By Anthony J. Enea, Esq.*
On June 7, 2006 Governor Pataki signed new Burial Rights Legislation into Law (Chapter 76 of Laws of 2006). This new legislation amends ç4201 of the Public Health Law by permitting a decedent in writing to appoint an agent to implement his or her wishes relevant to the disposition of his or her remains. In the event a decedent does not effectuate such a written designation, the legislation establishes in descending order of priority the list of the individuals whom will have the right to control the disposition of the decedent's remains. In substance, the descending order of priority created in the newly enacted legislation is as follows:
(i) The person indicated in a written instrument executed pursuant to the provisions of the statute;
(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 81 of the Mental Hygiene Law;
(vii) A duly appointed fiduciary of the estate of the decedent. As can be seen from the above stated, a "domestic partner" which is defined within the legislation, is now granted the same order of priority in making burial decisions as a surviving spouse.
The legislation also provided a sample form to be used as a guide for the appointment of an agent to control the disposition of remains. I have included said form at the end hereof.
In conclusion, I am hopeful that this legislation will help significantly reduce the litigation and disputes which often surrounded the disposition of the remains of loved ones. Sadly, it is bad enough that we have to endure litigation and disputes while we are alive, however, our remains should be permitted to rest in peace. As attorneys, it will be most important that we encourage our clients to designate an agent in writing.
Appointment of Agent to Control Disposition of Remains (Sample Form)
(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 and address of agent)
With respect to that subject only, I hereby appoint such person as my agent with respect to the disposition of my remains.
Set forth below are any special instructions 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 pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law.
[ ] Yes, I have entered into 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)
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
2. Second Successor
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: ________________________________________________
Witness 2: ________________________________________________
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)