Introduced by Representatives Brooks of Montpelier and Larocque of Barnet
Subject: Health; disposition of remains; funeral goods and services
Statement of purpose: This bill proposes to determine which individuals have the right to direct the disposition of remains and order funeral goods and services, and it establishes a procedure in probate court when there is a dispute.
AN ACT RELATING TO THE RIGHTS OF FAMILY MEMBERS TO DETERMINE THE DISPOSITION OF BODILY REMAINS AND TO FUNERAL GOODS AND SERVICES
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 18 V.S.A. chapter 107, subchapter 3 is added to read:
Subchapter 3. Rights of Family Members
§ 5226. Definitions
For purposes of this subchapter:
(1) “Estranged” means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that demonstrates an absence of affection, trust, and regard for the decedent.
(2) “Near relative” means the individuals listed in subdivisions 5227(a)(2)-(5) of this title.
(3) “Right to disposition” means to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services.
§ 5227. RIGHT TO DISPOSITION
(a) In the following order of priority, a competent adult shall have the right to determine the disposition of the remains of a decedent, including the location, manner and conditions of disposition and arrangements for funeral goods and services:
(1) an agent appointed to direct the manner of disposition of decedent’s remains in an advance directive pursuant to chapter 111 of this title;
(2) a surviving spouse, civil union partner, or reciprocal beneficiary as defined in section 1302 of Title 15 of the decedent;
(3) a sole surviving child of the decedent or a majority of the surviving children except as provided for in subdivision (b)(1) of this section;
(4) a sole surviving parent of the decedent or either parent as provided for in subdivision (b)(2) of this section;
(5) a sole surviving sibling of the decedent or a majority of the surviving siblings except as provided for in subdivision (b)(3) of this section;
(6) any other family member, in descending order of kinship under the laws of descent and distribution, except that if there is more than one family member of the same degree of relation, any family member of that degree may exercise the right of disposition;
(7) a guardian of the decedent at the time of death; or
(8) any other individual willing to assume the responsibilities to act and arrange the final disposition of the decedent’s remains, including the representative of the decedent’s estate or the funeral director with custody of the body, after attesting in writing that a good faith effort has been made to contact the individuals under subdivisions (1) through (7) of this section.
(b)(1) If there is more than one surviving child of the decedent and the majority of the children are unable to be contacted, less than a majority of the surviving children may make the decisions if they have made reasonable efforts to contact all other surviving children, notified them of the proposed instructions and do not know of any opposition to those instructions.
(2) If one parent is unable to be contacted, the remaining parent may make the decision if that parent has made reasonable efforts to contact or locate the other parent.
(3) If there is more than one surviving sibling of the decedent and the majority of the siblings are unable to be contacted, less than a majority of the surviving siblings may make the decisions if they have made reasonable efforts to contact all other surviving siblings, notified them of the proposed instructions and do not know of any opposition to those instructions.
§ 5228. Forfeiture
An individual recognized under section 5226 of this title to have a right of disposition of a decedent’s remains shall forfeit that right in the following circumstances:
(1) the individual is under prosecution for first or second degree murder or voluntary manslaughter in connection with the decedent’s death, if the prosecution is known to the funeral director, except that if the prosecution is not pursued or the individual is acquitted of the alleged crime, the individual shall regain the right;
(2) the individual does not exercise the right of disposition within three days of notification of the death or within five days of decedent’s time of death, whichever is earlier; or
(3) the probate court pursuant to section 5231 of this title determines that the individual entitled to the right of disposition and the decedent were estranged at the time of death.
§ 5229. COST OF DISPOSITION
The cost for the disposition of remains and funeral goods or services shall be borne by the decedent’s estate or any individual who agrees to pay the costs. Nothing in this subchapter shall be construed to require a funeral director or crematory operator to provide goods or services for which there is no payment.
§ 5230. RIGHTS OF FUNERAL DIRECTOR OR CREMATORY
A funeral director may determine the final disposition of remains and may file a civil action to recover reasonable costs and fees for the final disposition when:
(1)(A) the funeral director or crematory operator has actual knowledge that there is no surviving family member, guardian nor agent;
(B) the funeral director or crematory operator has made reasonable efforts to locate and contact any known family member, guardian or agent; and
(2) the appropriate local authority fails to assume responsibility for disposition of the remains within 36 hours of written notice, which may be delivered by hand, United States mail, facsimile transmission, or telegraph.
§ 5231. Civil action
(a) Any individual who is a near relative of the decedent or the custodian of the decedent’s remains may file an action in probate court requesting the court to appoint an individual to make decisions regarding the disposition of the decedents remain or to resolve a dispute regarding the appropriate disposition of remains, including any instructions regarding funeral goods and services.
(b) The court shall consider the following factors:
(1) the cost and practicality of the proposed arrangements and disposition;
(2) the relationship between the decedent and any individual claiming the right of disposition, including whether the individual and the decedent were estranged;
(3) the wishes of any individual willing to pay the cost of the proposed arrangements and disposition;
(4) the convenience and wishes of other family and friends;
(5) the decedent’s expressed instructions or wishes;
(6) the inclusiveness of the proposed arrangements.
(c) Except as provided for under subdivision (b)(X) of this section, an individual who has paid or agreed to pay for all or part of the funeral arrangements or final disposition does not have greater priority to the right to disposition.
(d)(1) A funeral director or crematory operator may refuse to accept bodily remains, to inter or otherwise dispose of bodily remains, or to complete the arrangements for the final disposition until such time as the court issues an order or the parties submit a final stipulation regarding the disposition of remains.
(2) If the funeral director retains the remains for final disposition while action is pending, the funeral director may embalm, refrigerate or shelter the remains while awaiting the final order of the court. The cost of embalming, refrigeration or sheltering shall be the responsibility of the parties and the court shall include an order regarding payment of these costs.
§ 5232. COSTS AND FEES
If a funeral director or crematory operator files an action under this section, the funeral director may ask the court to include an order against the parties for legal fees and costs.
§ 5233. Immunity
A funeral director or crematory operator shall not be liable or subject to disciplinary action for carrying out the disposition of the remains for relying in good faith on a funeral service contract or authorization or for following the instructions of an individual whom the funeral director reasonably believes holds the right of disposition. The funeral director or crematory operator does not have a duty to contact or to independently investigate the next-of-kin. A funeral director shall not be held criminally or civilly liable for failing to file an action under section 5231 of this chapter.
The Vermont General Assembly
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