HB1517ham001 94TH GENERAL ASSEMBLY

Local Government Committee

Filed: 3/9/2005

09400HB1517ham001 LRB094 09123 LCB 43065 a

AMENDMENT TO HOUSE BILL 1517

AMENDMENT NO. ______. Amend House Bill 1517 by replacing everything after the enacting clause with the following:

"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) any person serving as executor or legal representative of the decedent's estate and acting according to the decedent's written instructions contained in the decedent's will;

(3) the individual who was the spouse of the decedent at the time of the decedent's death;

(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: ......................................

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

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 that satisfies the provisions of Sections 10 and 15 and that is 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. There shall be no liability for a cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment that carries 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. Nothing herein shall be intended or construed to reduce or eliminate liability for the gross negligence or willful acts of any cemetery organization, business operating a crematory or columbarium or both, funeral director or embalmer, or funeral establishment.

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.

Section 300. The Crematory Regulation Act is amended by changing Section 15 as follows:

(410 ILCS 18/15)

Sec. 15. Authorizing agent. The priority of the person or persons who have the right to serve as the authorizing agent for cremation is in the same priority as provided for in Section 5 of the Disposition of Remains Act.

(a) The following persons, in the priority listed, shall have the right to serve as an authorizing agent:

(1) The individual who was the spouse of the decedent at the time of the decedent's death, except as set forth in paragraphs (2) or (3) of this subsection.

(2) Any person acting on the instructions of a decedent who authorized his or her own cremation through the execution, on a pre-need basis, of a cremation authorization form under Section 70, unless the authorization specifically provides for a designated survivor to alter the arrangements under subsection (b) of Section 70, and the designated survivor has contacted the crematory authority and expressed the desire to alter the arrangements. The actions of such a designated survivor, however, shall not prevent another individual, who has a priority right superior to that of the designated survivor according to this Section, from authorizing the cremation of the decedent by executing a new cremation authorization form.

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

(4) The decedent's surviving adult children. If there is more than one adult child, any adult child, who confirms in writing the notification of all other adult children, may serve as the authorizing agent, unless the crematory authority receives a written objection to the cremation from another adult child.

(5) The decedent's surviving parent. If the decedent is survived by 2 parents, either parent may serve as the authorizing agent unless the crematory authority receives a written objection to the cremation from the other parent.

(6) The person in the next degree of kinship under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may serve as the authorizing agent.

(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 may serve as the authorizing agent.

(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 and the institution is charged with making arrangements for the final disposition of the decedent, a representative of the institution may serve as the authorizing agent.

(9) In the absence of any person under paragraphs (1) through (8), any person willing to assume the responsibility as authorizing agent, as specified in this Act.

(b) In the case of body parts, a representative of the institution that has arranged with the crematory authority to cremate the body part may serve as the authorizing agent.

(c) No person may serve or shall be allowed to serve as an authorizing agent when a decedent has left instructions in the manner provided under subsection (a) of this Section that they do not wish to be cremated.

(Source: P.A. 87-1187.)".