MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Public Health and Human Services
By: Representatives Haney, Holland
AN ACT TO AUTHORIZE PERSONS TO EXECUTE A WRITTEN DECLARATION ASSIGNING TO A REPRESENTATIVE THE RIGHT TO DIRECT DISPOSITION OF THE PERSON'S REMAINS AFTER DEATH AND PURCHASE GOODS AND SERVICES RELATED TO THE FUNERAL; TO AMEND SECTION 73-11-58, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT WHEN THERE ARE MULTIPLE MEMBERS OF THE SAME CLASS HAVING PRIORITY AS TO THE DISPOSITION OF A DECEDENT'S BODY, A FUNERAL DIRECTOR, FUNERAL SERVICE PRACTITIONER OR FUNERAL ESTABLISHMENT SHALL ACT IN ACCORDANCE WITH THE DIRECTIVE OF A MAJORITY OF THE MEMBERS OF THE CLASS WHO CAN BE LOCATED WITH REASONABLE EFFORTS; TO AMEND SECTION 73-11-69, MISSISSIPPI CODE OF 1972, TO ALLOW A CREMATORY OR FUNERAL ESTABLISHMENT TO DISPOSE OF ANY REMAINS UNCLAIMED BY THE FAMILY AFTER ONE HUNDRED TWENTY DAYS AFTER CREMATION BY SCATTERING OR BURIAL; TO AMEND SECTION 75-63-55, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE INSURED UNDER A PRENEED CONTRACT TO MODIFY THE CONTRACT TO CHANGE THE METHOD OF DISPOSITION OF THE INSURED'S BODY FROM BURIAL IN A CASKET TO CREMATION OF THE BODY, OR FROM CREMATION TO BURIAL IN A CASKET; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) As used in this section and Sections 2 and 3 of this act:
(a) "Adult" means an individual who is eighteen (18) years of age or older.
(b) "Declarant" means an adult who has executed a written declaration described in subsection (2) of this section.
(c) "Representative" means an adult or a group of adults, collectively, to whom a declarant has assigned the right of disposition.
(d) "Right of disposition" means one or more of the rights described in subsection (2) of this section that a declarant chooses to assign to a representative in a written declaration executed under that subsection or all of the rights described in subsection (2) that are assigned to a person under Section 73-11-58.
(e) "Successor representative" means an adult or group of adults, collectively, to whom the right of disposition for a declarant has been reassigned because the declarant's representative is disqualified from exercising the right under Section 3 of this act. Each successor representative shall be considered in the order the representative is designated by the declarant.
(2) An adult who is of sound mind may execute at any time a written declaration assigning to a representative one (1) or more of the following rights:
(a) The right to direct the disposition, after death, of the declarant's body or any part of the declarant's body that becomes separated from the body before death. This right includes the right to determine the location, manner, and conditions of the disposition of the declarant's bodily remains.
(b) The right to make arrangements and purchase goods and services for the declarant's funeral. This right includes the right to determine the location, manner, and condition of the declarant's funeral.
(c) The right to make arrangements and purchase goods and services for the declarant's burial, cremation, or other manner of final disposition. This right includes the right to determine the location, manner, and condition of the declarant's burial, cremation, or other manner of final disposition.
(3) (a) Subject to paragraph (b) of this subsection, a declarant may designate a successor representative.
(b) If a representative is a group of persons and not all of the persons in the group meet at least one (1) criterion to be disqualified from serving as the representative, as described in Section 3 of this section, the persons in the group who are not disqualified shall remain the representative who has the right of disposition.
(4) The assignment or reassignment of a right of disposition to a representative and a successor representative supersedes an assignment of a right of disposition under Section 73-11-58.
(5) The assignment or reassignment of a right of disposition by a declarant under this section vests in a representative or a successor representative at the time of the declarant's death.
SECTION 2. (1) The written declaration described in Section 1 of this act shall include all of the following:
(a) The declarant's legal name and present address;
(b) A statement that the declarant, an adult being of sound mind, willfully and voluntarily appoints a representative to have the declarant's right of disposition for the declarant's body upon the declarant's death;
(c) A statement that all decisions made by the declarant's representative with respect to the right of disposition are binding;
(d) The name, last known address, and last known telephone number of the representative or, if the representative is a group of persons, the name, last known address, and last known telephone number of each person in the group;
(e) If the declarant chooses to have a successor representative, a statement that if any person or group of persons named as the declarant's representative is disqualified from serving in such position as described in Section 3 of this act, the declarant appoints a successor representative;
(f) If applicable, the name, last known address, and last known telephone number of the successor representative or, if the successor representative is a group of persons, the name, last known address, and last known telephone number of each person in the group;
(g) A space where the declarant may indicate the declarant's preferences regarding how the right of disposition should be exercised, including any religious observances the declarant wishes the person with the right of disposition to consider;
(h) A space where the declarant may indicate one or more sources of funds that may be used to pay for goods and services associated with the exercise of the right of disposition;
(i) A statement that the declarant's written declaration becomes effective on the declarant's death;
(j) A statement that the declarant revokes any written declaration that the declarant executed, in accordance with Section 1 of this act, before the execution of the present written declaration;
(k) A space where the declarant can sign and date the written declaration;
(l) A space where a notary public or two witnesses can sign and date the written declaration as described in subsection (3) of this section.
(2) Completion of a federal Record of Emergency Data form, DD Form 93, or its successor form, by a member of the military, is sufficient to constitute a written declaration under Section 1 of this act if section 13a of DD Form 93, entitled "Person Authorized to Direct Disposition," has been properly completed by the member of the military who has subsequently died while under active duty orders as described in 10 USC Section 1481.
(3) A written declaration executed by a declarant under Section 1 of this act shall be signed and dated by the declarant in the presence of one (1) of the following:
(a) A notary public.
(b) Two (2) witnesses who are adults and who are not related by blood, marriage, or adoption to the declarant.
(c) If the written declaration is a DD Form 93, Record of Emergency Data, by whomever the form requires.
SECTION 3. (1) A person shall be disqualified from serving as a representative or successor representative, or from having the right of disposition for a deceased adult under Section 73-11-58, if any of the following occurs:
(a) The person dies.
(b) A court declares or determines that the person is incompetent.
(c) The person resigns or declines to exercise the right.
(d) The person refuses to exercise the right within two (2) days after notification of the declarant's death.
(e) The person cannot be located within two (2) days after reasonable efforts.
(2) No owner, employee, or agent of a funeral home, cemetery, or crematory providing funeral, burial, or cremation services for a declarant shall serve as a representative or successor representative for the declarant unless the owner, employee, or agent is related to the declarant by blood, marriage, or adoption.
(3) Subject to subsections (3)(b) and (4) of Section 1 of this act, if a person is disqualified from serving as the declarant's representative or successor representative, or from having the right of disposition for a deceased adult under Section 73-11-58, as described in subsection (1) of this section, the right is automatically reassigned to, and vests in, the next person who has the right under the declarant's written declaration or under the order of priority in Section 73-11-58.
SECTION 4. Section 73-11-58, Mississippi Code of 1972, is amended as follows:
73-11-58. (1) If a
decedent has left no written * * * declaration meeting the
requirements of Sections 1 through 3 of this act for the cremation and/or
disposition of the decedent's body * * *, any of the following
persons, in the order of priority listed below, may authorize any lawful manner
of disposition of the decedent's body by completion of a written instrument:
(a) The person designated by the decedent as authorized to direct disposition pursuant to Public Law No. 109-163, Section 564, as listed on the decedent's United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died during military service, as provided in 10 USC Section 1481(a)(1) through (8), in any branch of the United States Armed Forces, United States Reserve Forces or National Guard.
(b) The surviving spouse.
(c) A surviving child who is at least eighteen (18) years of age.
(d) A grandchild who is at least eighteen (18) years of age.
(e) Either surviving parent.
(f) A surviving sibling who is at least eighteen (18) years of age.
* * *
( * * *g) The guardian of the person of the
decedent at the time of the decedent's death, if a guardian has been appointed.
( * * *h) A person in the class of the next
degree of kinship, in descending order, who, under state law, would inherit the
decedent's estate if the decedent died intestate and who is at least eighteen
(18) years of age.
( * * *i) A person who has exhibited special
care and concern for the decedent and is willing and able to make decisions
about the cremation and disposition.
( * * *j) In the case of individuals who have
donated their bodies to science or whose death occurred in a nursing home or
private institution and in which 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 in the absence of any of the
above.
( * * *k) In the absence of any of the above,
any person willing to assume responsibility for the cremation and disposition
of the decedent.
( * * *l) 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.
(2) No funeral establishment shall accept a dead human body from any public officer or employee or from the official of any institution, hospital or nursing home, or from a physician or any person having a professional relationship with a decedent, without having first made due inquiry as to the desires of the persons who have the legal authority to direct the disposition of the decedent's body. If any persons are found, their authority and directions shall govern the disposal of the remains of the decedent. Any funeral establishment receiving the remains in violation of this subsection shall make no charge for any service in connection with the remains before delivery of the remains as stipulated by the persons having legal authority to direct the disposition of the body. This section shall not prevent any funeral establishment from charging and being reimbursed for services rendered in connection with the removal of the remains of any deceased person in case of accidental or violent death and rendering necessary professional services required until the persons having legal authority to direct the disposition of the body have been notified.
(3) A person who does not
exercise his or her right to dispose of the decedent's body under subsection
(1) of this section within five (5) days * * * from the date
of the death * * * shall be deemed to have waived his or her
right to authorize disposition of the decedent's body or contest disposition in
accordance with this section, and the funeral director, funeral service
practitioner and/or funeral establishment may seek direction from the next
person in line who is legally recognized to make disposition decisions under
subsection (1) of this section. If, during * * * that time period, the
funeral director, funeral service practitioner and/or funeral establishment has
been provided contrary written consent from members of the same class with the
highest priority as to the disposition of the decedent's body, the licensed
funeral director or service practitioner or funeral establishment shall act in
accordance with the directive of a majority of the * * *
members of the class who can be located with reasonable effort. If that
number is equal, the funeral director or funeral service practitioner and/or
the funeral establishment shall act in accordance with the earlier consent
unless the person(s) providing the later consent is granted an order from a
court of competent jurisdiction in which the funeral establishment is located within
five (5) days from the date of the death.
(4) If no consent for the embalming, cremation or other disposition of a dead human body from any of the relatives or interested persons or institutions listed above in subsection (1) is received within ten (10) days of the decedent's death, the coroner for, or other person designated by, the county in which the funeral establishment is located is authorized to sign the consent authorizing the disposition of the decedent's remains.
(5) If none of the parties listed above in subsection (1) is financially capable of providing for the cremation, embalming or disposition of a dead human body, the coroner for, or other person designated by, the county in which the funeral establishment is located is authorized to sign the consent authorizing the disposition of the decedent's remains.
(6) The licensed funeral director, funeral service practitioner or funeral establishment shall have authority to control the disposition of the remains of a decedent and proceed to recover the costs for the disposition when: (a) none of the persons or parties described above in subsection (1)(a) through (l) assume responsibility for the disposition of the remains, and (b) the coroner or other public official designated in subsection (1)(m) fails to assume responsibility for disposition of the remains within seven (7) days after having been given written notice of the facts. Written notice may be made by personal delivery, United States mail, facsimile or transmission. The method of disposition must be in the least costly and most environmentally sound manner that complies with law, and that does not conflict with known wishes of the decedent.
(7) A funeral director, funeral service and/or funeral establishment licensee acting in accordance with this section, or attempting in good faith to act in accordance with this section, shall not be subject to criminal prosecution or civil liability for carrying out the otherwise lawful instructions of the person or persons described in this section.
(8) The liability for the reasonable cost of the final disposition of the remains of the decedent devolves upon the individual or entity authorizing the disposition and/or upon the estate of the decedent and, in cases when the county board of supervisors has the right to control the disposition of the remains under this section, upon the county in which the death occurred.
SECTION 5. Section 73-11-69, Mississippi Code of 1972, is amended as follows:
73-11-69. (1) No person or party shall conduct, maintain, manage or operate a crematory unless a license for each such crematory has been issued by the board and is conspicuously displayed in such crematory.
(2) The operator of a crematory facility shall issue a certificate of cremation to the family of each person cremated in the facility. In addition, the operator of the crematory facility shall maintain a log of all cremations performed in the facility, and this log shall match the certificates of cremation that have been issued by the facility.
(3) No operator of a crematory facility shall knowingly represent that an urn or temporary container contains the recovered cremated remains of specific decedent or of body parts removed from a specific decedent when it does not. This subsection does not prohibit the making of such a representation because of the presence in the recovered cremated remains of de minimis amounts of the cremated remains of another decedent or of body parts.
(4) The board shall inspect each licensed crematory facility during each licensure period, and at such other times as necessary, to verify that the crematory facility is in compliance with the requirements of this section. Any person who operates a crematory facility in this state without a license, or any person who otherwise violates any provision of this section, is guilty of a felony. Upon conviction for a violation of this section, in addition to any penalty that may be imposed by the court, the board may revoke the person's crematory facility license.
(5) If the retort of a crematory becomes in need of repair, then the operator of the crematory shall notify the board in writing and by telephone within forty-eight (48) hours of discovery of the need to repair, and no cremation shall be made from the time of discovery until satisfactory proof is provided to the board that the repair has been made.
(6) The board may
promulgate such rules and regulations as deemed necessary for the proper
licensure and regulation of crematory facilities in this state. Such rules and
regulations shall include, but not be limited to, the following: crematory
facility requirements, identification of deceased human beings, cremation
process, processing of remains, * * * commingling of human remains,
disposition of cremated remains, removal of human remains and proper
documentation requirements as prescribed by state agencies.
(7) Any crematory or
funeral establishment may dispose of any remains unclaimed by the family after * * * one hundred twenty (120)
days after cremation by scattering or burial * * * .
(8) The crematory retort operator must be a certified crematory operator as defined in Section 73-11-41.
(9) No crematory facility licensed by the board shall be used for the cremation of deceased animals.
(10) A crematory may be constructed on or adjacent to any cemetery, on or adjacent to any funeral establishment, or at any other location consistent with local zoning regulations.
SECTION 6. Section 75-63-55, Mississippi Code of 1972, is amended as follows:
75-63-55. (1) No person, firm, partnership, association or corporation may directly or indirectly, or through an agent, engage in the sale of preneed contracts or preneed contracts for caskets except as authorized under this article. Any person, establishment or company required to register under Section 73-11-67 that sells preneed contracts for caskets, either directly or indirectly or through an agent, shall be required to meet all of the requirements of this article that are applicable to preneed contracts. All preneed contracts sold shall be evidenced in writing on forms approved by and on file with the Secretary of State. No contract form may be used without prior approval of the Secretary of State. No amendment or modification can be made to any preneed contract without prior approval of the Secretary of State. Any modification of the preneed contract to change the method of disposition of the insured's body shall be in accordance with subsection (10) of this section. The use of any oral preneed contract, or any written contract, in a form not approved by the Secretary of State, shall be a violation of the chapter and subject to the penalties provided in Section 75-63-69. The contract shall clearly indicate the names and addresses of the buyer, contract insured, contract provider and seller. The Secretary of State may by rule or regulation prescribe specific contract content or a standard contract form required for use by all contract providers describing the rights and responsibilities of the contract provider and the contract owner. However, no standard form contract or contract language shall be inconsistent in any way with the provisions of this article. The Secretary of State is further authorized to implement a systematic method to identify and track preneed contract sales for the purpose of reconciling sales reported to the Secretary of State on the annual report required by Section 75-63-67 with trust fund activity statements and the provider's business records.
(2) The contract shall clearly indicate all merchandise covered by the contract, a description of the merchandise quality, and the total cost of all merchandise covered by the contract. The contract shall list all services covered by the contract and the total cost for all services covered by the contract. The contract shall list all cash advance items covered by the contract and the total cost for all cash advance items covered by the contract.
(3) All preneed contracts sold shall be funded by trust or insurance as defined in this article or evidenced by a warehouse receipt, as contemplated in Uniform Commercial Code-Documents of Title, Section 75-7-101 et seq. All merchandise placed on a warehouse receipt or placed in storage shall be reported to the Secretary of State in the preneed report as required by Section 75-63-67.
(4) If the preneed contract is funded by a policy of insurance, as defined by Section 83-5-5, a copy of the insurance policy shall be furnished to the insured within fifteen (15) days of issue. Such insurance shall be subject to the insurance laws of the state.
The insured shall be furnished the following:
(a) A list of the merchandise, including a description of the merchandise quality, and services which are applied or contracted for in the preneed contract and all relevant information concerning the price of the funeral services, including an indication that the purchase price is either guaranteed at the time of purchase or to be determined at the time of need;
(b) All relevant information concerning what occurs and whether any entitlements or obligations arise if there is a difference between the proceeds of the life insurance policy and the amount actually needed to fund the preneed contract; and
(c) Any penalties or restrictions, including, but not limited to, geographic restrictions or the inability of the provider to perform, on the delivery of merchandise, services or the preneed guarantees.
If the preneed contract is not funded by a policy of insurance, as defined by Section 83-5-5, a copy of the preneed contract shall be furnished to the contract insured at the time of purchase.
(5) If the preneed contract is funded by trust, the contract shall indicate the name, address and telephone number of the trustee; the trust institution; the amount to be paid; the frequency of payment; and the length of time payments will be paid into the trust. The contract insured must initial on the contract the percentage required to be trusted and the designation of the trust officer. In addition, the contract should clearly indicate any exclusions or limitations of the preneed contract including, but not limited to, any additional payments that may be owed if the contract insured dies before the agreed upon payment period is completed.
(6) The preneed contract shall indicate whether it is a standard contract or an inflation proof contract. The contract shall clearly indicate which merchandise and services are guaranteed as to price.
(7) The preneed contract shall contain the address and phone number of the Secretary of State with instructions that consumer complaints may be filed with the Secretary of State.
(8) If the preneed contract is paid in multiple payments, the contract should indicate the amount, frequency and duration of the payments and the amount of any interest charged. The contract shall also include the impact on the contract if payments are not made.
(9) The use of any oral preneed contract, or any written contract, in a form not approved by the Secretary of State, shall be a violation of this article and subject to the penalties provided in Section 75-63-69.
(10) (a) The contract insured may modify the preneed contract to change the method of disposition of the insured's body from burial in a casket to cremation of the body, or from cremation to burial in a casket. The Secretary of State shall provide a form that must be used by the insured for making such a modification to the contract. The insured shall provide information in the form that includes, at minimum, a revised description of the merchandise and services to be covered and the cost of the merchandise and services under the contract as modified, and shall address each item of information required by subsection (2) of this section to be in the contract. The Secretary of State may require such additional information as deemed necessary to be included in the form. The modification of the contract shall not be effective until it has been approved by the Secretary of State, but the Secretary shall not withhold approval if the modification meets the requirements of this subsection.
(b) If the contract modification results in an overpayment, then the overpayment shall be refunded to the personal representative of the deceased who is designated in the decedent's written declaration, or if none, then the overpayment shall be refunded to the signer of the contract. If there is an additional balance owed for modified merchandise or services, then the insured may enter into a new preneed contract to cover the requested merchandise or services at the time of modification, or the additional balance may be paid to the funeral service provider at the time of death where the additional merchandise or services may be based on pricing in place at that time.
SECTION 7. This act shall take effect and be in force from and after July 1, 2019.