HB-4639, As Passed House, June 22, 2011

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4639

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 3206 and 3209 (MCL 700.3206 and 700.3209),

 

section 3206 as amended by 2008 PA 41 and section 3209 as added by

 

2006 PA 299.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 3206. (1) Subject to 1953 PA 181, MCL 52.201 to 52.216,

 

and to part 28 and article 10 of the public health code, 1978 PA

 

368, MCL 333.2801 to 333.2899 and 333.10101 to 333.11101, and

 

subsection (11), a person with priority under subsections (2) to

 

(4) or acting under subsection (5), (6), (7), or (8) is presumed to

 

have the right and power to make decisions about funeral

 

arrangements and the handling, disposition, or disinterment of a

 

decedent's body, including, but not limited to, decisions about


 

cremation, and the right to possess cremated remains of the

 

decedent. The handling, disposition, or disinterment of a body

 

shall be under the supervision of a person licensed to practice

 

mortuary science in this state.

 

     (2) The surviving spouse or, if there is no surviving spouse,

 

the individual or individuals 18 years of age or older, in the

 

highest order of priority under section 2103, and related to the

 

decedent in the closest degree of consanguinity, have the rights

 

and powers under subsection (1).

 

     (3) If the surviving spouse or the individual or individuals

 

with the highest priority as determined under subsection (2) do not

 

exercise their rights or powers under subsection (1) or cannot be

 

located after a good-faith effort to contact them, the rights and

 

powers under subsection (1) may be exercised by the individual or

 

individuals in the same order of priority under section 2103 who

 

are related to the decedent in the next closest degree of

 

consanguinity. If the individual or each of the individuals in an

 

order of priority as determined under this subsection similarly

 

does not exercise his or her rights or powers or cannot be located,

 

the rights or powers under subsection (1) pass to the next order of

 

priority, with the order of priority being determined by first

 

taking the individuals in the highest order of priority under

 

section 2103 and then taking the individuals related to the

 

decedent in the closest or, as applicable, next closest degree of

 

consanguinity in that order of priority.

 

     (4) If 2 or more individuals share the rights and powers

 

described in subsection (1) as determined under subsection (2) or


 

(3), the rights and powers shall be exercised as decided by a

 

majority of the individuals. If a majority cannot agree, any of the

 

individuals may file a petition under section 3207.

 

     (5) If no individual described in subsections (2) and (3)

 

exists, exercises the rights or powers under subsection (1), or can

 

be located after a sufficient attempt as described in subsection

 

(9), and if subsection (6) does not apply, then the personal

 

representative or nominated personal representative may exercise

 

the rights and powers under subsection (1), either before or after

 

his or her appointment.

 

     (6) If no individual described in subsections (2) and (3)

 

exists, exercises the rights or powers under subsection (1), or can

 

be located after a sufficient attempt as described in subsection

 

(9), and if the decedent was under a guardianship at the time of

 

death, the guardian may exercise the rights and powers under

 

subsection (1) and may make a claim for the reimbursement of burial

 

expenses as provided in section 5216 or 5315, as applicable.

 

     (7) If no individual described in subsections (2) and (3)

 

exists, exercises the rights or powers under subsection (1), or can

 

be located after a sufficient attempt as described in subsection

 

(9), if the decedent died intestate, and if subsection (6) does not

 

apply, a special personal representative appointed under section

 

3614(c) may exercise the rights and powers under subsection (1).

 

     (8) If there is no person under subsections (2) to (7) to

 

exercise the rights and powers under subsection (1), 1 of the

 

following, as applicable, shall exercise the rights and powers

 

under subsection (1):


 

     (a) Unless subdivision (b) applies, the county public

 

administrator, if willing, or the medical examiner for the county

 

where the decedent was domiciled at the time of his or her death.

 

     (b) If the decedent was incarcerated in a state correctional

 

facility at the time of his or her death, the director of the

 

department of corrections or the designee of the director.

 

     (9) An attempt to locate a person described in subsection (2)

 

or (3) is sufficient if a reasonable attempt is made in good faith

 

by a family member, personal representative, or nominated personal

 

representative of the decedent to contact the person at his or her

 

last known address, telephone number, or electronic mail address.

 

     (10) This section does not void or otherwise affect an

 

anatomical gift made under part 101 of the public health code, 1978

 

PA 368, MCL 333.10101 to 333.10123.

 

     (11) If all of the following apply, subsections (2) to (8) do

 

not apply and the designated person has the rights and the powers

 

under subsection (1):

 

     (a) The decedent was a service member who designated a person

 

to direct disposition of the service member's remains according to

 

a statute of the United States or a regulation, policy, directive,

 

or instruction of the department of defense.

 

     (b) The designated person is the surviving spouse, an adult

 

blood relative, or an adoptive relative of the decedent or, if the

 

surviving spouse, an adult blood relative, or an adoptive relative

 

of the decedent cannot be found, a person standing in loco

 

parentis.

 

     (c) The designated person is able and willing to exercise the


 

rights and powers enumerated in subsection (1).

 

     (12) (11) As used in this section: , "nominated

 

     (a) "Armed forces" means that term as defined in section 2 of

 

the veteran right to employment services act, 1994 PA 39, MCL

 

35.1092.

 

     (b) "Michigan national guard" means that term as defined in

 

section 105 of the Michigan military act, 1967 PA 150, MCL 32.505.

 

     (c) "Nominated personal representative" means a person

 

nominated to act as personal representative in a will that the

 

nominated person reasonably believes to be the valid will of the

 

decedent.

 

     (d) "Service member" means a member of the armed forces, a

 

reserve branch of the armed forces, or the Michigan national guard.

 

     Sec. 3209. (1) A funeral establishment is not required to file

 

a petition under section 3207 and is not civilly liable for not

 

doing so.

 

     (2) The designation of a person as described in section

 

3206(11) or the order of priority determined under section 3206(2)

 

and (3) may be relied upon by a funeral establishment. A funeral

 

establishment is not a guarantor that a person exercising the

 

rights and powers under section 3206(1) has the legal authority to

 

do so. A funeral establishment does not have the responsibility to

 

contact or independently investigate the existence of relatives of

 

the deceased, but may rely on information provided by family

 

members of the deceased.

 

     (3) A funeral establishment, holder of a license to practice

 

mortuary science issued by this state, cemetery, crematory, or an


 

officer or employee of a funeral establishment, holder of a license

 

to practice mortuary science issued by this state, cemetery, or

 

crematory may rely on the terms of sections 3206 and 3207 and this

 

section and the instructions of a person described in section

 

3206(2) to (8) or (11), or of an individual determined in an action

 

under section 3208 to be the party to exercise the rights and

 

powers under section 3206(1), regarding funeral arrangements and

 

the handling, disposition, or disinterment of a body and is not

 

civilly liable to any person for the reliance if the reliance was

 

in good faith.