HB1517 94TH GENERAL ASSEMBLY

LRB094 09123 LCB 39353 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB1517

Introduced 02/10/05, by Rep. Dan Brady

SYNOPSIS AS INTRODUCED:

New Act
410 ILCS 18/15 rep.

Creates the Disposition of Remains Act. Lists, in order of priority, those persons who have the right to control the disposition, including cremation, of the decedent's remains and who are liable for the costs of disposition, unless the decedent has left written directions for the disposition of his or her remains as provided in the listed Section of the Act or in the Crematory Regulation Act. Provides a form for the appointment of an agent to control the disposition of remains. Provides that a person may provide written directions for the disposition, including cremation, of the person's remains in a will, a prepaid funeral, burial, or cremation contract, or in a written instrument signed by the person and notarized. Amends the Crematory Regulation Act to repeal the Section concerning the priority list for authorizing agents for the cremation of remains.

A BILL FOR

AN ACT concerning remains.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Disposition of Remains Act.

Section 5. Right to control disposition; priority. Unless a decedent has left directions in writing for the disposition of the decedent's remains as provided in Section 65 of the Crematory Regulation Act or in subsection (a) of Section 40 of this Act, the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent's remains and are liable for the reasonable costs of the disposition:

(1) the person designated in a written instrument that satisfies the provisions of Sections 10 and 15 of this Act;

(2) the decedent's surviving spouse;

(3) any person serving as executor or legal representative of the decedent's estate and acting according to the decedent's written instructions;

(4) the sole surviving competent adult child of the decedent, or if there is more than one surviving competent adult child of the decedent, the majority of the surviving competent adult children; however, less than one-half of the surviving adult children shall be vested with the rights and duties of this Section if they have used reasonable efforts to notify all other surviving competent adult children of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving competent adult children;

(5) the surviving competent parents of the decedent; if one of the surviving competent parents is absent, the remaining competent parent shall be vested with the rights and duties of this Act after reasonable efforts have been unsuccessful in locating the absent surviving competent parent;

(6) the surviving competent adult person or persons respectively in the next degrees of kindred or, if there is more than one surviving competent adult person of the same degree of kindred, the majority of those persons; less than the majority of surviving competent adult persons of the same degree of kindred shall be vested with the rights and duties of this Act if those persons have used reasonable efforts to notify all other surviving competent adult persons of the same degree of kindred of their instructions and are not aware of any opposition to those instructions on the part of one-half or more of all surviving competent adult persons of the same degree of kindred;

(7) in the case of indigents or any other individuals whose final disposition is the responsibility of the State or any of its instrumentalities, a public administrator, medical examiner, coroner, State appointed guardian, or any other public official charged with arranging the final disposition of the decedent;

(8) in the case of individuals who have donated their bodies to science, or whose death occurred in a nursing home or other private institution, who have executed cremation authorization forms under Section 65 of the Crematory Regulation Act and the institution is charged with making arrangements for the final disposition of the decedent, a representative of the institution; or

(9) any other person or organization that is willing to assume legal and financial responsibility.

As used in Section, "adult" means any individual who has reached his or her eighteenth birthday.

Section 10. Form. The written instrument authorizing the disposition of remains shall be in substantially the following form:

"APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS

I, ................................, 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) and, with respect to that subject only, I hereby appoint such person as my agent (attorney-in-fact). All decisions made by my agent with respect to the disposition of my remains, including cremation, shall be binding.

SPECIAL DIRECTIONS:

Set forth below are any special directions limiting the power granted to my agent:

..............................

..............................

..............................

AGENT:

Name: ......................................

Telephone Number: ..........................

Acceptance of Appointment: .................

Signature of Agent: ........................

Date of Signature: .........................

SUCCESSORS:

If my agent dies, becomes legally disabled, resigns, or refuses to act, I hereby appoint the following persons (each to act alone and successively, in the order named) to serve as my agent (attorney-in-fact) to control the disposition of my remains as authorized by this document:

1. First Successor

Name: ......................................

Address: ...................................

Telephone Number: .......................................

Signature Indicating Acceptance of Appointment: .........

Date of Signature: ....................

2. Second Successor

Name: ...................................................

Address: ................................................

Telephone Number: .......................................

Signature Indicating Acceptance of Appointment

................................................

Date of Signature: .............

DURATION:

This appointment becomes effective upon my death.

PRIOR APPOINTMENTS 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 or both, funeral director or embalmer, or funeral establishment who receives a copy of this document may act under it. Any modification or revocation of this document is not effective as to any such party until that party receives actual notice of the modification or revocation. No such party shall be liable because of reliance on a copy of this document.

ASSUMPTION:

THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS APPOINTMENT, AGREES TO AND ASSUMES THE OBLIGATIONS PROVIDED HEREIN.

Signed this ...... day of .............., ...........

STATE OF ..................

COUNTY OF .................

BEFORE ME, the undersigned, a Notary Public, on this day personally appeared ...................., proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this ..... day

of ................, 2........

Printed Name: .............................

Notary Public, State of ...................

My Commission Expires:

....................".

Section 15. Requirements for written instrument. A written instrument is legally sufficient under Section 5 if the wording of the instrument complies substantially with Section 10, the instrument is properly completed, the instrument is signed by the decedent, the agent, and each successor agent, and the signature of the decedent is notarized. The written instrument may be modified or revoked only by a subsequent written instrument that complies with this Section.

Section 20. Duties of authorized agent.

(a) A person listed in Section 5 has the right, duty, and liability provided by that Section only if there is no person in a priority listed before the person.

(b) If any person who would otherwise have the right to control disposition pursuant to Section 5 has been charged with first or second degree murder or voluntary manslaughter in connection with the decedent's death and those charges are known to the funeral director or cemetery authority, that person's right to control is relinquished and passed on to the next listed person or group of persons in accordance with Section 5.

Section 25. Body parts. In the case of body parts, a representative of the institution that has arranged with a funeral home, cemetery, or crematory authority to cremate or make other appropriate disposition of the body parts may serve as the authorizing agent.

Section 30. Prohibition of cremation; written instructions. No person shall be allowed to authorize cremation when a decedent has left written instructions that he or she does not wish to be cremated.

Section 35. Misrepresentation; liability. A person who represents that he or she knows the identity of a decedent and, in order to procure the disposition, including cremation, of the decedent's remains, signs an order or statement, other than a death certificate, warrants the identity of the decedent and is liable for all damages that result, directly or indirectly, from that warrant.

Section 40. Directions by decedent.

(a) A person may provide written directions for the disposition, including cremation, of the person's remains in a will, a prepaid funeral, burial or cremation contract, or in a written instrument signed by the person and notarized. The directions may be modified or revoked only by a subsequent writing signed by the person and notarized. The person otherwise entitled to control the disposition of a decedent's remains under this Act shall faithfully carry out the directions of the decedent to the extent that the decedent's estate or the person controlling the disposition are financially able to do so.

(b) If the directions are in a will, they shall be carried out immediately without the necessity of probate. If the will is not probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been acted on in good faith.

Section 45. Liability. A cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment shall not be liable for carrying out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent's remains.

Section 50. Disputes. Any dispute among any of the persons listed in Section 5 concerning their right to control the disposition, including cremation, of a decedent's remains shall be resolved by a court of competent jurisdiction. A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent's remains, or to inter or otherwise dispose of the decedent's remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.

(410 ILCS 18/15 rep.)

Section 300. The Crematory Regulation Act is amended by repealing Section 15.