NY Pub Health L § 4201 (2021)
2021 New York Laws PBH - Public Health Article 42 - Cadavers Title 1 - Disposition 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 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.  (e) No person who: (1) at the time of the decedent's  death,  was  the subject  of  an  order of protection protecting the decedent; or (2) has been arrested or charged with any crime set forth in article one hundred twenty-five of the penal  law  as  a  result  of  any  action  allegedly causally  related  to  the death of the decedent shall have the right to control the disposition of the remains of  the  decedent.  However,  the application  of  this  paragraph  in  a particular case may be waived or modified in the interest of justice by  order  of  (i)  the  court  that issued  the  order of protection or in which the criminal action against the person is pending, or  a  superior  court  in  which  an  action  or proceeding  under  the  domestic  relations  law or the family court act between the person and the decedent was  pending  at  the  time  of  the decedent's  death,  or  (ii)  if  proceeding  in  that court would cause inappropriate delay, a court in a special proceeding.   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.   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.