97.760:                                                             (4) Any discovered human remains sus-
    (1) “Burial” has the meaning given that                    pected to be native Indian shall be reported
term in ORS 358.905.                                           to the state police, the State Historic Pres-
                                                               ervation Officer, the appropriate Indian tribe
    (2) “Funerary object” has the meaning                      and the Commission on Indian Services. [1977
given that term in ORS 358.905.                                c.647 §2; 1979 c.420 §1; 1981 c.442 §4; 1985 c.198 §1; 1993
                                                               c.459 §10]
    (3) “Human remains” has the meaning
given that term in ORS 358.905.                                     97.750 Permitted acts; notice. (1) Any
    (4) “Indian tribe” means any tribe of In-                  proposed excavation by a professional ar-
dians recognized by the Secretary of the In-                   chaeologist of a native Indian cairn or burial
terior or listed in the Klamath Termination                    shall be initiated only after prior written no-
                                                               tification to the State Historic Preservation
Act, 25 U.S.C. 3564 et seq., or listed in the                  Officer and the state police, as defined in
Western Oregon Indian Termination Act, 25                      ORS 358.905, and with the prior written con-
U.S.C. 3691 et seq., if the traditional cultural               sent of the appropriate Indian tribe in the
area of the tribe includes Oregon lands.                       vicinity of the intended action. Failure of a
    (5) “Object of cultural patrimony” has                     tribe to respond to a request for permission
the meaning given that term in ORS 358.905.                    within 30 days of its mailing shall be deemed
    (6) “Professional archaeologist” means a                   consent. All associated material objects,
                                                               funerary objects and human remains removed
person who has extensive formal training
                                                               during such an excavation shall be reinterred
and experience in systematic, scientific ar-
                                                               at the archaeologist′s expense under the
chaeology.
                                                               supervision of the Indian tribe.
    (7) “Sacred object” has the meaning
                                                                    (2) In order to determine the appropriate
given that term in ORS 358.905. [1977 c.647 §1;
1981 c.442 §3; 1985 c.198 §2; 1993 c.459 §9; 1997 c.249 §34]   Indian tribe under this section and ORS
                                                               97.745, a professional archaeologist or other
    97.745 Prohibited acts; application;                       person shall consult with the Commission on
notice. (1) Except as provided in ORS 97.750,                  Indian Services which shall designate the
no person shall willfully remove, mutilate,                    appropriate tribe. [1977 c.647 §3; 1979 c.420 §2; 1981
deface, injure or destroy any cairn, burial,                   c.442 §5; 1993 c.459 §11]

Title 10                                                Page 17                                        (2007 Edition)
97.760                       PROPERTY RIGHTS AND TRANSACTIONS

    97.760 Civil action by Indian tribe or                    persons who died before February 14, 1909.
member; time for commencing action;                           [1999 c.731 §1; 2003 c.173 §1]
venue; damages; attorney fees. (1) Apart                           Note: 97.772 to 97.784 were enacted into law by the
from any criminal prosecution, an Indian                      Legislative Assembly but were not added to or made a
tribe or enrolled member thereof shall have                   part of ORS chapter 97 or any series therein by legis-
                                                              lative action. See Preface to Oregon Revised Statutes
a civil action to secure an injunction, dam-                  for further explanation.
ages or other appropriate relief against any
                                                                   97.773 [1995 c.457 §3; repealed by 1999 c.731 §14]
person who is alleged to have violated ORS
97.745. The action must be brought within                         97.774 Oregon Commission on Historic
two years of the discovery of the violation                   Cemeteries; terms. (1) There is established
by the plaintiff. The action may be filed in                  within the State Parks and Recreation De-
the circuit court of the county in which the                  partment the Oregon Commission on Historic
subject grave, cairn, remains or artifacts are                Cemeteries consisting of seven members ap-
located, or within which the defendant re-                    pointed by the State Parks and Recreation
sides.                                                        Director.
    (2) Any conviction pursuant to ORS                            (2) The term of office of each member is
97.990 (5) shall be prima facie evidence of a                 four years, but a member serves at the
violation of ORS 97.745 in an action brought                  pleasure of the director. Before the expira-
under this section.                                           tion of the term of a member, the director
    (3) If the plaintiff prevails:                            shall appoint a successor whose term begins
                                                              on July 1 next following. A member is eligi-
    (a) The court may grant injunctive or                     ble for reappointment. If there is a vacancy
such other equitable relief as is appropriate,                for any cause, the director shall make an
including forfeiture of any artifacts or re-                  appointment to become immediately effective
mains acquired or equipment used in the vi-                   for the unexpired term.
olation. The court shall order the disposition
of any items forfeited as it sees fit, including                  (3) A member of the commission is enti-
the reinterment of any human remains in                       tled to compensation and expenses as pro-
accordance with ORS 97.745 (1);                               vided in ORS 292.495. [1999 c.731 §2; 2003 c.173
                                                              §2]
    (b) The plaintiff shall recover imputed                         Note: See note under 97.772.
damages in an amount not to exceed $10,000                          97.775 [1995 c.457 §4; repealed by 1999 c.731 §14]
or actual damages, whichever is greater.
Actual damages include special and general                         97.776 Commission members; nomi-
damages, which include damages for emo-                       nations. The members of the Oregon Com-
tional distress;                                              mission on Historic Cemeteries must be
    (c) The plaintiff may recover punitive                    citizens of this state who are well informed
damages upon proof that the violation was                     on the restoration and maintenance of his-
willful. Punitive damages may be recovered                    toric cemeteries. The State Parks and Recre-
without proof of actual damages. All punitive                 ation Director shall select members from
damages shall be paid by the defendant to                     nominations made by organizations of local
the Commission on Indian Services for the                     historic cemeteries, organizations of non-
purposes of Indian historic preservation; and                 profit cemeteries, the State Mortuary and
    (d) An award of imputed or punitive                       Cemetery Board and statewide cemetery as-
damages may be made only once for a par-                      sociations. The director shall try to appoint
ticular violation by a particular person, but                 individuals to the commission who represent
shall not preclude the award of such dam-                     or are knowledgeable concerning Native
ages based on violations by other persons or                  American burial places, rural cemeteries,
on other violations.                                          family burial places and metropolitan ceme-
                                                              teries. [1999 c.731 §4; 2003 c.173 §3]
    (4) The court may award reasonable at-
                                                                    Note: See note under 97.772.
torney fees to the prevailing party in an ac-
tion under this section. [1981 c.442 §2; 1995 c.543                 97.777 [1995 c.457 §5; repealed by 1999 c.731 §14]
§1; 1995 c.618 §55]
                                                                  97.778 Chairperson; quorum; meet-
     97.770 [1995 c.457 §7; repealed by 1999 c.731 §14]       ings. (1) The Oregon Commission on Historic
     97.771 [1995 c.457 §1; 1997 c.632 §1; repealed by 1999   Cemeteries shall select one of its members
c.731 §14]                                                    as chairperson and another as vice chairper-
                                                              son for such terms and with duties and pow-
       OREGON COMMISSION ON                                   ers necessary for the performance of the
         HISTORIC CEMETERIES                                  functions of such offices as the commission
    97.772 Definition of “historic ceme-                      determines.
tery.” For purposes of ORS 97.772 to 97.784,                      (2) A majority of the members of the
“historic cemetery” means any burial place                    commission constitutes a quorum for the
that contains the remains of one or more                      transaction of business.

Title 10                                               Page 18                                         (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                             97.810

    (3) The commission shall meet at least                         Note: See note under 97.772.
once every three months at a place, day and
hour determined by the commission. The                                    CEMETERY CARE
commission also shall meet at other times                        97.810 Endowment care and nonen-
and places specified by the call of the chair-               dowed care cemeteries. (1) As used in this
person or of a majority of the members of the                section, “endowment care cemetery” means
commission. [1999 c.731 §5; 2003 c.173 §4]                   a cemetery that maintains an endowment
    Note: See note under 97.772.                             care fund placed in an irrevocable trust fund.
    97.779 [1995 c.457 §6; repealed by 1999 c.731 §14]           (2) An endowment care cemetery shall
     97.780 Duties. The Oregon Commission                    deposit with the trustee or custodian of its
on Historic Cemeteries shall:                                endowment care fund not less than the fol-
     (1) Maintain a listing of all historic cem-             lowing amounts received from the sale of
eteries in this state.                                       plots, niches, crypts or private mausoleums:
                                                                 (a) Fifteen percent of the gross sales
     (2) Assist in coordination of restoration,              price with a minimum of $5 for each grave
renovation and maintenance of Oregon′s his-                  or, when the gross sales price is paid in in-
toric cemeteries.                                            stallments, 15 percent of each installment
     (3) Make recommendations to the State                   until at least 15 percent of the gross sales
Parks and Recreation Director for projects                   price has been deposited, with a minimum of
and funding to help maintain and improve                     $5 for each grave.
Oregon′s historic cemeteries.                                    (b) Five percent of the gross sales price
     (4) Obtain grant funding and seek legis-                for each niche or, when the gross sales price
lative appropriations for individual historic                is paid in installments, five percent of each
cemeteries and groups of historic cemeteries.                installment until at least five percent of the
     (5) Make recommendations to the Legis-                  gross sales price has been deposited.
lative Assembly for changes in law that will                     (c) Five percent of the gross sales price
help protect historic cemeteries as part of                  for each crypt or, when the gross sales price
Oregon′s heritage.                                           is paid in installments, five percent of each
     (6) Assist the director in locating and                 installment until at least five percent of the
listing historic cemeteries.                                 gross sales price has been deposited.
     (7) Assist cemeteries listed as historic                    (d) Five percent of the gross sales price
cemeteries with the commission to rehabili-                  for each private mausoleum or, when the
tate and maintain those cemeteries and to                    gross sales price is paid in installments, five
promote public education relating to historic                percent of each installment until at least five
cemeteries.                                                  percent of the gross sales price has been de-
                                                             posited.
     (8) Establish a process to obtain advice                    (3) The cemetery authority shall, within
from authorities on the subject of the care                  30 days from the receipt of a payment, de-
of old grave markers and graveyards as part                  posit with the trustee or custodian of its en-
of any restoration process. [1999 c.731 §6; 2003             dowment care fund any payment received by
c.173 §5]
                                                             the cemetery authority that is:
     Note: See note under 97.772.
                                                                 (a) Required by subsection (2) of this
    97.782 Listing of historic cemeteries;                   section to be paid into the fund; or
form. A historic cemetery that is not an op-
erating cemetery, as defined in ORS 692.010,                     (b) A payment for special care, gifts,
shall be listed with the Oregon Commission                   grants, contributions, devises or bequests
on Historic Cemeteries. An owner or any                      made with respect to the separate or special
other person or association of individuals                   care of a particular plot, grave, niche, crypt,
that maintains such a historic cemetery shall                mausoleum, monument or marker or that of
list the historic cemetery with the Oregon                   a particular family.
Commission on Historic Cemeteries on a                           (4) Within 75 days of the end of its fiscal
form provided by the commission. No fee                      year, each endowment care cemetery, except
shall be required from a historic cemetery                   one owned by a city or a county, shall file
for listing. [1999 c.731 §7; 2003 c.173 §6]                  with the Director of the Department of Con-
    Note: See note under 97.772.                             sumer and Business Services a statement
                                                             containing the following information pertain-
    97.784 Executive secretary; support                      ing to the endowment care fund:
services. The State Parks and Recreation
Department shall provide support services to                     (a) The total amount invested in bonds,
the Oregon Commission on Historic Ceme-                      securities, mortgages and other investments;
teries. One staff person of the department                       (b) The total amount of cash on hand not
shall be the executive secretary of the com-                 invested at the close of the previous calendar
mission. [1999 c.731 §8; 2003 c.173 §7]                      or fiscal year;

Title 10                                                 Page 19                                  (2007 Edition)
97.820                 PROPERTY RIGHTS AND TRANSACTIONS

    (c) The income earned by investments in           (11) A nonendowed care cemetery is a
the preceding calendar or fiscal year;            cemetery that does not deposit in an endow-
    (d) The amounts of such income expended       ment care fund the minimum specified in
for maintenance in the preceding calendar or      subsection (1) of this section.
fiscal year;                                          (12) A cemetery authority may not in any
    (e) The amount paid into the fund in the      way advertise or represent that it operates
preceding calendar or fiscal year; and            wholly or partially as an endowment care
                                                  cemetery, or otherwise advertise or represent
    (f) Such other items as the director may      that it provides general care or maintenance
from time to time require to show accurately      of all or portions of the cemetery or memo-
the complete financial condition of the trust     rials erected thereon, unless the provisions
on the date of the statement.                     of this section are complied with. [Amended by
    (5) All of the information appearing on       1955 c.545 §2; 1965 c.396 §4; 1967 c.213 §1; 1987 c.295 §1;
the statement shall be verified by an owner       1995 c.144 §4; 1999 c.66 §1; 2001 c.796 §23; 2007 c.661 §5]
or officer of the cemetery authority, and a            97.820 Placing cemetery under en-
copy of the statement shall be maintained in      dowed care; deposit; commingling endow-
the business office of the cemetery authority.    ment and special care funds; trustee or
    (6) The director shall have authority to      custodian of fund. (1) Every cemetery au-
require, as often as the director deems nec-      thority that operates a cemetery may place
essary, the cemetery authority to make un-        its cemetery under endowed care and estab-
der oath a detailed report of the condition       lish, maintain and operate an endowment
and assets of any cemetery endowment care         care fund. All endowed care funds shall be
fund.                                             deposited with and held solely by the trustee
    (7) At the time of the filing of the state-   or custodian appointed by the cemetery au-
ments of its endowment care fund each cem-        thority.
etery authority shall pay to the director an           (2) Endowment care and special care
annual fee as follows:                            funds may be commingled for investment and
    (a) Up to 100 interments per year, $40.       the income therefrom shall be divided be-
                                                  tween the endowment care and special care
    (b) Over 100 interments per year, $100.       funds in the proportion that each fund con-
    (8) All fees received by the director un-     tributed to the principal sum invested. The
der this section shall be immediately turned      income of the endowment care fund may be
over to the State Treasurer who shall deposit     used only to finance the care of the ceme-
the moneys in the Consumer and Business           tery.
Services Fund created under ORS 705.145.               (3) The cemetery authority shall appoint
    (9) A cemetery may not operate as an          as sole trustee of the endowment care fund
endowment care, permanent maintenance or          a trust company as defined in ORS 706.008
free care cemetery until the provisions of        that is authorized to transact trust business
this section are complied with. There shall       in this state, or an insured institution as de-
be printed or stamped at the head of all con-     fined in ORS 706.008 that is authorized to
tracts and certificates of ownership or deeds     accept deposits in this state. Such trust
referring to plots in an endowment care           company or insured institution shall receive
cemetery, the following statement: “This          and accept the fund, including any accumu-
cemetery is an endowment care cemetery,”          lated endowment care fund in existence at
in lettering equivalent to at least 10-point      the time of its appointment and perform such
No. 2 black type, and there shall be printed      duties as are agreed upon in the agreement
in the body of or stamped upon the above-         between it and the cemetery authority. An
described instruments the following state-        insured institution not qualified to transact
ment: “Endowment care means the general           trust business in this state may act as
care and maintenance of all developed por-        custodian of such endowment care fund pro-
tions of the cemetery and memorials erected       vided:
thereon.”                                              (a) The duties of the insured institution
    (10) A cemetery that otherwise complies       are essentially custodial or ministerial in
with this section may be designated an en-        nature; and
dowment care cemetery even though it con-              (b) The insured institution invests the
tains a small area that may be sold without       funds from such plan only in its own time or
endowed care, if it is separately set off from    savings deposits.
the remainder of the cemetery. There shall
be printed or stamped at the head of all con-          (4) The trustee or custodian may resign
tracts and certificates of ownership or deeds     upon written notice to the cemetery author-
referring to plots in this area the phrase        ity or the cemetery authority may remove
“nonendowed care” in lettering equivalent to      the trustee or custodian by written notice to
at least 10-point No. 2 black type.               it. In case of the resignation or removal of

Title 10                                    Page 20                                        (2007 Edition)
                CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                                   97.830

the trustee or custodian, the cemetery au-                     ments of the law or to report has been cor-
thority forthwith shall appoint a successor                    rected.
trustee or custodian and provide for the di-                       (4) The Attorney General may delay in-
rect transfer of all endowed care funds and                    stituting any suit brought under subsection
earnings thereon from the former trustee or                    (3) of this section for no more than an addi-
custodian to the successor trustee or custo-                   tional 30 days if, in the discretion of the At-
dian. [Amended by 1955 c.545 §3; 1965 c.396 §5; 1985           torney General after consulting with the
c.450 §1; 1987 c.295 §2; 1993 c.18 §19; 1993 c.229 §22; 1993
c.318 §11; 1997 c.167 §2; 1997 c.631 §395; 2007 c.661 §6]      director, it appears to the Attorney General:
     97.825 Suits to enforce endowed care                          (a) That the failure to conform to the re-
statutes; attorney fees. (1) If the cemetery                   quirements of the law or to report will be
authority fails to remit to the trustee or                     corrected; and
trustees, in accordance with the law, the                          (b) That no harm to the public will occur
funds herein provided for endowment and                        during the additional 30 days.
special care, or fails to expend the net in-                       (5) If a trustee fails to perform the duties
come from the funds and generally care for                     of the trustee under ORS 97.810 to 97.920,
and maintain any portion of a cemetery en-                     the trustee shall be liable for any damage
titled to endowment care, any three lot own-                   resulting from that failure to any lot owners
ers whose lots are entitled to endowment                       or the next of kin, heirs at law or personal
care, or any one lot owner whose lot is enti-                  representatives of such lot owners.
tled to special care, or the next of kin, heirs
at law or personal representatives of such lot                     (6) The court may award reasonable at-
owners, shall have the right, or the district                  torney fees, costs and disbursements to the
attorney of any county wherein is situated                     prevailing party in an action under this sec-
such lots, shall have the power, by suit for                   tion. [1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999
mandatory injunction or for appointment of                     c.67 §1; 2001 c.796 §24; 2007 c.661 §7]
a receiver, to sue for, to take charge of, and                     97.830 Investment and reinvestment
to expend such net income. The suit may be                     of principal of endowed care funds; use
filed in the circuit court of the county in                    and application of income. (1) The princi-
which said cemetery is located, to compel the                  pal of all funds for endowed care shall be
expenditure either by the cemetery authority                   invested, from time to time reinvested and
or by any receiver so appointed by the court,                  kept invested. If a trust agreement imposes
of the net income from such endowment care                     upon the trustee or custodian the duty to di-
fund for the purposes set out in ORS 97.010                    rect the investment or reinvestment of en-
to 97.040, 97.110 to 97.450, 97.510 to 97.730,                 dowed care funds, the trustee or custodian
97.810 to 97.920 and 97.990.                                   shall perform this duty governed by ORS
     (2) When the Director of the Department                   130.750 to 130.775. Otherwise, the cemetery
of Consumer and Business Services has rea-                     authority, governed by ORS 130.750 to
son to believe that a cemetery endowment                       130.775, shall direct the investment and rein-
care fund does not conform to the require-                     vestment of endowed care funds in the time
ment of law, or when the director has reason                   or savings deposits of the custodian bank or
to believe that any cemetery is operating in                   savings association.
violation of ORS 97.810 or 97.820, or when                         (2) The principal of invested endowed
the director has sent an endowment care                        care funds shall never be voluntarily re-
cemetery a notice of delinquency to make                       duced, but shall be maintained separate and
any report to the director required by ORS                     distinct by the trustee or custodian from all
97.810, the director shall, as soon thereafter                 other funds except that it shall be proper to
as reasonable, give notice of the foregoing to                 commingle endowment care funds with spe-
the trustee or trustees of the cemetery en-                    cial care funds. The payment of charges
dowment care fund, the cemetery authority,                     chargeable against principal under ORS
the Attorney General of Oregon and the                         chapter 129 or of other expenses necessarily
State Mortuary and Cemetery Board.                             incurred in the administration of the trust in
     (3) Within 120 days after the receipt of                  accordance with subsection (1) of this section
such notice, the Attorney General shall in-                    shall not constitute a voluntary reduction of
stitute suit in the circuit court of any county                principal. The net income earned shall be
of this state in which such cemetery is lo-                    used solely for the general care and mainte-
cated, for a mandatory injunction against                      nance of the cemetery property entitled to
further sales of graves, plots, crypts, niches,                endowment care, as stipulated in the resolu-
burial vaults, markers or other cemetery                       tion, bylaw and other action or instrument
merchandise by such cemetery or for the ap-                    by which the fund was established, and in
pointment of a receiver to take charge of the                  such manner as the cemetery authority may
cemetery, unless the Attorney General shall                    from time to time determine to be in the best
prior to that time be notified by the director                 interests of such endowed property. Such
that such failure to conform to the require-                   net income shall never be used for the im-

Title 10                                                Page 21                                          (2007 Edition)
97.835                       PROPERTY RIGHTS AND TRANSACTIONS

provement or embellishment of undeveloped                      strument, an agreement to care, in accor-
property offered for sale. [Amended by 1955 c.545              dance with the plan adopted, for the
§4; 1985 c.450 §3; 1987 c.295 §3; 1995 c.157 §24; 1995 c.297   cemetery and its appurtenances to the pro-
§1; 2003 c.279 §32; 2005 c.348 §125]                           portionate extent the income received by the
    97.835 Limitation of duties and liabil-                    cemetery authority from the contribution
ity of trustee. The trustee shall have no                      permits.
duty whatsoever to operate, maintain or to                          (2) Upon the application of an owner of
supervise the general maintenance of any                       any plot, and upon the payment by the owner
endowment fund cemetery, and the trustee                       of the amount fixed as a reasonable and pro-
shall have no duty whatsoever to enforce                       portionate contribution for endowed care, a
collection of any of the trust funds either                    cemetery authority may enter into an agree-
from the purchasers of lots, or from the                       ment with the owner for the care of the plot
cemetery authority, and the trustee shall                      of the owner and its appurtenances.
have no duty whatsoever to see to the appli-
cation of the net income after payment of the                       97.865 Application of ORS 97.810 to
net income to the cemetery authority. The                      97.865 to religious, county and city ceme-
trustee shall be entitled to rely without li-                  teries. (1) A cemetery authority that oper-
ability upon the affidavit of the cemetery                     ates a cemetery for any religious or
authority showing the amount payable to the                    eleemosynary corporation, church, religious
trustee as endowment care funds. [1955 c.545                   society or denomination, corporation sole ad-
§6]                                                            ministering temporalities of any church or
                                                               religious society or denomination and any
    97.840 Cemetery authority authorized                       county or city may make an irrevocable
to receive and hold gifts of property; dis-                    election to have ORS 97.810 to 97.865 apply
position of gifts. A cemetery authority                        to any cemetery controlled or operated by
which has established an endowment care                        the cemetery authority, county or city by
fund may take, receive and hold any prop-                      filing a written statement indicating such
erty, real, personal or mixed, bequeathed,                     action with the Director of the Department
devised, granted, given or otherwise contrib-                  of Consumer and Business Services. The
uted to it for its endowment care fund.                        statement shall be in the form prescribed by
Within 30 days of the receipt of such con-                     the director and shall contain the informa-
tributions, the cemetery authority shall de-                   tion specified by the director.
posit, with the trustee or custodian of the
fund to which the property was contributed,                         (2)(a) When a cemetery authority, county
all moneys and all documents or instruments                    or city files a statement described in this
of title or conveyance evidencing the con-                     section with the director, ORS 97.810 to
tribution. As soon as practicable, the ceme-                   97.865 applies to a cemetery controlled or
tery authority shall provide for the sale of                   operated by the cemetery authority, county
all property for fair market value and, within                 or city beginning on the first day of the fis-
30 days of the receipt of the proceeds thereof,                cal year next following the filing of the
shall deposit the proceeds with the trustee                    statement.
or custodian. The trustee or custodian shall                        (b) ORS 294.035 does not apply to funds
execute all documents necessary to effect the                  held by a county or city under ORS 97.810 to
sale, consistent with the purposes of this                     97.865. [1997 c.167 §4; 2001 c.796 §25; 2007 c.661 §8]
section. [Amended by 1987 c.295 §4]                                 97.870 Unused and uncared for por-
    97.850 Endowment and special care                          tions of cemetery declared common nui-
funds are charitable. The endowment and                        sances. (1) In all cases where a cemetery
special care funds and all payments or con-                    authority has owned a site for a cemetery for
tributions to them are expressly permitted as                  more than 40 years and has during that pe-
and for charitable and eleemosynary pur-                       riod sold lots, subdivisions of lots, pieces or
poses. Endowment care is a provision for the                   parcels of the cemetery for burial purposes
discharge of a duty from the persons con-                      and the grantee or party claiming through
tributing to the persons interred and to be                    the grantee has not used portions of such
interred in the cemetery and a provision for                   lots, subdivisions of lots, pieces or parcels of
the benefit and protection of the public by                    the cemetery for purposes of burial and has
preserving and keeping cemeteries from be-                     not kept them free of weeds or brush, but
coming unkempt and places of reproach and                      has allowed them to remain entirely unused
desolation in the communities in which they                    for more than 40 years or uncared for and
are situated.                                                  unused for more than 20 years prior to the
                                                               adoption of the resolution provided for in
    97.860 Agreements for care. (1) Upon                       ORS 97.880, and such lots, subdivisions of
payment of the purchase price, including the                   lots, pieces and parcels of the cemetery are
amount fixed as a proportionate contribution                   adjacent to improved parts thereof, and by
for endowed care, there may be included in                     reason of their uncared-for condition detract
the deed of conveyance, or by separate in-                     from the appearance of the cemetery and in-

Title 10                                                Page 22                                     (2007 Edition)
                CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                   97.900

terfere with the harmonious improvement            lot number, together with the name of the
thereof, and furnish a place for the propa-        owner thereof, as appears on the record of
gation of weeds and brush, thereby becoming        the cemetery authority.
a menace to adjacent property, such lots,               (4) In addition to the names of the per-
subdivisions of lots, pieces and parcels of        sons that appear on the records of the ceme-
such cemetery, which are unused and un-            tery authority as the record owners of such
cared for as aforesaid, hereby are declared to     unused and unimproved portions of the cem-
be a common nuisance and contrary to public        etery, the plaintiff shall include as a defend-
policy.                                            ant in a complaint the following: “Also all
    (2) The provisions of this section are not     other persons unknown claiming any right,
applicable to portions of cemeteries which         title, estate, lien or interest in the unused
have been or are sold with agreements be-          and unimproved portions of the cemetery de-
tween the cemetery authority or its succes-        scribed in the complaint.” [Amended by 2003 c.576
                                                   §358; 2007 c.661 §10]
sor in interest, or both, and the grantee
providing for endowment care, permanent                97.900 Summons. (1) Summons shall be
maintenance or free care. [Amended by 1965 c.396   served upon all owners or holders who are
§7; 2007 c.661 §9]                                 residents of this state in like manner as in
                                                   service of summons in a civil action if such
     97.880 Resolution declaring a nui-            owners and holders are known to the sheriff
sance. The governing board of a cemetery           in the county in which the cemetery is lo-
authority described in ORS 97.870 may adopt        cated. If the defendants are not known to the
a resolution declaring such unused and un-         sheriff, it is sufficient to serve the owners
improved portion of its cemetery as is de-         and holders whose names appear on the tax
scribed in ORS 97.870 a common nuisance            rolls of the county for the year previous to
and an abandoned and unused portion of             that in which the suit is started. The
such cemetery, and may direct its officers to      plaintiff is not required to mail a copy of the
file the complaint described in ORS 97.890.        summons or complaint to nonresident de-
[Amended by 1983 c.740 §9]
                                                   fendants.
     97.890 Complaint. (1) Upon the adoption
of the resolution described in ORS 97.880 the          (2) All owners and holders of such unim-
officers of the cemetery authority may file a      proved lots whose names do not appear on
complaint in the circuit court for the county      the tax rolls as aforesaid as shown by the
in which the cemetery is located against the       return of the sheriff may be served by publi-
owners, holders or parties interested in such      cation in any legal newspaper published in
abandoned portion of its cemetery demanding        the county in which the cemetery is located
that the court require such owners, holders        for four consecutive weeks upon return of
or interested parties to keep the premises         the sheriff that such owners and holders are
clear of weeds and brush and in condition in       not known and cannot be served in the ju-
harmony with other lots and, if the owners,        risdiction of the sheriff.
holders, or interested parties fail to appear          (3) The published summons shall contain
in court and comply with the order of the          the names of the record owners, as shown by
court, demanding that the court make a             the records of the cemetery authority, and
judgment declaring such portions of the            “also all other persons unknown claiming
cemetery a common nuisance, directing the          any right, title, estate, lien or interest in the
governing board to abate the nuisance by           unused and unimproved portions of the cem-
clearing the premises and keeping them clear       etery described in the complaint,” together
of weeds and brush, creating a lien upon           with a brief description of the lot, or subdi-
such lots and parcels in favor of the ceme-        visions of lots, pieces or parcels of the cem-
tery authority, providing that the lien be         etery and a statement setting forth the order
foreclosed and the lots and parcels be sold in     and judgment described in ORS 97.890 (1) for
the same manner as other sales upon exe-           which the plaintiff has applied to the court
cution are made and authorizing the govern-        in the complaint. Such summons shall re-
ing board to become a purchaser thereof on         quire all parties defendant to appear and
behalf of the cemetery authority.                  show cause why an order should not be made
     (2) In such suit any number of owners of      declaring the unused and unimproved por-
different lots, subdivisions of lots, pieces or    tions of the cemeteries to be a common nui-
parcels of the cemetery may be included in         sance, directing the cemetery authority to
                                                   abate the nuisance, creating a lien thereon,
the one suit.
                                                   providing that it be foreclosed and directing
     (3) It is a sufficient designation of the     that the unused and unimproved portion of
property so abandoned and unimproved to            the cemetery be sold within four weeks from
give the lot number or portion thereof, or a       and after the date of the first publication
description of the piece or parcel having no       thereof. [Amended by 2003 c.576 §359; 2007 c.661 §11]

Title 10                                     Page 23                                   (2007 Edition)
97.910                 PROPERTY RIGHTS AND TRANSACTIONS

    97.910 Disuse as prima facie evidence         defined ORS 706.008, that is authorized to
of abandonment. In all cases arising under        accept deposits in this state or to transact
ORS 97.870 to 97.900, the fact that the           trust business in this state.
owner, holder or interested party, of the un-         (5) “Director” means the Director of the
used and unimproved portion of the cemetery       Department of Consumer and Business Ser-
has not, for a term of 20 years or more, used     vices.
the plot and has failed to keep it clear of
weeds or brush is prima facie evidence that           (6) “Guaranteed contract” means a writ-
the owner, holder or interested party has         ten preconstruction sales contract or prear-
abandoned it.                                     rangement sales contract that guarantees the
                                                  beneficiary the specific undeveloped space or
    97.920 Judgment declaring nuisance,           spaces or funeral and cemetery merchandise
authorizing abatement and creating and            or funeral and cemetery services contained
foreclosing lien. Upon the failure of the         in the contract and under which no charges
owner of the premises to comply with the          other than the sales price contained in the
order of the court requiring proper care of       contract shall be required upon delivery or
the premises or upon the failure of any of the    performance of the funeral or cemetery mer-
defendants to appear and answer the com-          chandise or services.
plaint or upon the trial of the cause, if the
court finds that the allegations of the com-          (7) “Master trustee” means an entity that
plaint are supported by the evidence and that     is not a certified provider under ORS 97.923
the summons has been served as provided in        to 97.949 and that has fiduciary responsibility
ORS 97.900, the court may enter a judgment        for the uniform administration of funds in-
in accordance with the allegations of the         cluding, but not limited to, acceptance,
complaint and the provisions of ORS 97.890        custodianship, investment and accounting,
(1). [Amended by 2003 c.576 §360]                 delivered to it by a certified provider for the
                                                  benefit of purchasers of preconstruction sales
                                                  contracts or prearrangement sales contracts.
    PREARRANGEMENT SALES AND                      “Master trustee” does not include a financial
        PRECONSTRUCTION SALES                     institution, as defined in ORS 706.008, that
    97.923 Definitions for ORS 97.923 to          acts solely as a depository under ORS 97.923
97.949. As used in ORS 97.923 to 97.949 and       to 97.949.
97.994 unless the context requires otherwise:         (8) “Nonguaranteed contract” means a
    (1) “Beneficiary” means the person, if        written preconstruction sales contract or
known, who is to receive the funeral and          prearrangement sales contract that guaran-
cemetery merchandise, funeral and cemetery        tees the beneficiary the specific undeveloped
services or completed interment spaces.           space or spaces or funeral or cemetery mer-
                                                  chandise or services contained in the con-
    (2) “Certified provider” means any person     tract, when the price of the merchandise and
certified under ORS 97.933 to sell or offer for   services selected has not been fixed and will
sale prearrangement sales contracts or pre-       be determined by existing prices at the time
construction sales contracts.                     the merchandise and services are delivered
    (3) “Delivery” occurs when:                   or provided.
    (a) Physical possession of the funeral or         (9) “Prearrangement sales” or “prear-
cemetery merchandise is transferred to the        rangement sales contract” means any sale,
purchaser; or                                     excluding the sale and contemporaneous or
                                                  subsequent assignment of a life insurance
    (b) If authorized by a purchaser under a      policy or an annuity contract, made to a
purchase agreement:                               purchaser, that has as its purpose the fur-
    (A) The title to the funeral or cemetery      nishing of funeral or cemetery merchandise
merchandise has been transferred to the           or services in connection with the final dis-
purchaser, has been paid for, and is in the       position or commemoration of the memory of
possession of the seller, who has documented      a dead human body, for use at a time deter-
the sale in the purchaser′s records through       minable by the death of the person or per-
use of a serial or other identifying number       sons whose body or bodies are to be disposed
and placed the merchandise, until needed, for     and where the sale terms require payment or
storage on the seller′s premises; or              payments to be made at a currently determi-
    (B) The merchandise has been identified       nable time.
for the purchaser or the beneficiary as docu-         (10) “Preconstruction sale” or “precon-
mented by the manufacturer′s receipt placed       struction sales contract” means a sale made
by the seller in the purchaser′s records and      to a purchaser, for the purpose of furnishing
held by the manufacturer for future delivery.     undeveloped interment spaces and when the
    (4) “Depository” means a financial insti-     sale terms require payment or payments to
tution or trust company, as those terms are       be made at a currently determinable time.

Title 10                                    Page 24                               (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                                   97.929

     (11) “Provider” means any entity that                     97.926 Rulemaking authority. The Di-
sells and offers for sale funeral or cemetery              rector of the Department of Consumer and
merchandise or services.                                   Business Services may adopt rules that are
     (12) “Purchaser” means a beneficiary or               necessary or appropriate to:
a person acting on behalf of a beneficiary                     (1) Protect purchasers of prearrangement
who enters into a prearrangement sales con-                sales contracts and preconstruction sales
tract or a preconstruction sales contract                  contracts and the public; and
with a certified provider under which any                      (2) Administer ORS 97.923 to 97.949. [2007
payment or payments made under the con-                    c.661 §25]
tract are required to be deposited in trust                     Note: See note under 97.923.
under ORS 97.941.
                                                               97.927 Applicability of ORS 97.923 to
     (13) “Salesperson” means an individual                97.949. (1) Except as provided in this section,
registered under ORS 97.931 and employed                   ORS 97.923 to 97.949, 97.992, 97.994 and
by a certified provider to engage in the sale              692.180 apply to all certified providers, mas-
of prearrangement or preconstruction sales                 ter trustees and salespersons who sell or of-
contracts on behalf of the certified provider.             fer for sale prearrangement sales contracts
     (14) “Sales price” means the gross                    or preconstruction sales contracts.
amount paid by a purchaser for a prear-                        (2) ORS 97.923 to 97.949, 97.992, 97.994
rangement sales contract or preconstruction                and 692.180 do not apply to:
sales contract, excluding sales taxes, credit
life insurance premiums and finance charges.                   (a) Agreements to sell or sales made by
                                                           endowment care cemeteries under ORS
     (15) “Trust” means an express trust cre-              97.929; or
ated under ORS 97.941 whereby a trustee has                    (b) Any nonprofit memorial society
the duty to administer the amounts specified               charging less than a $100 membership fee.
under ORS 97.941 received under a prear-
rangement sales contract or a preconstruc-                     (3) Notwithstanding subsection (2) of this
tion sales contract for the benefit of the                 section, ORS 97.937 applies to:
purchaser of a prearrangement sales contract                   (a) Agreements to sell or sales made by
or preconstruction sales contract.                         endowment care cemeteries under ORS
     (16) “Undeveloped interment spaces” or                97.929; or
“undeveloped spaces” means any space to be                     (b) Any nonprofit memorial society
used for the reception of human remains that               charging less than a $100 membership fee.
is not completely constructed or developed                 [Formerly 128.407; 2003 c.362 §2; 2007 c.661 §14]
at the time of initial payment. [Formerly                       Note: See note under 97.923.
128.400; 2003 c.362 §1; 2007 c.661 §12]
                                                               97.929 Exceptions to ORS 97.923 to
     Note: 97.923 to 97.949 were enacted into law by the
Legislative Assembly but were not added to or made a       97.949. (1) The provisions of ORS 97.923 to
part of ORS chapter 97 or any series therein by legis-     97.949, 97.992, 97.994 and 692.180 do not ap-
lative action. See Preface to Oregon Revised Statutes      ply to:
for further explanation.
                                                               (a) Agreements to sell or sales of graves,
    97.925 Purpose. It is the purpose of ORS               crypts or niches where such graves, crypts
97.923 to 97.949, 97.992, 97.994 and 692.180 to            or niches are in existence at the time of the
assure funds for performance to those pur-                 sale or agreement to sell and are located in
chasers who contract through prearrange-                   an endowment care cemetery as defined in
ment sales contracts for the purchase of                   ORS 97.810.
funeral or cemetery merchandise or services,                   (b) Agreements to sell or sales of crypts
and through preconstruction sales contracts                or niches where such crypts or niches are
for undeveloped interment spaces. It is also               not in existence at the time of the sale or
the purpose of ORS 97.923 to 97.949, 97.992,               agreement to sell and are to be located in an
97.994 and 692.180 to provide for the certi-               endowment care cemetery, provided that:
fication or registration of persons selling or
offering for sale prearrangement sales con-                    (A) Thirty-five percent of the sales price
tracts and preconstruction sales contracts,                of each crypt or niche described in this par-
the creation and administration of prear-                  agraph is deposited in accordance with the
rangement sales contract and preconstruc-                  provisions of ORS 97.937; or
tion sales contract trust funds, the                           (B) Such endowment care cemetery de-
disbursement and allocation of trust funds                 posits a bond with a corporate surety au-
upon the certified provider′s performance of               thorized to do business in this state, or an
its contractual obligations and to provide                 irrevocable letter of credit issued by an in-
protection for the purchaser upon the certi-               sured institution, as defined in ORS 706.008.
fied provider′s default. [Formerly 128.405; 2007           The bond or letter of credit shall be in an
c.661 §13]                                                 amount equal to 35 percent of the total sales
     Note: See note under 97.923.                          price of all crypts or niches described in this

Title 10                                            Page 25                                        (2007 Edition)
97.931                      PROPERTY RIGHTS AND TRANSACTIONS

paragraph that have been sold by the en-                    agreements to sell, crypts or niches located in any de-
dowment care cemetery and that have not                     velopment commenced on or after the effective date of
                                                            this 1999 Act. [1999 c.68 §2]
yet been completed.
                                                                 Note: 97.929 was enacted into law by the Legisla-
     (c) Agreements to sell or sales of burial              tive Assembly but was not added to or made a part of
vaults or markers for installation in an en-                ORS chapter 97 or any series therein by legislative ac-
dowment care cemetery, provided that:                       tion. See Preface to Oregon Revised Statutes for further
                                                            explanation.
     (A) Sixty-six and two-thirds percent of                     97.930 [1977 c.715 §§2,3; renumbered 97.975 in 2001]
the sale price of such vaults or markers is
deposited in accordance with the provisions                     97.931 Registration of salesperson for
of ORS 97.937;                                              endowment care cemeteries, precon-
                                                            struction sales and prearrangement
     (B) Such endowment care cemetery is at                 sales; rules; background check; civil pen-
the time of the sale or agreement to sell and               alties. (1) A salesperson may not engage in
for not less than 24 months before such sale                prearrangement sales made by endowment
or agreement has been in continuous opera-                  care cemeteries under ORS 97.929 or in pre-
tion as an endowment care cemetery and has                  construction sales or prearrangement sales
assumed the obligation to supply and install                unless the salesperson is registered with the
the vault or marker and maintain it as part                 State Mortuary and Cemetery Board or holds
of its endowment care program; and                          a current funeral service practitioner license,
     (C) Such endowment care cemetery de-                   embalmer license, funeral service practi-
posits with the Director of the Department                  tioner apprentice registration or embalmer
of Consumer and Business Services:                          apprentice registration. The board by rule
     (i) A bond in a form approved by the di-               shall:
rector in the amount of $10,000 issued by a                     (a) Establish procedures for issuing
corporate surety authorized to do business in               salesperson registrations under this subsec-
this state; or                                              tion;
     (ii) An irrevocable letter of credit in a                  (b) Establish standards for determining
form approved by the director in the amount                 whether a salesperson registration should be
of $10,000 issued by an insured institution,                issued;
as defined in ORS 706.008.                                      (c) Set renewal and salesperson registra-
     (2) Notwithstanding the exception pro-                 tion fees; and
vided in subsection (1) of this section, a per-                 (d) Require biennial renewal of salesper-
son who would otherwise have a claim                        son registrations.
against a certified provider, a master trustee                  (2) The board may conduct a background
or a salesperson under the provisions of ORS                check of any salesperson applying for regis-
97.923 to 97.949 or ORS chapter 692 shall                   tration under subsection (1) of this section.
have a right against the bond or letter of                  The background check may include informa-
credit described in subsection (1)(b) and (c)               tion solicited from the Department of State
of this section. [Formerly 128.412; 2003 c.271 §1]          Police. After consideration of information
     Note: Section 2, chapter 68, Oregon Laws 1999,         obtained from any background check and any
provides:                                                   other information in its possession, the board
     Sec. 2. (1) The amendments to ORS 128.412              shall determine whether to register the
[renumbered 97.929] by section 1 of this 1999 Act apply     salesperson.
only to agreements to sell crypts or niches entered into
on or after the effective date of this 1999 Act [October        (3)(a) The board may impose a civil pen-
23, 1999], and sales of crypts and niches made on or af-    alty of up to $1,000 per violation or suspend,
ter the effective date of this 1999 Act.                    revoke or refuse to issue or renew the regis-
     (2) An endowment care cemetery that deposited a        tration of a salesperson described in subsec-
bond or an irrevocable letter of credit under the pro-      tion (1) of this section upon a determination
visions of ORS 128.412 (2)(b) (1997 Edition) before the
effective date of this 1999 Act must continue to maintain   that the applicant or holder has not complied
the bond or irrevocable letter of credit in the amount      with the provisions of ORS 97.923 to 97.949
provided by ORS 128.412 (2)(b) (1997 Edition) until such    or ORS chapter 692, or any rules adopted
time as all the crypts and niches that were part of the     thereunder. When the board proposes to take
development covered by the bond or letter of credit are
completed. Any endowment care cemetery that main-           such action, the person affected by the action
tains a bond or letter of credit pursuant to this subsec-   shall be accorded notice and an opportunity
tion is not required to maintain a bond or letter of        for hearing as provided by ORS chapter 183.
credit in the amount required by ORS 128.412 (2)(b)         The board shall notify the Director of the
[renumbered 97.929 (2)(b)], as amended by section 1 of      Department of Consumer and Business Ser-
this 1999 Act, for the purpose of crypts and niches lo-
cated in the development covered by the bond or letter      vices of its intent to take action against a
of credit maintained under the provisions of this sub-      salesperson or person acting as a salesper-
section, but the endowment care cemetery must main-         son.
tain a bond or letter of credit in the amount required
by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as            (b) The board shall suspend, revoke or
amended by section 1 of this 1999 Act, for sales of, and    refuse to issue or renew the registration of

Title 10                                             Page 26                                       (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                     97.935

a salesperson if the director requests the         send notification of the matter to the State
board to take such action.                         Mortuary and Cemetery Board.
    (4) Fees and other moneys received by              (c) The director may relieve a certified
the board under this section shall be depos-       provider of the duty to file the annual report
ited into the State Mortuary and Cemetery          upon a determination that the certified pro-
Board Account established in ORS 692.375.          vider has performed all obligations under the
[Formerly 128.414; 2005 c.726 §2]                  prearrangement sales contract or precon-
    Note: See note under 97.923.                   struction sales contract, or that such obli-
     97.933 Certification of provider of pre-      gations lawfully have been assumed by
arrangement or preconstruction sales;              another or have been discharged or canceled.
annual reports; audits; fees. (1) A provider           (4) The director may audit the records of
may not engage in prearrangement sales or          a certified provider that relate to prear-
preconstruction sales unless the provider is       rangement sales or preconstruction sales, as
certified by the Director of the Department        the director may consider appropriate. The
of Consumer and Business Services. The di-         director may refer any matter outside of
rector shall:                                      normal auditing procedures to the office of
     (a) Establish procedures for issuing cer-     the Attorney General for investigation and
tificates required by this section.                send notification of the referral to the State
                                                   Mortuary and Cemetery Board.
     (b) Establish standards for determining
whether a certificate should be issued.                (5) The conduct of individuals, including
                                                   salespersons as defined in ORS 97.923, em-
     (c) Set certification and renewal fees.       ployed by a certified provider is the direct
     (d) Require annual renewal of certifica-      responsibility of the certified provider.
tion.
                                                       (6) A certificate issued to a provider is
     (e) Establish standards for rules of con-     not transferable. A person that seeks to pur-
duct of certified providers.                       chase or otherwise acquire control of a cem-
     (2) The fees described in this section        etery or funeral establishment that is a
shall be reasonable and shall defray the costs     certified provider shall first apply to the di-
associated with the administration of ORS          rector and obtain approval of the purchase
97.923 to 97.949.                                  or change in control.
     (3)(a) Every certified provider shall file        (7) A certificate issued to a provider be-
an annual report with the director on forms        comes inactive when the certificate is sur-
provided by the director. The annual report        rendered to the director. The director retains
shall contain any information reasonably           jurisdiction over the provider as long as
considered necessary by the director, includ-      trust funds remain on deposit for prear-
ing but not limited to:                            rangement sales contracts or preconstruction
     (A) A disclosure of changes in trust de-      sales contracts. While the certificate is inac-
posits;                                            tive, the provider shall:
     (B) The number of consecutively num-              (a) Cease all prearrangement sales to the
bered prearrangement or preconstruction            public;
sales contracts sold during the reporting pe-          (b) Collect and deposit into trust all in-
riod;                                              stallment funds paid toward contracts sold
     (C) A complete inventory of the funeral       prior to becoming inactive;
merchandise, cemetery merchandise or a                 (c) Seek disbursal of trust funds only in
combination thereof delivered in lieu of trust     accordance with the requirements of the
fund requirements under ORS 97.941, includ-        written contracts and ORS 97.923 to 97.949
ing:                                               until the funds have been exhausted; and
     (i) The location of the merchandise;              (d) Continue to submit required annual
     (ii) Merchandise serial numbers or ware-      reports and renewal fees until no trust funds
house receipt numbers identified by the name       remain on deposit. [2001 c.796 §1; 2003 c.362 §3; 2007
of the purchaser or the beneficiary; and           c.661 §15]
                                                        Note: See note under 97.923.
     (iii) The statement of the certified pro-
vider that each item of merchandise is in the          97.935 Registration of master trustees;
seller′s possession at the specified location;     annual reports; annual audits; fees. (1) A
and                                                person may not operate as a master trustee
     (D) The number of withdrawals from or         unless the person is registered with the Di-
terminations of any trusts.                        rector of the Department of Consumer and
     (b) If the annual report is not filed or is   Business Services. The director shall:
filed and shows any material discrepancy, the          (a) Establish procedures for registering
director may take appropriate action and           persons under this section.

Title 10                                     Page 27                                    (2007 Edition)
97.936                    PROPERTY RIGHTS AND TRANSACTIONS

    (b) Establish standards for master trus-                (c) Enforceable in the courts of this
tees.                                                   state. [2007 c.661 §23]
    (c) Set registration and renewal fees.                 Note: See note under 97.923.
    (d) Establish standards for rules of con-               97.937 Deposit of trust funds made by
duct of master trustees.                                endowment care cemeteries. (1) This sec-
    (2)(a) Every master trustee shall file an           tion applies to trust deposits required to be
annual report with the director on forms                made by endowment care cemeteries under
provided by the director. The annual report             ORS 97.929.
shall contain any information reasonably                    (2) As used in this section, “common
considered necessary by the director, includ-           trust account” means trust funds received by
ing but not limited to:                                 a provider from two or more purchasers.
    (A) A disclosure of changes in trust de-                (3) All such trust funds shall be deposited
posits; and                                             by the provider with a financial institution
                                                        in the State of Oregon carrying deposit in-
    (B) A list of all certified providers for           surance, within 15 days after receipt thereof.
which the master trustee holds funds and the            A trust fund shall be held in a separate ac-
total amount of funds held for each certified           count in the name of the provider followed
provider.                                               by the words “funeral plan trust account,” in
    (b) The director may take appropriate               trust for the person for whom such prear-
action under ORS 97.948 and 97.949 if a                 ranged funeral plan is made, or in a common
master trustee fails to file the annual report          trust account in the name of the provider in
or the report contains any material discrep-            trust for each person for whom such prear-
ancy.                                                   ranged funeral plan is made, until a trust
    (c) The director may relieve a master               fund is released under any of the following
trustee of the duty to file the annual report           conditions:
upon a determination that the master trustee                (a) Upon presentation of proof of the
has performed all obligations under the trust           death of the person for whom a prearranged
agreement with each certified provider, or              funeral plan is made, the financial institution
that the master trustee′s obligations have              shall release the principal and accrued in-
been lawfully assumed by another person or              come allocable to that person′s account to
have been discharged or canceled.                       the provider.
    (3) The director may conduct an annual                  (b) Upon presentation of the written re-
audit of a master trustee. The director shall           quest of the purchaser of a revocable trust,
prescribe the form of audits under this sec-            the financial institution shall release the
tion.                                                   principal and accrued income allocable to the
    (4) A master trustee who is audited under           purchaser′s account as directed in such re-
this section shall pay all expenses and costs           quest.
incurred by the director in conducting the                  (c) Upon presentation of proof of the
audit. [2001 c.796 §2; 2003 c.362 §4; 2007 c.661 §16]   death, dissolution, insolvency or merger with
    Note: See note under 97.923.                        another of the provider of a revocable trust,
    97.936 Emergency orders of suspen-                  the financial institution shall release the
sion or restriction. (1) In addition to other           principal and accrued income allocable to
actions authorized under ORS 97.948 (2), the            each purchaser′s account to that purchaser.
Director of the Department of Consumer and                  (d) Upon presentation of proof of the
Business Services may:                                  death, dissolution, insolvency or merger with
                                                        another of the provider of an irrevocable
    (a) Issue an emergency order suspending             trust, the financial institution shall continue
or restricting a certificate or registration or         to hold such trust fund subject to the funeral
ordering a certified provider or master trus-           plan trust, and upon appointment of a suc-
tee or a person acting as a certified provider          cessor provider by the purchaser, the pur-
or master trustee to cease and desist from              chaser′s legal representative, the Director of
specified conduct; or                                   the Department of Consumer and Business
    (b) Take other action deemed necessary              Services or a court of competent jurisdiction,
by the director in the circumstances.                   the financial institution shall release such
    (2) The director shall promptly provide             trust fund to the successor provider only as
opportunity for hearing pursuant to ORS                 provided in paragraph (a) of this subsection.
chapter 183.                                                (4) If trust funds are held in a common
    (3) Emergency orders are:                           trust account under subsection (3) of this
                                                        section, the provider shall maintain records
    (a) Effective when issued;                          showing the purchaser and beneficiary of
    (b) Reviewable as provided in ORS                   each individual trust fund in the account and
183.480; and                                            the allocation to each individual trust fund

Title 10                                         Page 28                                  (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                            97.941

of interest earned by the account. The re-                 files and return the contract to the pur-
cords concerning allocation of interest must               chaser.
be updated at least annually.                                   (3) Each completed contract shall:
    (5) The provider may appoint a successor                    (a) Comply with the plain language stan-
depository. The original depository shall only             dards described in ORS 180.545 (1);
release the trust funds to the successor de-
pository as described in subsections (1) to (4)                 (b) Be consecutively numbered;
of this section.                                                (c) Have a corresponding consecutively
    (6) The financial institution is not re-               numbered receipt;
sponsible for the fulfillment of any prear-                     (d) Be preprinted or, if the certified pro-
ranged funeral plan, excepting only such                   vider uses a master trustee, be obtained from
financial institution shall release a trust                the master trustee;
fund as provided in this section.
                                                                (e) Identify the purchaser and certified
    (7) The director may appoint a successor               provider who sold the contract;
provider upon a determination that the ori-
ginal provider has ceased to provide the                        (f) Specify whether the contract is a
kinds of services and things which the ori-                guaranteed contract or a nonguaranteed
ginal provider agreed to provide, that the                 contract;
purchaser or the purchaser′s legal represen-                    (g) Specify the specific funeral or ceme-
tative cannot be readily identified or con-                tery merchandise or services or undeveloped
tacted and that the appointment of a                       interment spaces included and not included
successor provider is appropriate in order to              in the contract; and
protect the interests of the trust benefici-                    (h) If a guaranteed contract, disclose that
aries. Financial institutions holding deposits             the certified provider may retain 10 percent
of such trust funds shall change their re-                 of the sales price.
cords to reflect such appointment of a suc-
cessor provider upon receipt of written                         (4)(a) Notwithstanding ORS 97.943 (8), in
notice of the appointment from the director.               the case of a prearrangement sales contract,
Where the director proposes to take such                   if at the time of entering into the contract,
action under this subsection, the provider                 the beneficiary of the contract is a recipient
being replaced shall be accorded notice and                of public assistance or reasonably anticipates
an opportunity for hearing as provided in                  becoming a recipient of public assistance, the
ORS chapter 183. [Formerly 128.415; 2007 c.661 §17]        contract may provide that the contract is
     Note: Section 16, chapter 813, Oregon Laws 1987,
                                                           irrevocable.
provides:                                                       (b) The contract may provide for an
     Sec. 16. Notwithstanding the repeal of ORS 128.410    election by the beneficiary, or by the pur-
by section 17 of this Act and the amendments to ORS        chaser on behalf of the beneficiary, to make
128.415 [renumbered 97.937] by section 12 of this Act,     the contract thereafter irrevocable if after
ORS 128.410 and ORS 128.415 (1985 Replacement Part)
shall continue to apply to any prearranged funeral plan    the contract is entered into, the beneficiary
entered into prior to the effective date of this Act       becomes eligible or seeks to become eligible
[September 27, 1987]. [1987 c.813 §16]                     for public assistance. [Formerly 128.421; 2007 c.661
     Note: 97.937 was enacted into law by the Legisla-     §18]
tive Assembly but was not added to or made a part of              Note: See note under 97.923.
ORS chapter 97 or any series therein by legislative ac-
tion. See Preface to Oregon Revised Statutes for further        97.941 Prearrangement or precon-
explanation.                                               struction trust fund deposits. (1) Upon re-
    97.939 Prearrangement or precon-                       ceiving anything of value under a
struction sales contracts; contents; deliv-                prearrangement sales contract or precon-
ery. (1) Three copies of a written sales                   struction sales contract, the certified pro-
contract shall be executed for each prear-                 vider who sold the contract shall deposit the
rangement sales contract or preconstruction                following amounts into one or more trust
sales contract sold by a certified provider.               funds maintained pursuant to ORS 97.923 to
The certified provider shall retain one copy               97.949, 97.992, 97.994 and 692.180:
of the contract and a copy of the completed                     (a) Ninety percent of the amount re-
contract shall be given to:                                ceived in payment of a guaranteed prear-
                                                           rangement sales contract or guaranteed
    (a) The purchaser; and                                 preconstruction sales contract. The remain-
    (b) The depository or the master trustee,              ing 10 percent shall be paid to the provider
if applicable.                                             who sold the contract; or
    (2) Upon receiving a trust deposit under                    (b) One hundred percent of the amount
ORS 97.941, the master trustee shall sign a                received in payment of a nonguaranteed pre-
copy of the contract received under subsec-                arrangement sales contract or nonguaranteed
tion (1) of this section, retain a copy for its            preconstruction sales contract.

Title 10                                            Page 29                                      (2007 Edition)
97.941                 PROPERTY RIGHTS AND TRANSACTIONS

    (2) All trust deposits required by ORS             (7)(a) A provider may appoint a successor
97.923 to 97.949, 97.992, 97.994 and 692.180      provider. The depository shall release the
shall be placed in a depository or delivered      trust funds deposited under ORS 97.923 to
to a master trustee within five business days     97.949, 97.992, 97.994 and 692.180 and accrued
of their receipt.                                 income only to the successor provider as de-
    (3)(a) The trust deposits of a provider       scribed in ORS 97.943 and 97.944 or upon
that does not use the services of a master        presentation of the written request of the
trustee shall be maintained in a depository,      purchaser.
except that the provider may invest the trust          (b) If appointing a successor provider un-
funds in a manner that is, in the opinion of      der this subsection, the original provider
the provider, reasonable and prudent under        shall notify the Director of the Department
the circumstances.                                of Consumer and Business Services of the
    (b) A provider that invests trust funds       proposed change at least 30 days prior to the
may invest the funds only in:                     appointment.
    (A) Certificates of deposit;                       (8)(a) A provider may appoint a successor
                                                  depository or a master trustee as defined in
    (B) U.S. Treasuries;                          ORS 97.923.
    (C) Issues of U.S. government agencies;            (b) If appointing a successor depository
    (D) Guaranteed investment contracts; or       or master trustee under this subsection, the
                                                  provider, the successor depository and the
    (E) Banker′s acceptances or corporate         master trustee must notify the director of the
bonds rated A or better by Standard & Poor′s      proposed change at least 30 days prior to the
Corporation or Moody′s Investors Service.         appointment.
    (c) All investments made under para-               (9)(a) The director may appoint a succes-
graph (b) of this subsection shall be placed      sor certified provider upon a determination
in the custody of the depository in which the     that:
trust funds were originally deposited or any
other depository that may qualify under ORS            (A) The original certified provider has
97.923 to 97.949.                                 ceased to provide the services and merchan-
                                                  dise that the original certified provider
    (d) Prearrangement sales contract trust       agreed to provide;
fund and preconstruction sales contract trust
fund accounts shall be in the name of the              (B) The certificate issued to the original
provider who sold the contract under ORS          certified provider has been revoked or sur-
97.923 to 97.949, 97.992, 97.994 and 692.180.     rendered; and
    (4) Funds deposited in the trust fund ac-          (C) The appointment of a successor cer-
count shall be identified in the records of the   tified provider is appropriate in order to pro-
provider by the name of the purchaser and         tect the interests of the purchasers and
beneficiary and adequate records shall be         beneficiaries of prearrangement sales con-
maintained to allocate all earnings to each       tracts or preconstruction sales contracts.
prearrangement sales contract or precon-               (b) Depositories or master trustees hold-
struction sales contract. Nothing shall pre-      ing deposits of trust funds by the original
vent the provider from commingling the
deposits in any such trust fund account for       certified provider shall change their records
purposes of managing and investing the            to reflect the appointment of a successor
funds. A common trust fund account shall be       certified provider upon receipt of written no-
identified by the name of the provider.           tice of the appointment from the director.
    (5) When a prearrangement sales con-               (10) The trust fund accounts shall be a
tract or preconstruction sales contract in-       single purpose fund. In the event of the
cludes rights of interment and funeral or         provider′s bankruptcy, the funds and accrued
cemetery merchandise or services, the appli-      income shall not be available to any creditor
cation of payments received under the con-        as assets of the provider, but shall be dis-
tract shall be clearly provided in the            tributed to the purchasers or managed for
contract.                                         their benefit by the trustee in bankruptcy,
                                                  receiver or assignee.
    (6) Any person engaging in prearrange-
ment sales or preconstruction sales who en-            (11)(a) If the original provider is licensed
ters into a combination sale which involves       under ORS chapter 692 and voluntarily sur-
the sale of items subject to trust and any        renders the license to the State Mortuary
item not subject to trust shall be prohibited     and Cemetery Board, the original provider
from increasing the sales price of those items    shall transfer responsibility as provider un-
not subject to trust with the purpose of allo-    der this section to a successor provider who
cating a lesser sales price to items which        holds a certificate issued by the director un-
require a trust deposit.                          der ORS 97.933.

Title 10                                    Page 30                                 (2007 Edition)
             CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                   97.943

    (b) If the original provider is not licensed   assets that should be marshaled and held
under ORS chapter 692, upon presentation of        available for the honoring of obligations un-
proof of the death, dissolution, insolvency or     der ORS 97.923 to 97.949; or
merger with another provider of the original           (e) When the court receives proof of
provider, the depository shall release the         other grounds that the court deems good and
prearrangement trust fund deposits or pre-         sufficient for instituting receivership action
construction trust fund deposits to the pur-       concerning the receiver sought to be placed
chaser.                                            in receivership.
    (c) If the original provider is licensed           (3)(a) A receivership under this section
under ORS chapter 692, upon proof of the           may be temporary or for the winding up and
death, insolvency or involuntary surrender         dissolution of a business, as the director may
of the license of the original provider, the       request and the court determines to be nec-
depository shall release the prearrangement        essary or advisable in the circumstances.
trust fund deposits or preconstruction trust
fund deposits to the purchaser.                        (b) Venue of receivership proceedings
                                                   may be, at the director′s request, in Marion
    (12) The purchaser or beneficiary of a         County or the county where the subject of
prearrangement sales contract or precon-           the receivership is located. The appointed
struction sales contract may be named              receiver shall be the director or a person
cotrustee with the provider with the written       that the director nominates and that the
consent of the purchaser or beneficiary.           court approves.
    (13) A provider who has not appointed a            (c) The director may expend money from
master trustee shall have an annual audit of       budgeted funds or the Funeral and Cemetery
all trust account funds performed by an in-        Consumer Protection Trust Fund to imple-
dependent certified public accountant in ac-       ment a receivership. Any expenditures are a
cordance with generally accepted accounting        claim against the estate in the receivership
procedures. The provider shall make the au-        proceedings. [2007 c.661 §24]
dit results available to the director if re-           Note: See note under 97.923.
quested.
    (14) As used in this section, “common               97.943 Distributions from prearrange-
trust fund account” means trust funds re-          ment trust fund deposits. (1) A depository
ceived by a provider from two or more pur-         may not make any distributions from prear-
chasers. [Formerly 128.423; 2007 c.661 §19]        rangement sales contract trust deposits ex-
                                                   cept as provided in this section.
   Note: See note under 97.923.
                                                        (2) The principal of a trust created pur-
    97.942 Appointment of receiver; crite-         suant to a prearrangement sales contract
ria. (1) The Attorney General, on behalf of        shall be paid to the certified provider who
the Director of the Department of Consumer         sold the contract if the certified provider
and Business Services, may petition the cir-       who sold the contract swears, by affidavit,
cuit courts of this state for appointment of a     that the certified provider has delivered all
receiver for a certified provider or person        merchandise and performed all services re-
acting as a certified provider without certi-      quired under the prearrangement sales con-
fication.                                          tract and delivers to the depository one of
    (2) If the court determines that a receiv-     the following:
ership is necessary or advisable, the court             (a) A certified death certificate of the
shall appoint a receiver:                          beneficiary; or
    (a) When a receiver would ensure the                (b) A sworn affidavit signed by the certi-
orderly and proper conduct of a provider′s         fied provider and by:
professional business and affairs during or in          (A) One member of the beneficiary′s fam-
the aftermath of an administrative proceed-        ily; or
ing to revoke or suspend the provider;
                                                        (B) The executor of the beneficiary′s es-
    (b) When a receiver would protect the          tate.
public′s interest and rights in the business,
premises or activities of the provider sought           (3) The principal of a trust created pur-
to be placed in receivership;                      suant to a prearrangement sales contract
                                                   shall be paid to the purchaser if the original
    (c) Upon a showing of serious and re-          provider is no longer qualified to serve as
peated violations of ORS 97.923 to 97.949          provider under ORS 97.941 (10).
demonstrating an inability or unwillingness
                                                        (4) Upon completion by the certified pro-
to comply with the provisions of ORS 97.923        vider of the actions described in subsection
to 97.949;                                         (2) of this section, the depository shall pay
    (d) When a receiver would prevent loss,        to the certified provider from the prear-
wasting, dissipation, theft or conversion of       rangement sales contract trust fund an

Title 10                                     Page 31                                  (2007 Edition)
97.944                 PROPERTY RIGHTS AND TRANSACTIONS

amount equal to the sales price of the mer-             (9) Notwithstanding ORS 97.941 (4) and
chandise delivered.                                subsection (5) of this section, upon receiving
    (5) Upon the final payment to the certi-       a sworn affidavit from the master trustee or
fied provider of the principal in trust under      provider stating that qualifying expenses,
subsection (2) of this section, the undistrib-     taxes or fees have been incurred, a deposi-
uted earnings of the trust shall be paid to:       tory shall allow a master trustee or provider
                                                   to pay from earnings of trust fund deposits
    (a) The certified provider who sold the        any expenses, accounting fees, taxes, deposi-
contract if the contract is a guaranteed con-      tory fees, investment manager fees and other
tract; or                                          fees as may be necessary to enable the pro-
    (b) The contract purchaser, or the pur-        vider to comply with the reporting required
chaser′s estate, if the contract is a nonguar-     by ORS 97.923 to 97.949, and to perform
anteed contract.                                   other services for the trust as may be au-
                                                   thorized by ORS 97.923 to 97.949. Any pay-
    (6) The depository may rely upon the           ment of expenses or fees from earnings of a
certifications and affidavits made to it under     trust fund deposit under this subsection shall
the provisions of ORS 97.923 to 97.949,            not:
97.992, 97.994 and 692.180, and shall not be
liable to any person for such reliance.                 (a) Exceed an amount equal to two per-
                                                   cent per calendar year of the value of the
    (7) If for any reason a certified provider     trust as determined on the first day of Janu-
who sold the prearrangement sales contract         ary of each calendar year;
has refused to comply, or cannot or does not
comply with the terms of the prearrangement             (b) Include the payment of any fee to the
sales contract within a reasonable time after      provider in consideration for services ren-
the certified provider is required to do so,       dered as provider; or
the purchaser or heirs or assigns or duly au-           (c) Reduce, diminish or in any other way
thorized representative of the purchaser or        lessen the value of the trust fund deposit so
the beneficiary shall have the right to a re-      that the services or merchandise provided for
fund in the amount equal to the sales price        under the contract are reduced, diminished
paid for undelivered merchandise and unper-        or in any other way lessened. [Formerly 128.425;
formed services plus undistributed earnings        2005 c.66 §1; 2007 c.661 §20]
amounts held in trust attributable to such             Note: See note under 97.923.
contract, within 30 days of the filing of a
sworn affidavit with the certified provider             97.944 Distributions from precon-
who sold the contract and the depository           struction trust fund deposits. (1) A depos-
setting forth the existence of the contract        itory may not make any distributions from
and the fact of breach. A copy of this affida-     preconstruction sales contract trust deposits
vit shall be filed with the Director of the        except as provided in this section.
Department of Consumer and Business Ser-                (2)(a) The construction or development of
vices. In the event a certified provider who       undeveloped interment spaces shall be com-
has sold a prearrangement sales contract is        menced on the phase of construction or de-
prevented from performing by strike, short-        velopment, or the section or sections of
age of materials, civil disorder, natural dis-     spaces in which sales are made within five
aster or any like occurrence beyond the            years of the date of the first sale. The cer-
control of the certified provider, the certified   tified provider who sold the preconstruction
provider′s time for performance shall be ex-       sales contract shall give written notice in-
tended by the length of such delay.                cluding a description of the project to the
    (8) Except for an irrevocable contract         Director of the Department of Consumer and
described in ORS 97.939 (4), at any time prior     Business Services no later than 30 days after
to the death of the beneficiary of a prear-        the first sale.
rangement sales contract, the purchaser of              (b) Once commenced, construction or de-
the prearrangement sales contract may can-         velopment shall be pursued diligently to
cel the contract and shall be entitled to a        completion. The first phase of construction
refund of all amounts paid on the contract,        must be completed within seven years of the
all amounts in trust including earnings allo-      first sale. However, any delay caused by
cated to the contract that are in excess of        strike, shortage of materials, civil disorder,
all amounts paid on the contract and unallo-       natural disaster or any similar occurrence
cated earnings on trust contract amounts           beyond the control of the certified provider
from the date of the last allocation to the        extends the time of completion by the length
date of the refund request, less any amounts       of a delay.
paid for merchandise already delivered or               (c) If construction or development is not
services already performed, which amounts          commenced or completed within the times
may be retained by the certified provider as       specified, any contract purchaser may sur-
compensation.                                      render and cancel the contract and upon

Title 10                                     Page 32                                  (2007 Edition)
             CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                  97.945

cancellation shall be entitled to a refund of         (7) Upon the payment to a certified pro-
the actual amounts paid toward the purchase       vider of preconstruction sales contract trust
price, together with interest accrued on the      funds under subsection (4) or (6) of this sec-
amount deposited to the trust.                    tion, the undistributed income of the trust
     (3) Except as otherwise authorized by        shall be paid to:
this section, every certified provider selling        (a) The certified provider who sold the
undeveloped spaces shall provide facilities       contract if the contract is a guaranteed con-
for temporary interment for purchasers or         tract; or
beneficiaries of contracts who die prior to           (b) The contract purchaser, or the pur-
completion of the space. Such temporary fa-       chaser′s estate, if the contract is a nonguar-
cilities shall be constructed of permanent        anteed contract.
materials, and, insofar as practical, be land-
scaped and groomed to the extent customary            (8) If the preconstruction sales contract
in that community. The heirs, assigns or          purchaser defaults in making payments un-
personal representative of a purchaser or         der an installment preconstruction sales
beneficiary shall not be required to accept       contract, and default continues for at least
temporary underground interment space             30 days after the purchaser has received
where undeveloped space contracted for was        written notice of default, the certified pro-
an aboveground entombment or inurnment            vider who sold the contract may cancel the
space. In the event that temporary facilities     contract and withdraw from the trust fund
as described in this subsection are not made      the entire balance of the defaulting purchas-
available upon the death of a purchaser or        er′s account as liquidated damages. Upon
beneficiary, the heirs, assigns or personal       certification of the default, the depository
representative is entitled to a refund of the     shall deliver the balance to the certified pro-
entire sales price paid plus undistributed in-    vider. The depository may rely on the certi-
terest attributable to such amount while in       fication and affidavits made to it under the
trust.                                            provisions of ORS 97.923 to 979.949, 97.992,
                                                  97.994 and 692.180 and shall not be liable to
     (4) If the certified provider who sold the   any person for such reliance. [Formerly 128.430;
preconstruction sales contract delivers a         2007 c.661 §21]
completed space acceptable to the heirs, as-          Note: See note under 97.923.
signs or personal representative of a pur-
chaser or beneficiary, other than a                   97.945 Funeral and Cemetery Con-
temporary facility, in lieu of the undeveloped    sumer Protection Trust Fund; fee; rules.
space purchased, the certified provider shall     (1) Every prearrangement sales contract or
provide the depository with a delivery certif-    preconstruction sales contract seller shall
icate and all sums deposited under the pre-       pay to the Director of the Department of
construction sales contract and income            Consumer and Business Services a $5 fee for
allocable to that contract shall be paid to the   each prearrangement sales contract or pre-
certified provider.                               construction sales contract entered into, to
     (5) During the construction or develop-      be paid into a special income earning fund in
ment of interment spaces, upon receiving the      the State Treasury, separate from the Gen-
sworn certification of the certified provider     eral Fund, known as the Funeral and Ceme-
who sold the preconstruction sales contract       tery Consumer Protection Trust Fund. The
and the contractor, the depository shall dis-     fees shall be remitted to the director annu-
burse from the trust fund the amount equiv-       ally within 30 days after the end of Decem-
alent to the cost of performed labor or           ber for all contracts that have been entered
delivered materials as certified, not to exceed   into during the 12-month period.
the amounts deposited and income allocable            (2) Except as provided in this section, the
to those contracts. A person who executes         fund shall be used solely for the purpose of
and delivers a completion certificate with        providing restitution to purchasers who have
actual knowledge of a falsity contained           suffered pecuniary loss arising out of prear-
therein shall be considered in violation of       rangement sales contracts or preconstruction
ORS 97.923 to 97.949 and 692.180.                 sales contracts. The fund may be used for
     (6) Upon completion of the phase of con-     payment of actual administrative expenses
struction or development, section or sections     incurred in administering the fund. All mon-
of the project as certified to the depository     eys in the Funeral and Cemetery Consumer
by the certified provider and the contractor,     Protection Trust Fund are appropriated con-
the trust requirements shall terminate and        tinuously to the director for the payment of
all funds held in the preconstruction sales       restitution under this section and the pay-
contract trust fund attributable to the com-      ment of expenses incurred in performing the
pleted phase, section or sections shall be paid   duties and functions of the director required
to the certified provider who sold the pre-       under ORS 97.923 to 97.949, 97.992, 97.994
construction sales contract.                      and 692.180.

Title 10                                    Page 33                                  (2007 Edition)
97.946                   PROPERTY RIGHTS AND TRANSACTIONS

    (3) The director shall administer the fund     sources, including sales contracts, of a certi-
and shall adopt rules governing the payment        fied provider, master trustee or person acting
of restitution from the fund.                      as a certified provider or master trustee
    (4) Payments for restitution shall be          without certification or registration to deter-
made only upon order of the director where         mine whether the certified provider, master
the director determines that the obligation is     trustee or person acting as a certified pro-
noncollectible from the certified provider.        vider or master trustee without certification
Restitution shall not exceed the amount of         or registration is complying with ORS 97.923
the sales price paid plus interest at the stat-    to 97.949, the rules of the director and any
utory rate.                                        other laws of this state applicable to a certi-
                                                   fied provider or master trustee.
    (5) The fund shall not be applied toward
any restitution for losses on a prearrange-            (b) In addition to the authority conferred
ment sales contract or preconstruction sales       by ORS 97.948, the director may require a
contract entered into prior to September 27,       certified provider, master trustee or person
1987.                                              acting as a certified provider or master trus-
                                                   tee without certification or registration to
    (6) The fund shall not be allocated for        pay the actual and reasonable costs of the
any purpose other than that specified in ORS       examination.
97.923 to 97.949, 97.992, 97.994 and 692.180.
                                                       (2) For the purpose of an examination
    (7) If the director proposes to deny an        under this section, the director may admin-
application for restitution from the fund, the     ister oaths and affirmations, compel the at-
director shall accord an opportunity for a         tendance of witnesses, take evidence and
hearing as provided in ORS chapter 183.            require the production of books, papers, cor-
    (8) Notwithstanding any other provision        respondence, memoranda, agreements or
of this section, the payment of restitution        other documents or records that the director
from the fund shall be a matter of grace and       considers relevant or material to the exam-
not of right and no purchaser shall have           ination.
vested rights in the fund as a beneficiary or          (3) If a certified provider, master trustee
otherwise.                                         or person acting as a certified provider or
    (9) The status of the fund shall be re-        master trustee without certification or regis-
viewed annually by the director. If the re-        tration fails to comply with a subpoena is-
view determines that the fund together with        sued under this section or a party or witness
all accumulated income earned on the fund          refuses to testify on any matter, the judge of
is sufficient to cover costs of potential claims   the circuit court for any county, on the ap-
against the fund and that the total number         plication of the director, shall compel obedi-
of outstanding claims filed against the fund       ence by proceedings for contempt as in the
is less than 10 percent of the fund′s current      case of disobedience of the requirements of
balance, then payments to the fund shall be        a subpoena issued from the court or a refusal
adjusted accordingly at the discretion of the      to testify on a matter before the court.
director. [Formerly 128.435; 2003 c.362 §5]            (4) Each witness who appears before the
   Note: See note under 97.923.                    director under a subpoena issued under this
    97.946 Advertising and marketing               section shall receive the fees and mileage
prohibitions. (1) A person may not engage          provided for witnesses in ORS 44.415 (2), ex-
in unsolicited door to door or telephone ad-       cept that a witness subpoenaed at the in-
vertising and marketing of prearrangement          stance of parties other than the director or
sales contracts or preconstruction sales con-      an examiner may not be compensated for at-
tracts. The costs of advertising and market-       tendance or travel unless the director certi-
ing may not be paid from trust funds.              fies that the testimony of the witness was
    (2) Advertising and marketing a prear-         material to the matter investigated.
rangement sales contract or a preconstruc-             (5) During the course of any examination,
tion sales contract by a funeral service           the director may cause the depositions of
practitioner, embalmer or funeral service es-      witnesses to be taken in the manner pre-
tablishment licensed under ORS chapter 692         scribed by law for like depositions in civil
does not constitute a violation of ORS             suits in the circuit court. [2001 c.796 §3; 2003
692.180 (1)(c). [Formerly 128.440]                 c.362 §6; 2005 c.338 §1]
   Note: See note under 97.923.                         Note: Section 30, chapter 338, Oregon Laws 2005,
                                                   provides:
   97.947 Examination of providers and                  Sec. 30. The amendments to ORS 97.947 by section
master trustees by director; subpoena              1 of this 2005 Act apply to:
power; depositions. (1)(a) The Director of              (1) Conditions and resources, including sales con-
the Department of Consumer and Business            tracts, in existence before, on or after the effective date
Services may examine the conditions and re-        of this 2005 Act [January 1, 2006].



Title 10                                     Page 34                                        (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                                 97.953

     (2) Conduct occurring before, on or after the effec-       (5) Civil penalties under this section may
tive date of this 2005 Act. [2005 c.338 §30]                be imposed as provided in ORS 183.745.
     Note: See note under 97.923.
                                                                (6) If the director takes disciplinary ac-
     97.948 Grounds for discipline by direc-                tion under this section, the director may
tor for violation of ORS 97.923 to 97.949;                  send a notice of the action to the State
suspension and revocation of certificate                    Mortuary and Cemetery Board and to the
or registration; civil penalties; notifica-                 Attorney General. [2001 c.796 §4; 2003 c.362 §7; 2005
tion of board. (1) The Director of the De-                  c.338 §2]
partment of Consumer and Business Services                       Note: Section 31, chapter 338, Oregon Laws 2005,
may discipline a certified provider, master                 provides:
trustee or person acting as a certified pro-                     Sec. 31. The order authorized by the amendments
vider or master trustee without certification               to ORS 97.948 by section 2 of this 2005 Act applies to
or registration who has been found by an                    actions occurring before, on or after the effective date
                                                            of this 2005 Act [January 1, 2006]. [2005 c.338 §31]
audit or examination conducted by the direc-
tor:                                                             Note: See note under 97.923.

     (a) To be in violation of ORS 97.923 to                    97.949 Notification by director to ap-
97.949;                                                     propriate federal, state or local law en-
                                                            forcement officer of violation of ORS
     (b) To have liabilities that exceed assets;            97.923 to 97.949. (1) If the Director of the
     (c) To be unable to meet obligations as                Department of Consumer and Business Ser-
they come due; or                                           vices has reason to believe that a person has
     (d) To be in a financial condition that                violated any provision of ORS 97.923 to
fails to adequately protect the interests of                97.949, the director may give the information
customers.                                                  relative to the violation to the appropriate
                                                            federal, state or local law enforcement officer
     (2) In disciplining a certified provider,              having jurisdiction over the violation.
master trustee or person acting as a certified
provider or master trustee without certifica-                   (2) If the director, in the course of taking
tion or registration under subsection (1) of                an action against a certified provider, master
this section, the director may take the fol-                trustee or person acting as a certified pro-
lowing actions:                                             vider or master trustee without certification
                                                            or registration, finds that a salesperson or
     (a) Impose probation.                                  person acting as a salesperson has violated
     (b) Suspend the certificate or registra-               any provision of ORS 97.923 to 97.949, the
tion.                                                       director shall provide the State Mortuary
     (c) Revoke the certificate or registration.            and Cemetery Board with a copy of the find-
                                                            ings and the order of the director. The board
     (d) Place limitations on the certificate or            shall, upon receipt of such information, dis-
registration.                                               cipline the salesperson or person acting as a
     (e) Refuse to issue or renew a certificate             salesperson as required by law. [2001 c.796 §5;
or registration.                                            2003 c.362 §8; 2005 c.338 §3]
     (f) Issue an order to cease and desist                     Note: See note under 97.923.
from the activities that support the disci-                     97.950 [1995 c.717 §1; 1997 c.472 §4; 1999 c.201 §1;
                                                            2005 c.505 §1; repealed by 2007 c.681 §31]
pline.
     (g) Take any other disciplinary action                   REVISED UNIFORM ANATOMICAL
that the director finds proper, including as-                                GIFT ACT
sessment of the costs of the investigation and
disciplinary proceedings and assessment of a                   97.951 Short title. ORS 97.951 to 97.982
civil penalty not to exceed $10,000 per vio-                may be cited as the Revised Uniform Ana-
lation.                                                     tomical Gift Act. [2007 c.681 §1]
     (3) If the certificate or registration of a                 Note: 97.951 to 97.982 were enacted into law by the
                                                            Legislative Assembly but were not added to or made a
certified provider or master trustee is sus-                part of ORS chapter 97 or any series therein by legis-
pended under this section, the holder of the                lative action. See Preface to Oregon Revised Statutes
certificate or registration may not engage in               for further explanation.
the activities allowed by the certificate or                     97.952 [1995 c.717 §2; 1997 c.472 §5; 2005 c.505 §2;
registration during the term of suspension.                 repealed by 2007 c.681 §31]
Upon the expiration of the term of suspen-                      97.953 Definitions. As used in ORS
sion, the director shall reinstate the certif-              97.951 to 97.982:
icate or registration if the conditions for
which the certificate or registration was                       (1) “Adult” means an individual who is
suspended no longer exist.                                  18 years of age or older.
     (4) The director shall enter each case of                  (2) “Agent” means an:
disciplinary action on the records of the De-                   (a) Attorney-in-fact as that term is de-
partment of Consumer and Business Services.                 fined in ORS 127.505; or

Title 10                                             Page 35                                       (2007 Edition)
97.953                 PROPERTY RIGHTS AND TRANSACTIONS

     (b) Individual expressly authorized to       provision of the motor vehicle laws of an-
make an anatomical gift on the principal′s        other state.
behalf by any record signed by the principal.         (15) “Know” means to have actual know-
     (3) “Anatomical gift” means a donation       ledge.
of all or part of a human body to take effect         (16) “Minor” means an individual who is
after the donor′s death for the purpose of        under 18 years of age.
transplantation, therapy, research or educa-
tion.                                                 (17) “Organ procurement organization”
                                                  means an organization designated by the
     (4) “Body part” means an organ, an eye       Secretary of the United States Department
or tissue of a human being. The term does         of Health and Human Services as an organ
not include the whole body.                       procurement organization.
     (5) “Decedent” means a deceased individ-
ual whose body or body part is or may be the          (18) “Parent” means a parent whose par-
source of an anatomical gift, and includes a      ental rights have not been terminated.
stillborn infant or a fetus.                          (19) “Physician” means an individual au-
     (6)(a) “Disinterested witness” means a       thorized to practice medicine or osteopathy
witness other than:                               under the law of any state.
     (A) A spouse, child, parent, sibling,            (20) “Procurement organization” means
grandchild, grandparent or guardian of the        an eye bank, organ procurement organization
individual who makes, amends, revokes or          or tissue bank.
refuses to make an anatomical gift; or                (21) “Prospective donor” means an indi-
     (B) An adult who exhibited special care      vidual who is dead or near death and has
and concern for the individual.                   been determined by a procurement organiza-
                                                  tion to have a body part that could be med-
     (b) “Disinterested witness” does not in-     ically suitable for transplantation, therapy,
clude a person to whom an anatomical gift         research or education. The term does not in-
could pass under ORS 97.969.                      clude an individual who has made a refusal.
     (7) “Document of gift” means a donor             (22) “Reasonably available” means able
card or other record used to make an ana-         to be contacted by a procurement organiza-
tomical gift. The term includes a statement,      tion without undue effort and willing and
symbol or designation on a driver license,        able to act in a timely manner consistent
identification card or donor registry.            with existing medical criteria necessary for
     (8) “Donor” means an individual whose        the making of an anatomical gift.
body or body part is the subject of an ana-           (23) “Recipient” means an individual into
tomical gift.                                     whose body a decedent′s body part has been
     (9) “Donor registry” means a centralized     or is intended to be transplanted.
database that contains records of anatomical          (24) “Record” means information that is
gifts and amendments to or revocations of         inscribed on a tangible medium or that is
anatomical gifts.                                 stored in an electronic or other medium and
     (10) “Driver license” means a license or     is retrievable in perceivable form.
permit issued under ORS 807.040, 807.200 or
807.280, regardless of whether conditions are         (25) “Refusal” means a record that ex-
attached to the license or permit.                pressly states an intent to prohibit other
                                                  persons from making an anatomical gift of
     (11) “Eye bank” means an organization        an individual′s body or body part.
licensed, accredited or regulated under fed-
eral or state law to engage in the recovery,          (26) “Sign” means, with the present in-
screening, testing, processing, storage or dis-   tent to authenticate or adopt a record:
tribution of human eyes or portions of hu-            (a) To execute or adopt a tangible sym-
man eyes.                                         bol; or
     (12) “Guardian” means a person ap-               (b) To attach to or logically associate
pointed by a court to make decisions regard-      with the record an electronic symbol, sound
ing the support, care, education, health or       or process.
welfare of an individual. “Guardian” does not         (27) “State” means a state of the United
include a guardian ad litem.                      States, the District of Columbia, Puerto Rico,
     (13) “Hospital” means a facility licensed    the United States Virgin Islands or any ter-
as a hospital under the law of any state or       ritory or insular possession subject to the
a facility operated as a hospital by the          jurisdiction of the United States.
United States, a state or a subdivision of a          (28) “Technician” means an individual
state.                                            determined to be qualified to remove or
     (14) “Identification card” means the card    process body parts by an appropriate organ-
issued under ORS 807.400 or a comparable          ization that is licensed, accredited or regu-

Title 10                                    Page 36                              (2007 Edition)
               CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                                97.959

lated under federal or state law. The term                      (e) By authorizing that a statement, sym-
includes an enucleator.                                     bol or designation indicating that the donor
    (29) “Tissue” means a portion of the hu-                has made an anatomical gift is to be included
man body other than an organ or an eye. The                 on a donor registry.
term does not include blood unless the blood                    (2) If the donor or other person author-
is donated for the purpose of research or ed-               ized to make an anatomical gift under ORS
ucation.                                                    97.955 is physically unable to sign a record,
    (30) “Tissue bank” means a person that                  the record may be signed by another individ-
is licensed, accredited or regulated under                  ual at the direction of the donor or other
federal or state law to engage in the recov-                person and must:
ery, screening, testing, processing, storage or                 (a) Be witnessed by at least two adults,
distribution of tissue.                                     at least one of whom is a disinterested wit-
                                                            ness, who have signed at the request of the
    (31) “Transplant hospital” means a hos-                 donor or the other person; and
pital that furnishes organ transplants and
other medical and surgical specialty services                   (b) State that it has been signed and wit-
required for the care of transplant patients.               nessed as provided in paragraph (a) of this
[2007 c.681 §2]                                             subsection.
     Note: See note under 97.951.                               (3) Revocation, suspension, expiration or
     97.954 [1995 c.717 §3; 1997 c.472 §6; 1999 c.201 §2;   cancellation of a driver license or identifica-
2005 c.505 §3; repealed by 2007 c.681 §31]                  tion card upon which an anatomical gift is
                                                            indicated does not invalidate the gift.
     97.955 Purpose of anatomical gift;
persons authorized to make gift. (1) Sub-                       (4) An anatomical gift made by will takes
ject to ORS 97.963, a donor may make an                     effect upon the donor′s death whether or not
anatomical gift of a donor′s body or body                   the will is probated. Invalidation of the will
part during the life of the donor for the pur-              after the donor′s death does not invalidate
pose of transplantation, therapy, research or               the gift. [2007 c.681 §4]
education.                                                      Note: See note under 97.951.
     (2) An anatomical gift may be made in                      97.958 [1995 c.717 §5; 1997 c.472 §8; 1999 c.201 §4;
                                                            2005 c.505 §4; repealed by 2007 c.681 §31]
the manner provided in ORS 97.957 by:
                                                                97.959 Revocation or amendment of
     (a) The donor, if the donor is an adult or             anatomical gift before death of donor. (1)
if the donor is a minor and is:                             Except as provided in ORS 97.963, a donor
     (A) Emancipated; or                                    or other person authorized to make an ana-
     (B) Authorized under ORS 807.280 to ap-                tomical gift under ORS 97.955 may amend or
ply for an instruction driver permit because                revoke an anatomical gift by:
the donor is at least 15 years of age;                          (a) A record signed by:
     (b) An agent of the donor, unless the                      (A) The donor;
power of attorney for health care or other                      (B) The other person; or
record prohibits the agent from making an                       (C) Subject to subsection (2) of this sec-
anatomical gift;                                            tion, another individual acting at the direc-
     (c) A parent of the donor, if the donor is             tion of the donor or the other person if the
an unemancipated minor; or                                  donor or other person is physically unable to
     (d) The donor′s guardian. [2007 c.681 §3]              sign; or
     Note: See note under 97.951.                               (b) A later-executed document of gift that
     97.956 [1995 c.717 §4; 1997 c.472 §7; 1999 c.201 §3;
                                                            amends or revokes a previous anatomical gift
repealed by 2007 c.681 §31]                                 or portion of an anatomical gift, either ex-
                                                            pressly or by inconsistency.
    97.957 Methods of making anatomical
gift before death of donor. (1) A donor may                     (2) A record signed pursuant to subsec-
make an anatomical gift:                                    tion (1)(a)(C) of this section must:
    (a) By a designation on the donor′s driver                  (a) Be witnessed by at least two adults,
license or identification card;                             at least one of whom is a disinterested wit-
                                                            ness, who have signed at the request of the
    (b) In a will;                                          donor or the other person; and
    (c) During a terminal illness or injury of                  (b) State that it has been signed and wit-
the donor, by any form of communication                     nessed as required in this subsection.
addressed to at least two adults, at least one                  (3) Except as provided in ORS 97.963, a
of whom is a disinterested witness;                         donor or other person authorized to make an
    (d) By a donor card or other record                     anatomical gift under ORS 97.955 may revoke
signed by the donor or other person making                  an anatomical gift by the destruction or
the gift; or                                                cancellation of the document of gift, or the

Title 10                                             Page 37                                      (2007 Edition)
97.961                       PROPERTY RIGHTS AND TRANSACTIONS

portion of the document of gift used to make                  body or body part prohibits all other persons
the gift, with the intent to revoke the gift.                 from making an anatomical gift of the indi-
    (4) A donor may amend or revoke an an-                    vidual′s body or body part. [2007 c.681 §6]
atomical gift that was not made in a will by                     Note: See note under 97.951.
any form of communication during a termi-                        97.962 [1995 c.717 §7; repealed by 2007 c.681 §31]
nal illness or injury addressed to at least two
adults, at least one of whom is a disinter-                       97.963 Effect of making, amending or
ested witness.                                                revoking anatomical gift. (1) Except as
                                                              otherwise provided in subsection (7) of this
    (5) A donor who makes an anatomical                       section and subject to subsection (6) of this
gift in a will may amend or revoke the gift                   section, in the absence of an express, con-
in the manner provided for amendment or                       trary indication by the donor, a person other
revocation of wills or as provided in subsec-                 than the donor is prohibited from making,
tion (3) of this section. [2007 c.681 §5]                     amending or revoking an anatomical gift of
     Note: See note under 97.951.                             a donor′s body or body part if the donor
     97.960 [1995 c.717 §6; 1997 c.472 §9; repealed by 2007   made an anatomical gift of the donor′s body
c.681 §31]                                                    or body part under ORS 97.957 or an amend-
    97.961 Refusal to make anatomical                         ment to an anatomical gift of the donor′s
gift; effect of refusal. (1) An individual may                body or body part under ORS 97.959.
refuse to make an anatomical gift of the in-                      (2) A donor′s revocation of an anatomical
dividual′s body or body part by:                              gift of the donor′s body or body part under
    (a) A record signed by:                                   ORS 97.959 is not a refusal and does not
                                                              prohibit another person specified in ORS
    (A) The individual; or                                    97.955 or 97.965 from making an anatomical
    (B) Subject to subsection (2) of this sec-                gift of the donor′s body or body part under
tion, another individual acting at the direc-                 ORS 97.957 or 97.967.
tion of the individual if the individual is
physically unable to sign;                                        (3) If a person other than the donor
                                                              makes an unrevoked anatomical gift of the
    (b) The individual′s will, whether or not                 donor′s body or body part under ORS 97.957
the will is admitted to probate or invalidated                or an amendment to an anatomical gift of the
after the individual′s death; or                              donor′s body or body part under ORS 97.959,
    (c) Any form of communication made by                     another person may not make, amend or re-
the individual during the individual′s termi-                 voke the gift of the donor′s body or body part
nal illness or injury addressed to at least two               under ORS 97.967.
adults, at least one of whom is a disinter-                       (4) A revocation of an anatomical gift of
ested witness.                                                a donor′s body or body part under ORS
    (2) A record signed under subsection                      97.959 by a person other than the donor does
(1)(a)(B) of this section must:                               not prohibit another person from making an
                                                              anatomical gift of the body or body part un-
    (a) Be witnessed by at least two adults,                  der ORS 97.957 or 97.967.
at least one of whom is a disinterested wit-
ness, who have signed at the request of the                       (5) In the absence of an express, contrary
individual; and                                               indication by the donor or other person au-
    (b) State that it has been signed and wit-                thorized to make an anatomical gift under
nessed as provided in this subsection.                        ORS 97.955, an anatomical gift of a body part
                                                              is neither a refusal to give another body part
    (3) An individual who has made a refusal                  nor a limitation on the making of an ana-
may amend or revoke the refusal:                              tomical gift of another body part at a later
    (a) In the manner provided in subsection                  time by the donor or other person.
(1) of this section for making a refusal;                         (6) In the absence of an express, contrary
    (b) By subsequently making an anatom-                     indication by the donor or other person au-
ical gift pursuant to ORS 97.957 that is in-                  thorized to make an anatomical gift under
consistent with the refusal; or                               ORS 97.955, an anatomical gift of a body part
    (c) By destroying or canceling the record                 for one or more of the purposes set forth in
evidencing the refusal, or the portion of the                 ORS 97.955 is not a limitation on the making
record used to make the refusal, provided                     of an anatomical gift of the body part for any
that the destruction or cancellation is done                  of the other purposes by the donor or other
with the intent to revoke the refusal.                        person under ORS 97.957 or 97.967.
    (4) Except as otherwise provided in ORS                       (7) If a donor who is an unemancipated
97.963 (8), in the absence of an express, con-                minor dies, a parent of the donor who is
trary indication by the individual set forth in               reasonably available may revoke or amend
the refusal, an individual′s unrevoked refusal                an anatomical gift of the donor′s body or
to make an anatomical gift of the individual′s                body part.

Title 10                                               Page 38                                      (2007 Edition)
                CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                               97.969

    (8) If an unemancipated minor who                         person′s oral communication that is elec-
signed a refusal dies, a parent of the minor                  tronically recorded or is contemporaneously
who is reasonably available may revoke the                    reduced to a record and signed by the indi-
minor′s refusal. [2007 c.681 §7]                              vidual receiving the oral communication.
     Note: See note under 97.951.                                 (2) Subject to subsection (3) of this sec-
     97.964 [1995 c.717 §8; 2005 c.505 §5; repealed by 2007   tion, an anatomical gift by a person author-
c.681 §31]                                                    ized under ORS 97.965 may be amended or
     97.965 Persons authorized to make                        revoked orally or in a record by any member
anatomical gift of body or body part of                       of a prior class who is reasonably available.
decedent. (1) Subject to subsections (2) and                  If more than one member of the prior class
(3) of this section and unless prohibited by                  is reasonably available, the gift made by a
ORS 97.961 or 97.963, an anatomical gift of                   person authorized under ORS 97.965 may be:
a decedent′s body or body part for purpose                        (a) Amended only if a majority of the
of transplantation, therapy, research or edu-                 reasonably available members agree to
cation may be made by any member of the                       amendment of the gift; or
following classes of persons who is reason-                       (b) Revoked only if a majority of the
ably available, in the following order:                       reasonably available members agree to the
     (a) An agent of the decedent at the time                 revocation of the gift or if they are equally
of death who could have made an anatomical                    divided as to whether to revoke the gift.
gift under ORS 97.955 (2)(b) immediately be-                      (3) A revocation under subsection (2) of
fore the decedent′s death;                                    this section is effective only if, before an
     (b) The spouse of the decedent;                          incision has been made to remove a body
     (c) An adult child of the decedent;                      part from the donor′s body or before invasive
     (d) A parent of the decedent;                            procedures have begun to prepare the recipi-
                                                              ent, the procurement organization, transplant
     (e) An adult sibling of the decedent;                    hospital, physician or technician knows of
     (f) An adult grandchild of the decedent;                 the revocation. [2007 c.681 §9]
     (g) A grandparent of the decedent;                          Note: See note under 97.951.
                                                                 97.968 [Formerly 97.300; renumbered 97.985 in 2007]
     (h) An adult who exhibited special care
and concern for the decedent;                                      97.969 Authorized recipients of ana-
     (i) A guardian of the decedent at the time               tomical gifts; purposes for which gift
of death; or                                                  may be used. (1) An anatomical gift may be
                                                              made to the following persons named in the
     (j) Any other person having the authority                document of gift:
to dispose of the decedent′s body.
                                                                   (a) A hospital, accredited medical school,
     (2) If there is more than one member of                  dental school, college, university, organ pro-
a class listed in subsection (1) of this section              curement organization or other appropriate
entitled to make an anatomical gift, an ana-                  person, for research or education;
tomical gift may be made by a member of the
class unless that member or a person to                            (b) Subject to subsection (2) of this sec-
which the gift may pass under ORS 97.969                      tion, an individual designated by the person
knows of an objection by another member of                    making the anatomical gift if the individual
the class. If an objection is known, the gift                 is the recipient of the body part; or
may be made only by a majority of the mem-                         (c) An eye bank or tissue bank.
bers of the class who are reasonably avail-                        (2) If an anatomical gift to an individual
able.                                                         under subsection (1)(b) of this section cannot
     (3) A person may not make an anatomical                  be transplanted into the individual, the body
gift if, at the time of the decedent′s death, a               part passes in accordance with subsection (7)
person in a prior class under subsection (1)                  of this section in the absence of an express,
of this section is reasonably available to                    contrary indication by the person making the
make or to object to the making of an ana-                    anatomical gift.
tomical gift. [2007 c.681 §8]                                      (3) If an anatomical gift of one or more
     Note: See note under 97.951.                             specific body parts or of all body parts is
     97.966 [Formerly 97.295; 2007 c.681 §30; renumbered      made in a document of gift that does not
97.984 in 2007]                                               name a person described in subsection (1) of
   97.967 Methods for making, amending                        this section but identifies the purpose for
or revoking anatomical gift of body or                        which an anatomical gift may be used, the
body part of decedent by authorized per-                      following rules apply:
son. (1) A person authorized to make an an-                        (a) If the body part is an eye and the gift
atomical gift under ORS 97.965 may make an                    is for the purpose of transplantation or ther-
anatomical gift by a document of gift signed                  apy, the gift passes to the appropriate eye
by the person making the gift or by that                      bank.

Title 10                                               Page 39                                     (2007 Edition)
97.970                 PROPERTY RIGHTS AND TRANSACTIONS

     (b) If the body part is tissue and the gift       (10) A person may not accept an anatom-
is for the purpose of transplantation or ther-     ical gift if the person knows that the gift was
apy, the gift passes to the appropriate tissue     not effectively made under ORS 97.957 or
bank.                                              97.967 or if the person knows that the dece-
     (c) If the body part is an organ and the      dent made a refusal under ORS 97.961 that
gift is for the purpose of transplantation or      was not revoked. For purposes of this sub-
therapy, the gift passes to the appropriate        section, if a person knows that an anatomical
organ procurement organization as custodian        gift was made on a document of gift, the
of the organ.                                      person is deemed to know of any amendment
                                                   or revocation of the gift or any refusal to
     (d) If the body part is an organ, an eye      make an anatomical gift on the same docu-
or tissue and the gift is for the purpose of       ment of gift.
research or education, the gift passes to the
appropriate procurement organization.                  (11) Except as otherwise provided in sub-
                                                   section (1)(b) of this section, ORS 97.951 to
     (4) For the purposes of subsection (3) of     97.982 do not affect the allocation of organs
this section, if there is more than one pur-       for transplantation or therapy. [2007 c.681 §10]
pose of an anatomical gift set forth in the            Note: See note under 97.951.
document of gift but the purposes are not set
forth in any priority, the gift must be used            97.970 Search for document of ana-
for transplantation or therapy, if suitable. If    tomical gift or refusal; duty to send doc-
the gift cannot be used for transplantation        ument or refusal to hospital. (1) The
or therapy, the gift may be used for research      following persons shall make a reasonable
or education.                                      search of an individual who the persons rea-
                                                   sonably believe is dead or near death for a
     (5) If an anatomical gift of one or more      document of gift or other information identi-
specific body parts is made in a document of       fying the individual as a donor or as an in-
gift that does not name a person described in      dividual who made a refusal:
subsection (1) of this section and does not
identify the purpose of the gift, the gift may          (a) A law enforcement officer, firefighter,
be used only for transplantation or therapy,       paramedic or other emergency rescuer find-
and the gift passes in accordance with sub-        ing the individual; and
section (7) of this section.                            (b) If no other source of the information
     (6) If a document of gift specifies only a    is immediately available, a hospital, as soon
general intent to make an anatomical gift by       as practicable after the individual′s arrival
words such as “donor,” “organ donor” or            at the hospital.
“body donor” or by a symbol or statement of             (2) If a document of gift or a refusal to
similar import, the gift may be used only for      make an anatomical gift is located by the
transplantation or therapy, and the gift           search required by subsection (1)(a) of this
passes in accordance with subsection (7) of        section and the individual or deceased indi-
this section.                                      vidual to whom it relates is taken to a hos-
     (7) For purposes of subsections (2), (5)      pital, the person responsible for conducting
and (6) of this section, the following rules       the search shall send the document of gift or
apply:                                             the refusal to the hospital.
     (a) If the body part is an eye, the gift           (3) A person is not subject to criminal or
passes to the appropriate eye bank.                civil liability for failing to discharge the du-
                                                   ties imposed by this section but may be sub-
     (b) If the body part is tissue, the gift      ject to administrative sanctions. [2007 c.681 §11]
passes to the appropriate tissue bank.
                                                       Note: See note under 97.951.
     (c) If the body part is an organ, the gift
passes to the appropriate organ procurement            97.971 Delivery of document of gift or
organization as custodian of the organ.            refusal not required; right to examine. (1)
                                                   A document of gift need not be delivered
     (8) An anatomical gift of an organ for        during the donor′s lifetime to be effective.
transplantation or therapy, other than an              (2) Upon or after an individual′s death, a
anatomical gift under subsection (1)(b) of this    person in possession of a document of gift or
section, passes to the organ procurement or-       a refusal to make an anatomical gift with
ganization as custodian of the organ.              respect to the individual shall allow exam-
     (9) If an anatomical gift does not pass       ination and copying of the document of gift
pursuant to subsections (1) to (8) of this sec-    or the refusal by a person authorized to
tion or the decedent′s body or body part is        make or object to the making of an anatom-
not used for transplantation, therapy, re-         ical gift with respect to the individual or by
search or education, custody of the body or        a person to whom the gift could pass under
body part passes to the person under obli-         ORS 97.969. [2007 c.681 §12]
gation to dispose of the body or body part.            Note: See note under 97.951.

Title 10                                     Page 40                                  (2007 Edition)
            CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                       97.974

    97.972 Rights and duties of procure-         amended or revoked, it shall promptly advise
ment organizations and others; author-           the other person of all relevant information.
ized examinations. (1) When a hospital               (8) Subject to ORS 97.969 (9) and 97.980,
refers an individual at or near death to a       the rights of the person to whom a body part
procurement organization, the organization       passes under ORS 97.969 are superior to the
shall make a reasonable search of the re-        rights of all others with respect to the body
cords of the Department of Transportation        part. The person may accept or reject an an-
and any donor registry that it knows exists      atomical gift in whole or in part. Subject to
for the geographical area in which the indi-     the terms of the document of gift and ORS
vidual resides to ascertain whether the indi-    97.951 to 97.982, a person who accepts an
vidual has made an anatomical gift.              anatomical gift of an entire body may allow
    (2) A procurement organization must be       embalming, burial or cremation and use of
allowed reasonable access to information in      remains in a funeral service. If the gift is of
                                                 a body part, the person to whom the body
the records of the Department of Transpor-       part passes under ORS 97.969, upon the
tation to ascertain whether an individual at     death of the donor and before embalming,
or near death is a donor.                        burial or cremation, shall cause the body
    (3) When a hospital refers an individual     part to be removed without unnecessary
at or near death to a procurement organiza-      mutilation.
tion, the organization may conduct any rea-          (9) Neither the physician who attends the
sonable examination necessary to ensure the      decedent at death nor the physician who de-
medical suitability of a body part that is or    termines the time of the decedent′s death
could be the subject of an anatomical gift for   may participate in the procedures for remov-
transplantation, therapy, research or educa-     ing or transplanting a body part from the
tion from a donor or a prospective donor.        decedent.
During the examination period, measures              (10) A physician or technician may re-
necessary to ensure the medical suitability      move from the body of a donor a donated
of the body part may not be withdrawn un-        body part that the physician or technician is
less the hospital or procurement organization    qualified to remove. [2007 c.681 §13]
knows that the individual expressed a con-           Note: See note under 97.951.
trary intent.
                                                      97.973 Coordination of procurement
    (4) Unless otherwise prohibited by law,      and use of anatomical gifts. Each hospital
at any time after a donor′s death, the person    in this state shall enter into agreements or
to whom a body part passes under ORS             affiliations with procurement organizations
97.969 may conduct any reasonable examina-       for coordination of procurement and use of
tion necessary to ensure the medical suit-       anatomical gifts. [2007 c.681 §14]
ability of the body or body part for its
                                                     Note: See note under 97.951.
intended purpose.
    (5) Unless otherwise prohibited by law,          97.974 Immunity of persons acting in
an examination under subsection (3) or (4) of    accordance with ORS 97.951 to 97.982. (1)
this section may include an examination of       A person who acts in accordance with ORS
all medical and dental records of the donor      97.951 to 97.982 or with the applicable ana-
or prospective donor.                            tomical gift law of another state, or attempts
                                                 in good faith to do so, is not liable for the
    (6) Upon the death of a minor who was        act in a civil action, criminal prosecution or
a donor or had signed a refusal, unless a        administrative proceeding.
procurement organization knows the minor             (2) Neither the person making an ana-
is emancipated, the procurement organiza-        tomical gift nor the donor′s estate is liable
tion shall conduct a reasonable search for       for any injury or damage that results from
the parents of the minor and provide the         the making or use of the gift.
parents with an opportunity to revoke or
                                                     (3) In determining whether an anatomical
amend the anatomical gift or revoke the re-      gift has been made, amended or revoked un-
fusal.                                           der ORS 97.951 to 97.982, a person may rely
    (7) Upon referral by a hospital under        upon representations of an individual listed
subsection (1) of this section, a procurement    in ORS 97.965 (1)(b), (c), (d), (e), (f), (g) or (h)
organization shall make a reasonable search      relating to the individual′s relationship to
for any person listed in ORS 97.965 having       the donor or prospective donor unless the
priority to make an anatomical gift on behalf    person knows that the representation is un-
of a prospective donor. If a procurement or-     true. [2007 c.681 §15]
ganization receives information that an ana-         Note: See note under 97.951.
tomical gift to any other person was made,           97.975 [Formerly 97.930; renumbered 97.987 in 2007]




Title 10                                   Page 41                                     (2007 Edition)
97.976                     PROPERTY RIGHTS AND TRANSACTIONS

     97.976 Law governing validity of doc-        ization to obtain relevant information on the
ument of gift; presumption of validity. (1)       donor registry to determine, at or near death
A document of gift is valid if executed in        of the donor or a prospective donor, whether
accordance with:                                  the donor or prospective donor has made,
     (a) ORS 97.951 to 97.982;                    amended or revoked an anatomical gift; and
     (b) The laws of the state or country             (c) Be accessible for purposes of this
where it was executed; or                         subsection seven days a week on a 24-hour
                                                  basis.
     (c) The laws of the state or country
where the person making the anatomical gift           (4) Personally identifiable information on
was domiciled, had a place of residence or        the donor registry about a donor or prospec-
was a national at the time the document of        tive donor may not be used or disclosed
gift was executed.                                without the express consent of the donor,
                                                  prospective donor or person who made the
     (2) If a document of gift is valid under     anatomical gift for any purpose other than to
this section, the law of this state governs the   determine, at or near death of the donor or
interpretation of the document of gift.           prospective donor, whether the donor or pro-
     (3) A person may presume that a docu-        spective donor has made, amended or re-
ment of gift or amendment of an anatomical        voked an anatomical gift. [2007 c.681 §17]
gift is valid unless that person knows that it        Note: See note under 97.951.
was not validly executed or was revoked.
[2007 c.681 §16]                                      97.978 Resolution of conflict between
     Note: See note under 97.951.                 potential anatomical gift and advance di-
                                                  rective. (1) As used in this section:
     97.977 Donor registry; duty of Depart-
ment of Transportation to cooperate with              (a) “Advance directive” has the meaning
donor registry. (1)(a) The Department of          given that term in ORS 127.505.
Human Services may allow an organ pro-                (b) “Declaration” means a record signed
curement organization to establish a donor        by a prospective donor specifying the cir-
registry.                                         cumstances under which a life support sys-
     (b) Only one donor registry may be es-       tem may be withheld or withdrawn from the
tablished within this state.                      prospective donor.
     (c) The donor registry shall comply with         (c) “Health care decision” means any de-
subsections (3) and (4) of this section.          cision regarding the health care of a pro-
                                                  spective donor.
     (2) The Department of Transportation
shall:                                                (2) If a prospective donor has a declara-
                                                  tion or advance directive and the terms of
     (a) Cooperate with a person who admin-       the declaration or advance directive and the
isters the donor registry established under       express or implied terms of a potential ana-
subsection (1) of this section for the purpose    tomical gift are in conflict regarding admin-
of transferring to the donor registry all rele-   istration of measures necessary to ensure the
vant information regarding a donor′s making,      medical suitability of a body part for trans-
amending or revoking an anatomical gift.          plantation, therapy, research or education,
     (b) When requested by the organ pro-         the prospective donor and the prospective
curement organization that has established        donor′s attending physician shall confer to
the donor registry in this state, the depart-     resolve the conflict.
ment shall electronically transfer to the or-
gan procurement organization the name,                (3) If the prospective donor is incapable
address, birthdate and donor designation          of resolving the conflict, one of the following
listed on the driver license or identification    persons shall act for the prospective donor
card of a person designated as a donor. The       to resolve the conflict:
organ procurement organization shall treat            (a) An agent acting under the prospective
the information transferred from the depart-      donor′s declaration or advance directive; or
ment as confidential and may use the infor-           (b) If an agent is not named in the dec-
mation only to expedite the making of             laration or advance directive or the agent is
anatomical gifts authorized by the donor.         not reasonably available, another person au-
     (3) The donor registry must:                 thorized by law, other than in ORS 97.951 to
     (a) Allow a donor or other person au-        97.982, to make health care decisions for the
thorized under ORS 97.955 to include on the       prospective donor.
donor registry a statement or symbol that             (4) The conflict must be resolved as ex-
the donor has made, amended or revoked an         peditiously as possible.
anatomical gift;                                      (5) Information relevant to the resolution
     (b) Be accessible to a procurement or-       of the conflict may be obtained from the ap-
ganization to allow the procurement organ-        propriate procurement organization and any

Title 10                                    Page 42                                  (2007 Edition)
             CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                               97.980

person authorized under ORS 97.965 to make        to transplantation, therapy, research or edu-
an anatomical gift for the prospective donor.     cation.
    (6) During the resolution of the conflict,        (2) The medical examiner may conduct a
measures necessary to ensure the medical          medicolegal examination by reviewing all
suitability of the body part may not be with-     medical records, laboratory test results, X-
held or withdrawn from the prospective do-        rays, other diagnostic results and other in-
nor unless withholding or withdrawing the         formation that any person possesses about a
measures is medically indicated by appropri-      donor or prospective donor whose body is
ate end of life care. [2007 c.681 §18]            under the jurisdiction of the medical exam-
   Note: See note under 97.951.                   iner that the medical examiner determines
                                                  may be relevant to the investigation.
    97.979 Cooperation between medical
examiner and procurement organization.                (3) A person who has any information
(1) A medical examiner shall cooperate with       requested by a medical examiner pursuant to
procurement organizations to maximize the         subsection (2) of this section shall provide
opportunity to recover anatomical gifts for       that information as expeditiously as possible
the purpose of transplantation, therapy, re-      to allow the medical examiner to conduct the
search or education.                              medicolegal investigation within a period
                                                  compatible with the preservation of body
    (2) Subject to ORS 97.980, if a medical       parts for the purpose of transplantation,
examiner receives notice from a procurement       therapy, research or education.
organization that an anatomical gift might
be available or was made with respect to a            (4) If an anatomical gift has been or
decedent whose body is under the jurisdic-        might be made of a body part of a decedent
tion of the medical examiner and a post-          whose body is under the jurisdiction of the
mortem examination is going to be                 medical examiner and a post-mortem exam-
performed, the medical examiner or designee       ination is not required, or the medical exam-
shall conduct a post-mortem examination of        iner    determines    that    a   post-mortem
the body or the body part in a manner and         examination is required but that the recov-
within a period compatible with its preserva-     ery of the body part that is the subject of an
tion for the purposes of the gift.                anatomical gift will not interfere with the
                                                  examination, the medical examiner and pro-
    (3) A body part may not be removed from       curement organization shall cooperate in the
the body of a decedent under the jurisdiction     timely removal of the body part from the de-
of a medical examiner for transplantation,        cedent for the purpose of transplantation,
therapy, research or education unless the
body part is the subject of an anatomical gift.   therapy, research or education.
The body of a decedent under the jurisdiction         (5) If an anatomical gift of a body part
of the medical examiner may not be delivered      from the decedent under the jurisdiction of
to a person for research or education unless      the medical examiner has been or might be
the body is the subject of an anatomical gift.    made, but the medical examiner initially be-
This subsection does not preclude a medical       lieves that the recovery of the body part
examiner from performing the medicolegal          could interfere with the post-mortem investi-
investigation upon the body or body parts of      gation into the decedent′s cause or manner
a decedent under the jurisdiction of the          of death, the medical examiner shall consult
medical examiner. [2007 c.681 §19]                with the procurement organization, or physi-
   Note: See note under 97.951.                   cian or technician designated by the pro-
    97.980 Facilitation of anatomical gift        curement organization, about the proposed
from decedent whose body is under juris-          recovery. The procurement organization shall
diction of medical examiner. (1) Upon re-         provide the medical examiner with all of the
quest of a procurement organization, a            information that the procurement organiza-
medical examiner shall release to the pro-        tion possesses that could relate to the dece-
curement organization the name, contact in-       dent′s cause or manner of death.
formation and available medical and social            (6)(a) The medical examiner and the pro-
history of a decedent whose body is under         curement organization may enter into an
the jurisdiction of the medical examiner. If      agreement establishing protocols and proce-
the decedent′s body or body part is medically     dures governing their relationship when:
suitable for transplantation, therapy, re-
search or education, the medical examiner             (A) An anatomical gift of a body part
shall release post-mortem examination re-         from a decedent whose body is under the ju-
sults to the procurement organization. The        risdiction of the medical examiner has been
procurement organization may make a sub-          or might be made; and
sequent disclosure of the post-mortem exam-           (B) The medical examiner believes that
ination results or other information received     the recovery of the body part could interfere
from the medical examiner only if relevant        with the post-mortem investigation into the

Title 10                                    Page 43                              (2007 Edition)
97.981                 PROPERTY RIGHTS AND TRANSACTIONS

decedent′s cause or manner of death or the        examiner in any documentation of injuries
documentation or preservation of evidence.        and the preservation and collection of evi-
    (b) A decision regarding the recovery of      dence prior to and during the recovery of the
the body part from the decedent shall be          body part and, upon request of the medical
made in accordance with the agreement.            examiner, shall cause the physician or tech-
                                                  nician who removes the body part to provide
    (c) The medical examiner and the pro-         the medical examiner with a record describ-
curement organization shall evaluate the ef-      ing the condition of the body part, a photo-
fectiveness of the agreement at regular           graph and any other information and
intervals but not less frequently than every      observations that would assist in the post-
two years.                                        mortem examination. [2007 c.681 §20]
    (7)(a) In the absence of an agreement es-         Note: See note under 97.951.
tablishing protocols and procedures govern-
ing the relationship between the medical              97.981 Purchase or sale of body parts
examiner and the procurement organization         prohibited. (1) Except as otherwise provided
when an anatomical gift of an eye or tissue       in subsection (3) of this section, a person
from a decedent whose body is under the ju-       commits the crime of purchase or sale of a
risdiction of the medical examiner has been       body part for transplantation or therapy if
or might be made, and following the consul-       the person, for valuable consideration, know-
tation under subsection (5) of this section,      ingly purchases or sells a body part for
the medical examiner may delay the recovery       transplantation or therapy if removal of the
of the eye or tissue until after the collection   body part from an individual is intended to
of evidence or the post-mortem examination,       occur after the individual′s death.
in order to preserve and collect evidence, to         (2) Purchase or sale of a body part for
maintain a proper chain of custody and to         transplantation or therapy is a Class C fel-
allow an accurate determination of the dece-      ony.
dent′s cause or manner of death.                      (3) A person may charge a reasonable
    (b) When a determination to delay the         amount for the removal, processing, preser-
recovery of an eye or tissue is made, every       vation, quality control, storage, transporta-
effort possible shall be made by the medical      tion, implantation or disposal of a body part.
examiner to complete the collection of evi-       [2007 c.681 §21]
dence or the post-mortem examination in a             Note: See note under 97.951.
timely manner compatible with the preserva-
tion of the eye or tissue for the purpose of          97.982 Alteration of document of ana-
transplantation, therapy, research or educa-      tomical gift prohibited. (1) A person com-
tion.                                             mits the crime of alteration of a document
                                                  of gift if the person, in order to obtain a fi-
    (c) The collection of evidence or the         nancial gain, intentionally falsifies, forges,
post-mortem examination shall occur during
the normal business hours of the medical ex-      conceals, defaces or obliterates a document
aminer and, when possible and practicable,        of gift, an amendment or revocation of a
at times other than the normal business           document of gift or a refusal.
hours of the medical examiner.                        (2) Alteration of a document of gift is a
    (d) If the collection of evidence or the      Class C felony. [2007 c.681 §22]
post-mortem examination occurs at times               Note: See note under 97.951.
other than the normal business hours of the            97.983 Relation to Electronic Signa-
medical examiner, the procurement organiza-       tures in Global and National Commerce
tion shall reimburse the medical examiner a       Act. The provisions of ORS 97.951 to 97.982
mutually agreed-upon reasonable fee.              modify, limit and supersede the Electronic
    (8) If the medical examiner denies or de-     Signatures in Global and National Commerce
lays recovery under subsection (6) or (7) of      Act, 15 U.S.C. 7001 et seq., but do not mod-
this section, the medical examiner shall:         ify, limit or supersede section 101(a) of the
    (a) Explain in a record the specific rea-     Electronic Signatures in Global and National
sons for not allowing or for delaying recov-      Commerce Act, 15 U.S.C. 7001, or authorize
ery of the body part;                             electronic delivery of any of the notices de-
                                                  scribed in section 103(b) of the Electronic
    (b) Include the specific reasons in the       Signatures in Global and National Commerce
records of the medical examiner; and              Act, 15 U.S.C. 7003(b) as in effect January
    (c) Provide a record with the specific        1, 2008. [2007 c.681 §23]
reasons to the procurement organization.               Note: 97.983 was enacted into law by the Legisla-
                                                  tive Assembly but was not added to or made a part of
    (9) If the medical examiner allows recov-     ORS chapter 97 or any series therein by legislative ac-
ery of a body part, the procurement organ-        tion. See Preface to Oregon Revised Statutes for further
ization shall cooperate with the medical          explanation.

Title 10                                    Page 44                                     (2007 Edition)
             CEMETERIES, HUMAN BODIES AND ANATOMICAL GIFTS                                           97.994

           ANATOMICAL GIFTS                       mutilated so that it is not valuable for ana-
    97.984 Liability of executor who car-         tomical purposes or who refuses or neglects
ries out anatomical gift. A person named          to perform any of the duties enjoined upon
executor who carries out an anatomical gift       the officer, agent or employee by ORS 97.170
of the testator made under the provisions of      to 97.210, is guilty of a misdemeanor and
ORS 97.957 before issuance of letters testa-      upon conviction is punishable by a fine of
mentary or under a will which is not admit-       not more than $50 for each offense.
ted to probate shall not be liable to the             (3) Violation of ORS 97.520, 97.530 or
surviving spouse or next of kin for perform-      97.540 is a misdemeanor.
ing acts necessary to carry out the gift of the       (4) Any person, association or corpo-
testator. [Formerly 97.966]                       ration who operates a cemetery, mausoleum
    97.985 Transplants not covered by im-         or columbarium contrary to the provisions
plied warranty. (1) The procuring, process-       of ORS 97.020 to 97.040, 97.110 to 97.130,
ing, furnishing, distributing, administering or   97.145, 97.150, 97.220, 97.310 to 97.360 (1),
using of any part of a human body for the         97.440, 97.510 to 97.560, 97.710, 97.720, 97.810,
purpose of injecting, transfusing or trans-       97.820, 97.830 and 97.840 to 97.860 is guilty
planting that part into a human body is not       of maintaining a nuisance and, upon con-
a sales transaction covered by an implied         viction, is punishable by a fine not exceeding
warranty under the Uniform Commercial             $500 or by imprisonment in the county jail
Code or otherwise.                                for not more than six months, or both.
    (2) As used in this section, “part” means         (5)(a) Violation of ORS 97.745 is a Class
organs or parts of organs, tissues, eyes or       C felony.
parts of eyes, bones, arteries, blood, other          (b) In addition to any other sentence
fluids and any other portions of a human          provided by law for criminal violations of
body. [Formerly 97.968]                           ORS 97.745, the judge shall impose a penalty
                                                  not to exceed $10,000 on any person con-
    FEDERAL AID FOR CEMETERIES                    victed of a criminal violation of ORS 97.745.
    97.987 Department of Transportation               (6) In addition to the penalty of subsec-
use of federal moneys for cemetery care.          tion (5) of this section, any native Indian ar-
(1) In addition to any other duties of the De-    tifacts or human remains taken by, or in
partment of Transportation, the department        possession of, any person sentenced under
may apply for, accept and expend, use or          subsection (5) of this section and all equip-
dispose of moneys and property received from      ment used in the violation may be ordered
the federal government for the purpose of         forfeited by the court in which conviction
establishing any program of restoration, care,    occurs, and may be disposed of as the court
maintenance and preservation of cemeteries.       directs. [Subsections (5) to (7) enacted as 1977 c.183
The department shall administer any funds         §12; subsection (8) enacted as 1977 c.647 §4; 1979 c.420
received pursuant to this section in accor-       §3; 1983 c.526 §6; 1985 c.198 §5; subsections (5) to (7) re-
                                                  numbered 127.990 in 1991; subsection (5)(b) of 1995 Edi-
dance with the conditions established by the      tion enacted as 1995 c.543 §3]
federal government.
                                                      97.992 Penalties for ORS 97.937. Vio-
    (2) In carrying out the provisions of sub-    lation of any of the provisions of ORS 97.937
section (1) of this section the Department of     is punishable, upon conviction, by a fine not
Transportation may contract or consult with       exceeding $1,000, or imprisonment in the
any nonprofit corporation established for the     county jail not exceeding one year, or both.
purpose of promoting cemetery care and            [Formerly 128.990]
maintenance. [Formerly 97.975]                         Note: 97.992 was enacted into law by the Legisla-
                                                  tive Assembly but was not added to or made a part of
                 PENALTIES                        ORS chapter 97 or any series therein by legislative ac-
                                                  tion. See Preface to Oregon Revised Statutes for further
    97.990 Penalties. (1) Violation of ORS        explanation.
97.160 is a misdemeanor and upon conviction
is punishable by a fine not exceeding $100.           97.994 Penalties for ORS 97.931, 97.933
                                                  and 97.941. Violation of any of the pro-
    (2) Every officer, agent or employee of       visions of ORS 97.931, 97.933, 97.941 or 97.943
this state or of any county, city or any other    is punishable as a Class A misdemeanor.
municipal subdivision thereof who willfully       [Formerly 128.991; 2003 c.362 §9]
neglects to notify the Demonstrator of Anat-           Note: 97.994 was enacted into law by the Legisla-
omy of the existence of a body as required        tive Assembly but was not added to or made a part of
by ORS 97.170 to 97.210 or who refuses to         ORS chapter 97 or any series therein by legislative ac-
deliver possession of such body according to      tion. See Preface to Oregon Revised Statutes for further
                                                  explanation.
the provisions of ORS 97.170 to 97.210 or who
mutilates or permits any such body to be



Title 10                                    Page 45                                        (2007 Edition)
           PROPERTY RIGHTS AND TRANSACTIONS




Title 10                Page 46               (2007 Edition)

				
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