MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Public Health and Human Services
By: Representative Holland
AN ACT RELATING TO THE RIGHT TO CONTROL THE DISPOSITION OF THE REMAINS OF DECEASED PERSONS; TO PROVIDE THAT THE DISPOSITION DIRECTIONS AND FUNERAL PREARRANGEMENTS CONTAINED IN A PRENEED CONTRACT MAY BE REVISED ONLY UNDER CERTAIN CONDITIONS; TO ESTABLISH THE RIGHTS OF CERTAIN PERSONS, IN PRESCRIBED ORDER, TO CONTROL THE DISPOSITION OF THE REMAINS OF A DECEASED PERSON; TO SPECIFY CERTAIN CONDITIONS UNDER WHICH A PERSON FORFEITS HIS LEGAL RIGHT TO DIRECT THE DISPOSITION OF ANOTHER'S REMAINS; TO AUTHORIZE THE CHANCERY COURT IN THE COUNTY IN WHICH THE DECEASED PERSON LAST RESIDED TO DETERMINE THE RIGHT OF DISPOSITION IN CERTAIN CASES WHERE THOSE SHARING THE RIGHT OF DISPOSITION CANNOT AGREE; TO PRESCRIBE THE RIGHTS AND RESPONSIBILITIES OF FUNERAL HOMES WHEN DISPUTES RELATING TO THE RIGHT OF DISPOSITION ARISE; TO AMEND SECTIONS 73-11-58 AND 75-63-55, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) A person who is eighteen (18) years of age or older and of sound mind, by entering into a preneed contract, as defined in Section 75-63-53(l), may direct the location, manner and conditions of the disposition of the person's remains and the arrangements for funeral goods and services to be provided upon the person's death. The disposition directions and funeral prearrangements that are contained in a preneed contract are not subject to cancellation or substantial revision unless: the cancellation or substantial revision is ordered by a person appointed in the preneed contract by the decedent as the person authorized to cancel or revise the terms of the preneed contract; or any resources set aside to fund the preneed contract are insufficient under the terms of the preneed contract to carry out the disposition directions and funeral prearrangements contained in the contract.
(2) Except as otherwise provided under subsection (3) of this section, the right to control the disposition of the remains of a deceased person (including the location, manner and conditions of disposition) and arrangements for funeral goods and services to be provided vests in the following, in the order named, if the person is eighteen (18) years of age or older and of sound mind:
(a) (i) A person designated by the decedent as the person with the right to control the disposition in an affidavit executed in accordance with subparagraph (ii) of this paragraph.
(ii) A person who is eighteen (18) years of age or older and of sound mind wishing to authorize another person to control the disposition of his or her remains may execute an affidavit before a notary public in substantially the following form:
"State of Mississippi
County of _______
I, _______________, do hereby designate ________________ as the person having the right to control the disposition of my remains upon my death. I (check one) __ have __ have not attached specific directions concerning the disposition of my remains with which the designee must substantially comply if those directions are lawful and there are sufficient resources in my estate to carry out the directions.
Subscribed and sworn to before me this ___ day of the month of _____ of the year _____.
___________________(signature of affiant)
___________________(signature of notary public)";
(b) The surviving spouse of the decedent;
(c) The sole surviving child of the decedent or, if there is more than one (1) child of the decedent, the majority of the surviving children; however, less than a majority of the surviving children are vested with the rights under this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one-half (1/2) of all surviving children;
(d) The surviving parent or parents of the decedent. If one (1) of the surviving parents is absent, the remaining parent is vested with the rights and duties under this section after reasonable efforts have been unsuccessful in locating the absent surviving parent;
(e) The surviving brother or sister of the decedent or, if there is more than one (1) sibling of the decedent, the majority of the surviving siblings; however, less than a majority of the surviving siblings are vested with the rights under this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one-half (1/2) of all surviving siblings;
(f) The surviving grandparent of the decedent or, if there is more than one (1) surviving grandparent, the majority of the grandparents; however, less than the majority of the surviving grandparents are vested with the rights under this section if they have used reasonable efforts to notify all other surviving grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one-half (1/2) of all surviving grandparents;
(g) The guardian of the person of the decedent at the time of the decedent's death if a guardian had been appointed;
(h) The personal representative of the estate of the decedent;
(i) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one (1) person of the same degree, any person of that degree may exercise the right of disposition;
(j) If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator or employee responsible for arranging the final disposition of decedent's remains; or
(k) In the absence of any person under paragraphs (a) through (j) of this subsection, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the funeral director with custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals under paragraphs (a) through (j) of this subsection.
(3) A person legally entitled to the right of disposition forfeits that right, and the right is passed on to the next qualifying person listed in subsection (2) of this section, when the following circumstances occur:
(a) The person is charged with murder or voluntary manslaughter in connection with the decedent's death and the charges are known to the funeral director; however, if the charges against the person are dismissed or if the person is acquitted of the charges, the right of disposition is returned to the person;
(b) The person does not exercise his or her right of disposition within two (2) days of notification of the death of decedent or within three (3) days of decedent's death, whichever is earlier;
(c) The person and the decedent are spouses and a petition to dissolve the marriage was pending at the time of decedent's death; or
(d) The chancery court, pursuant to subsection (4) of this section, determines that the person entitled to the right of disposition and the decedent were estranged at the time of death. For purposes of this section, the term "estranged" means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of due affection, trust and regard for the decedent.
(4) Notwithstanding subsections (2) and (3) of this section, the chancery court for the county where the decedent resided may award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition, and the court may make decisions regarding the decedent's remains if those sharing the right of disposition cannot agree. The following provisions shall apply to the court's determination under this subsection:
(a) If the persons holding the right of disposition are two (2) or more persons with the same relationship to the decedent and they cannot, by majority vote, make a decision regarding the disposition of the decedent's remains, any of those persons or a funeral home with custody of the remains may file a petition asking the chancery court to make a determination in the matter.
(b) In making a determination under this subsection, the chancery court shall consider the following:
(i) The reasonableness and practicality of the proposed funeral arrangements and disposition;
(ii) The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;
(iii) The desires of the person or persons who are ready, able and willing to pay the cost of the funeral arrangements and disposition;
(iv) The convenience and needs of other families and friends wishing to pay respects;
(v) The desires of the decedent; and
(vi) The degree to which the funeral arrangements would allow maximum participation by all wishing to pay respect.
(c) Whenever there is a dispute regarding the right of disposition, a funeral home is not liable for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent or complete the arrangements for the final disposition of the remains until the funeral home receives a court order or other written agreement signed by the parties in the disagreement that provides for the final disposition of the remains. If the funeral home retains the remains for final disposition while the parties are in disagreement, the funeral home may embalm or refrigerate and shelter the body, or both, in order to preserve it while awaiting the final decision of the chancery court and may add the cost of embalming or refrigeration and sheltering to the final disposition costs. If a funeral home brings an action under this paragraph, the funeral home may add the legal fees and court costs associated with a petition under this paragraph to the cost of final disposition. This paragraph may not be construed to require or impose a duty upon a funeral home to bring an action under this paragraph. A funeral home and its employees may not be held criminally or civilly liable for choosing not to bring an action under this paragraph.
(d) Except to the degree it may be considered by the chancery court under paragraph (b)(iii) of this subsection, the fact that a person has paid or agreed to pay for all or part of the funeral arrangements and final disposition does not give that person a greater claim to the right of disposition than the person otherwise would have under this section. The personal representative of the estate of the decedent does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the person otherwise would have under this section.
(5) Any person signing a funeral service agreement, cremation authorization form or any other authorization for disposition is deemed to warrant the truthfulness of any facts set forth in the document, including the identity of the decedent whose remains are to be buried, cremated or otherwise disposed of and the signing party's authority to order the disposition. A funeral home may rely on the funeral service agreement or authorization and may carry out the instructions of the person or persons the funeral home reasonably believes holds the right of disposition. The funeral home has no responsibility to contact or to independently investigate the existence of any next of kin or relative of the decedent. When there are two (2) or more persons in a class who are equal in priority and the funeral home has no knowledge of any objection by a member of the class, the funeral home may rely on and act according to the instructions of the first person in the class to make funeral and disposition arrangements if no other person in the class provides written notice of his or her objections to the funeral home.
(6) A funeral home or funeral director who relies in good faith upon the instructions of an individual claiming the right of disposition is not subject to criminal or civil liability or disciplinary action for carrying out the disposition of the remains in accordance with the instructions.
SECTION 2. Section 73-11-58, Mississippi Code of 1972, is amended as follows:
73-11-58. (1) If a decedent has left no written authorization for the cremation and/or disposition of the decedent's body as permitted by law, the authority to determine the type, method, place, cremation and/or other disposition of the decedent's body is vested in those persons, in the prescribed order, who are granted the right to control the disposition of a deceased person's remains under Section 1 of House Bill No. ____, 2011 Regular Session. However, if the decedent died during military service, as provided in 10 USCS Section 1481(a)(1) through (8), in any branch of the United States Armed Forces, United States Reserve Forces or National Guard, 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, has priority over all persons named in Section 1 of House Bill No. ____, 2011 Regular Session.
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(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 named in Section 1 of House Bill No. ____, 2011 Regular Session, are known to the funeral home, 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.
SECTION 3. 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. Except for a cancellation or revision to the disposition directions and funeral prearrangements by a person authorized in the preneed contract to make cancellations or revisions, as authorized under Section 1 of House Bill No. ___, 2011 Regular Session, no amendment or modification can be made to any preneed contract without prior approval of the Secretary of State. 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.
SECTION 4. This act shall take effect and be in force from and after July 1, 2011.