N.Y. PBH. LAW § 4201 : NY Code - Section 4201: Disposition of remains; responsibility therefor

Search N.Y. PBH. LAW § 4201 : NY Code - Section 4201: Disposition of remains; responsibility therefor

1. As used in
  this  section,  the  following  terms shall have the following meanings,
  unless the context otherwise requires:
    (a) "Cremation" means the incineration of human remains.
    (b) "Disposition" means the care,  disposal,  transportation,  burial,
  cremation  or embalming of the body of a deceased person, and associated
  measures.
    (c) "Domestic partner" means a person who,  with  respect  to  another
  person:
    (i)  is  formally  a  party  in  a  domestic  partnership  or  similar
  relationship with the other person, entered into pursuant to the laws of
  the United States or  any  state,  local  or  foreign  jurisdiction,  or
  registered  as  the  domestic  partner  of  the person with any registry
  maintained by the employer of either party or any  state,  municipality,
  or foreign jurisdiction; or
    (ii)  is  formally recognized as a beneficiary or covered person under
  the other person's employment benefits or health insurance; or
    (iii) is dependent or mutually interdependent on the other person  for
  support,  as evidenced by the totality of the circumstances indicating a
  mutual intent to be domestic partners  including  but  not  limited  to:
  common  ownership  or joint leasing of real or personal property; common
  householding, shared income or  shared  expenses;  children  in  common;
  signs  of intent to marry or become domestic partners under subparagraph
  (i)  or  (ii)  of  this  paragraph;  or  the  length  of  the   personal
  relationship of the persons.
    Each  party  to  a  domestic partnership shall be considered to be the
  domestic partner of  the  other  party.  "Domestic  partner"  shall  not
  include a person who is related to the other person by blood in a manner
  that would bar marriage to the other person in New York state. "Domestic
  partner"  shall  also  not  include any person who is less than eighteen
  years of age or who is the adopted child of the other person or  who  is
  related  by  blood in a manner that would bar marriage in New York state
  to a person who is the lawful spouse of the other person.
    (d) "Person" means a natural person eighteen years of age or older.
    2. (a) The following persons in descending  priority  shall  have  the
  right to control the disposition of the remains of such decedent:
    (i) the person designated in a written instrument executed pursuant to
  the provisions of this section;
    (ii) the decedent's surviving spouse;
    (ii-a) the decedent's surviving domestic partner;
    (iii)  any  of the decedent's surviving children eighteen years of age
  or older;
    (iv) either of the decedent's surviving parents;
    (v) any of the decedent's surviving siblings eighteen years of age  or
  older;
    (vi) a guardian appointed pursuant to article seventeen or seventeen-A
  of  the  surrogate's  court  procedure  act or article eighty-one of the
  mental hygiene law;
    (vii) any person eighteen years of age or older who would be  entitled
  to  share in the estate of the decedent as specified in section 4-1.1 of
  the  estates,  powers  and  trusts  law,  with  the  person  closest  in
  relationship having the highest priority;
    (viii) a duly appointed fiduciary of the estate of the decedent;
    (ix)  a  close  friend or relative who is reasonably familiar with the
  decedent's wishes, including the decedent's religious or moral  beliefs,
  when  no  one  higher  on this list is reasonably available, willing, or
  competent to act, provided that  such  person  has  executed  a  written
  statement pursuant to subdivision seven of this section; or

    (x)  a  chief  fiscal  officer  of  a county or a public administrator
  appointed pursuant to article twelve  or  thirteen  of  the  surrogate's
  court  procedure  act,  or  any  other  person  acting  on behalf of the
  decedent, provided that such person has  executed  a  written  statement
  pursuant to subdivision seven of this section.
    (b)  If a person designated to control the disposition of a decedent's
  remains, pursuant to this  subdivision,  is  not  reasonably  available,
  unwilling  or not competent to serve, and such person is not expected to
  become reasonably available, willing or competent, then those persons of
  equal priority and,  if  there  be  none,  those  persons  of  the  next
  succeeding  priority  shall have the right to control the disposition of
  the decedent's remains.
    (c) The person in control of disposition, pursuant  to  this  section,
  shall  faithfully carry out the directions of the decedent to the extent
  lawful  and  practicable,  including  consideration  of  the   financial
  capacity of the decedent's estate and other resources made available for
  disposition  of  the remains. The person in control of disposition shall
  also dispose of the decedent in a manner appropriate to  the  moral  and
  individual beliefs and wishes of the decedent provided that such beliefs
  and  wishes  do  not  conflict  with the directions of the decedent. The
  person in control of disposition may seek to recover any  costs  related
  to  the  disposition  from  the  fiduciary  of  the decedent's estate in
  accordance with section eighteen hundred eleven of the surrogate's court
  procedure act.
    (d) No funeral director, undertaker, embalmer or  no  person  with  an
  interest  in,  or  who  is  an  employee  of  any funeral firm, cemetery
  organization or business operating a crematory, columbarium or any other
  business, who also controls the disposition  of  remains  in  accordance
  with  this  section,  shall  receive  compensation  or otherwise receive
  financial benefit for disposing of the remains of a decedent.
    3. The written instrument referred to in paragraph (a) of  subdivision
  two of this section may be in substantially the following form, and must
  be  signed  and  dated  by  the  decedent  and  the  agent  and properly
  witnessed:
           APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
 
  I, _____________________________________________________________________
                           (Your name and address)
  being of sound mind, willfully and  voluntarily  make  known  my  desire
  that, upon my death, the disposition of my remains shall be controlled
  by ___________________________________________________________________ .
  (name of agent)
  With  respect  to  that subject only, I hereby appoint such person as my
  agent with respect to the disposition of my remains.
 
  SPECIAL DIRECTIONS:
 
  Set forth below are any special directions limiting the power granted to
  my agent as well as any instructions or wishes desired to be followed in
  the disposition of my remains:
  ________________________________________________________________________
  ________________________________________________________________________
  ________________________________________________________________________
  ________________________________________________________________________
  ________________________________________________________________________

    Indicate  below  if  you  have  entered  into  a  pre-funded  pre-need
  agreement  subject  to  section  four hundred fifty-three of the general
  business law for funeral merchandise or service in advance of need:
    [] No, I have not entered into a pre-funded pre-need agreement subject
  to section four hundred fifty-three of the general business law.
    [] Yes, I have entered into a pre-funded pre-need agreement subject to
  section four hundred fifty-three of the general business law.
 
  ________________________________________________________________________
  (Name  of funeral firm with which you entered into a pre-funded pre-need
  funeral agreement to provide merchandise and/or services)
 
  AGENT:
  Name: __________________________________________________________________
  Address: _______________________________________________________________
  Telephone Number: ______________________________________________________
 
  SUCCESSORS:
 
    If my agent dies, resigns, or is unable to act, I hereby  appoint  the
  following  persons  (each  to  act  alone and successively, in the order
  named) to serve as my agent to control the disposition of my remains  as
  authorized by this document:
  1. First Successor
  Name: __________________________________________________________________
  Address: _______________________________________________________________
  Telephone Number: ______________________________________________________
 
  2. Second Successor
  Name: __________________________________________________________________
  Address: _______________________________________________________________
  Telephone Number: ______________________________________________________
 
  DURATION:
 
  This appointment becomes effective upon my death.
  PRIOR APPOINTMENT REVOKED:
    I  hereby  revoke  any  prior appointment of any person to control the
  disposition of my remains.
 
  Signed this____________________day of__________,____________.
  ________________________________________________________________________
  (Signature of person making the appointment)
 
  Statement by witness (must be 18 or older)
 
  I declare that the person who executed this document is personally known
  to me and appears to be of sound mind and acting  of  his  or  her  free
  will.  He  or  she signed (or asked another to sign for him or her) this
  document in my presence.
 
  Witness 1: __________________ (signature)
 
  Address: _________________
 
  Witness 2: _________________ (signature)

  Address: _________________
 
  ACCEPTANCE AND ASSUMPTION BY AGENT:
    1.  I  have  no  reason to believe there has been a revocation of this
  appointment to control disposition of remains.
    2. I hereby accept this appointment.
    Signed this               day of           ,                .
    _______________________
    (Signature of agent)
 
    4. (a) In the  absence  of  a  written  instrument  made  pursuant  to
  subdivision  three  of this section, the designation of a person for the
  disposition of one's remains or directions for the disposition of  one's
  remains in a will executed pursuant to the laws of the state of New York
  prior  to  the  effective  date  of  this section, or otherwise executed
  pursuant to the laws of a jurisdiction outside the state  of  New  York,
  shall  be:  (i) considered reflective of the intent of the decedent with
  respect  to  the  disposition  of  the  decedent's  remains;  and   (ii)
  superseded  by  a  written  instrument subsequently executed pursuant to
  subdivision three of this section, or by any other subsequent act by the
  decedent evidencing a specific intent to supersede  the  designation  or
  direction  in  such  a  will  with  respect  to  the  disposition of the
  decedent's remains. All actions taken reasonably and in good faith based
  upon such authorizations and directions  regarding  the  disposition  of
  one's remains in such a will shall be deemed valid regardless of whether
  such a will is later probated or subsequently declared invalid.
    (b)   In  the  absence  of  a  written  instrument  made  pursuant  to
  subdivision three of this section, the designation of a person  for  the
  disposition  of one's remains or directions for the disposition of one's
  remains in a will executed pursuant to the laws of the state of New York
  on or after the effective date of this section, shall  be  considered  a
  reflection of the intent of the decedent with respect to the disposition
  of  the decedent's remains, provided that the person who represents that
  he or she is entitled to control  the  disposition  of  remains  of  the
  decedent  has  complied  with  subdivision  five  and  paragraph  (a) of
  subdivision seven of this section and  signed  a  written  statement  in
  accordance with paragraph (b) of subdivision seven of this section.
    * 4-a.   A  written  instrument  under  this  section  may  limit  the
  disposition of remains agent's authority to consent to organ  or  tissue
  donation or designate another person to do so, under article forty-three
  of  this  chapter.  Failure to state wishes or instructions shall not be
  construed to imply a wish not to donate.
    * NB Effective October 25, 2009
    5. A written instrument executed under this section shall  be  revoked
  upon  the  execution by the decedent of a subsequent written instrument,
  or by any other subsequent act by the  decedent  evidencing  a  specific
  intent  to  revoke  the  prior  written  instrument  and  directions  on
  disposition  and  agent  designations  in  a  will  made   pursuant   to
  subdivision  three of this section shall be superseded by a subsequently
  executed will or written instrument made pursuant to this section, or by
  any other subsequent act of the decedent evidencing a specific intent to
  supersede  the  direction  or  designation.  The  designation   of   the
  decedent's  spouse  or  domestic  partner  as  an  agent  in  control of
  disposition of remains shall  be  revoked  upon  the  divorce  or  legal
  separation  of  the  decedent and spouse, or termination of the domestic
  partnership, unless the decedent specified in writing otherwise.
    6. A person acting reasonably and in good faith, shall not be  subject
  to any civil liability for:

    (a)  representing  himself or herself to be the person in control of a
  decedent's disposition;
    (b)  disposing  of  a  decedent's  remains if done with the reasonable
  belief that such disposal is consistent with this section; or
    (c) identifying a decedent.
    7.  No  cemetery  organization,  business  operating  a  crematory  or
  columbarium,  funeral  director,  undertaker,  embalmer, or funeral firm
  shall be held liable for actions taken reasonably and in good  faith  to
  carry out the written directions of a decedent as stated in a will or in
  a  written  instrument  executed  pursuant  to this section. No cemetery
  organization, business operating a  crematory  or  columbarium,  funeral
  director,  undertaker, embalmer or funeral firm shall be held liable for
  actions taken reasonably and in good faith to carry out  the  directions
  of  a person who represents that he or she is entitled to control of the
  disposition of remains, provided that such action is  taken  only  after
  requesting and receiving written statement that such person:
    (a)  is  the  designated agent of the decedent designated in a will or
  written instrument executed pursuant to this section; or
    (b) that he or she has no  knowledge  that  the  decedent  executed  a
  written  instrument  pursuant  to  this  section  or  a  will containing
  directions for the disposition of his  or  her  remains  and  that  such
  person  is  the  person  having  priority  under subdivision two of this
  section.
    8. Every dispute relating to the  disposition  of  the  remains  of  a
  decedent shall be resolved by a court of competent jurisdiction pursuant
  to a special proceeding under article four of the civil practice law and
  rules.  No  person providing services relating to the disposition of the
  remains of a decedent shall be held liable for refusal to  provide  such
  services,  when control of the disposition of such remains is contested,
  until such person receives a court order or other form  of  notification
  signed  by  all  parties  or  their legal representatives to the dispute
  establishing such control.
    9. This section does not supersede, alter or abridge any provision  of
  section  four  hundred  fifty-three  of the general business law. In the
  event of a conflict or ambiguity, the provisions of section four hundred
  fifty-three of the general business law shall govern.
    10. This section does not supersede, alter or abridge any provision of
  article forty-three of this chapter including, but not limited  to,  the
  persons  authorized  to  execute  an anatomical gift pursuant to section
  forty-three hundred one of this chapter.
    11. This section does not diminish the enforceability of a contract or
  agreement in which a person controlling the disposition of  the  remains
  of a decedent agrees to pay for goods or services in connection with the
  disposition of such remains.