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New York Public Health Law Section 4201 - Disposition Of Remains; Responsibilty Therefor.

Legal Research Home > New York Lawyer > Public Health > New York Public Health Law Section 4201 - Disposition Of Remains; Responsibilty Therefor.

    * § 4201. Disposition of remains; responsibility therefor. 1. As used
  in this section, the following terms shall have the following  meanings,
  unless the context otherwise requires:
    (a) "Cremation" means the incineration of human remains.
    (b)  "Disposition"  means  the  cremation,  burial  or  interment, and
  transportation of human remains.
    (c) "Domestic partner" means a person who,  with  respect  to  another
  person:
    (i)  is  formally  a  party  in  a  domestic  partnership entered into
  pursuant to the laws of the United States or  of  any  state,  local  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 at least eighteen years of  age  and  dependent  or  mutually
  interdependent  on  the  other  person  for support, indicating a mutual
  intent to be domestic partners. For purposes of  this  subdivision,  the
  person asserting a domestic partnership shall provide original documents
  as follows:
    (A)  Proof  of six months of cohabitation in the form of one of any of
  the following documents:
    (1) Auto registration;
    (2) Bank statement;
    (3) Driver's license or state-issued non-driver identification card;
    (4) Mailed insurance benefits statement;
    (5) Lease agreement listing both parties;
    (6) Mortgage agreement listing both parties; or
    (7) Telephone or utility bill; and
    (B) Proof of financial interdependence in the form of two  of  any  of
  the following:
    (1) Joint ownership of a residence;
    (2) Joint renters' or homeowners' insurance policy;
    (3) Beneficiary designation on the other's life insurance policy;
    (4) Mutually granted durable power of attorney;
    (5)  Designation  of  one  person  as the representative payee for the
  other person's benefits;
    (6) Designation of one person as the health care agent on  the  health
  care proxy for the other person or designation of a health care power of
  attorney;
    (7) Joint bank account or joint credit card; or
    (8) Lease agreement listing both parties.
    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.
    (d)  "Reasonably  available"  means  the  person may be contacted with
  diligent effort.
    2. (a) The following persons in descending  priority  shall  have  the
  right  to  control  the  disposition,  including  burial,  interment  or
  cremation, of the remains of such decedent and any  and  all  reasonable
  costs  associated  therewith  and  the  disposition  of  any part of the
  decedent's body pursuant to article forty-three of this chapter:
    (i) the person designated in a will or a written  instrument  executed
  pursuant to the provisions of this section;
    (ii) the decedent's surviving spouse;
    (ii-a) domestic partner as defined by paragraph (c) of subdivision one
  of this section;
    (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; or
    (vii) a duly appointed fiduciary of the estate of the decedent.
    (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 dispose 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
  the decedent's estate and agent are financially and reasonably  able  to
  do  so.   The person in control of disposition shall also dispose of the
  decedent in a manner appropriate to the moral and individual beliefs  of
  the  decedent provided that such morals and beliefs do not conflict with
  the directions of the decedent.  The person in  control  of  disposition
  shall  be  liable  for the reasonable cost of disposition including, but
  not limited to, burial and/or cremation and may recover such costs  from
  the  fiduciary  of  the  decedent's  estate  in  accordance with section
  eighteen hundred eleven of the surrogate's court procedure act.
    3. The written instrument referred to in paragraph (a) of  subdivision
  two of this section shall be in substantially the following form:
            APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
  I, _____________________________________________________________________
                           (Your name and address)
  being of sound  mind,  willfully  and  voluntarily  make known my desire
  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,  including
  cremation.
 
  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, to the extent that my estate and agent
  are financially and reasonably able to do so:
  ________________________________________________________________________
  ________________________________________________________________________
  ________________________________________________________________________
  ________________________________________________________________________
  ________________________________________________________________________
 
    Indicate  below  if  you  have entered into a pre-need arrangement for
  funeral merchandise or service in advance of need:
    [ ]  No, I have not entered into a pre-need arrangement.
    [ ]  Yes, I have entered into a pre-need arrangement.
 
  ________________________________________________________________________
  (Name of establishment with which you arranged merchandise and 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.
 
  RELIANCE:
    I  hereby  agree  that any cemetery organization, business operating a
  crematory  or  columbarium,  funeral  director,  embalmer,  or   funeral
  establishment  which  receives a copy of this document may act under it.
  Any modification or revocation of this document shall not  be  effective
  as  to  any  such  party  until that party receives actual notice of the
  modifications or revocation. No such party shall be  liable  because  of
  reliance on a copy of this document.
 
  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 actual knowledge or actual notice of revocation  of  this
  appointment to control disposition of remains.
    2.  I  hereby  accept  this  appointment  and  assume  the obligations
  provided by this appointment for the reasonable costs of disposition.  I
  have the right, however, to  be  reimbursed  by  the  fiduciary  of  the
  decedent's estate, provided such costs are determined reasonable.
 
    Signed this ___________ day of _____________,________.
 
                                   _______________________
                                       (your signature)
 
    4. A person may provide for the disposition of his or her remains in a
  will  or  a  written  instrument  executed pursuant to this section.   A
  written instrument shall be deemed valid under subdivision two  of  this
  section if the wording complies with the provisions of subdivision three
  of  this  section,  is  properly  completed, signed by the decedent, the
  agent  and  each  successor,  and  the  signature  of  the  decedent  is
  acknowledged.
    5.  A  written instrument executed under this section shall be revoked
  upon execution by the principal of a subsequent written  instrument  and
  directions  on  disposition  and  agent  designations in a will shall be
  superseded by a subsequent duly executed will or written instrument made
  pursuant to subdivision three of this section. The  designation  of  the
  principal's  spouse  as  an  agent  in control of disposition of remains
  shall be revoked upon the divorce or legal separation of  the  principal
  and spouse unless the principal specified in writing otherwise.
    6.  Notwithstanding  any  other  provision of the law to the contrary,
  directions in a will for the disposition of the remains of the  testator
  shall  be carried out immediately without the necessity of probate.  All
  actions taken reasonably and in good faith based upon a  will  shall  be
  deemed  valid regardless of whether the will is probated or subsequently
  declared invalid.
    7. 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 not contrary to the wishes of the decedent;
  or
    (c) identifying a decedent.
    8.  No  cemetery  organization,  business  operating  a  crematory  or
  columbarium,  funeral  director,  undertaker,   embalmer,   or   funeral
  establishment  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 establishment 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 reasonable verification 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) signs a written statement 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.
    9.  Every  dispute  relating  to  the  disposition of the remains of a
  decedent among persons of equal priority pursuant to subdivision two  of
  this  section shall be resolved by a court of competent jurisdiction. 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 to the dispute establishing such control.
    * NB Effective August 2, 2006

Last modified: August 13, 2006