HB-5850, As Passed House, May 27, 2010

SUBSTITUTE FOR

HOUSE BILL NO. 5850

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 the decedent was a service member who had 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 and

if the designated person is the surviving spouse, an adult blood

relative, or an adoptive relative of the decedent, or a person

standing in loco parentis if the surviving spouse, an adult blood

relative, or an adoptive relative of the decedent cannot be found,

and is able and willing to exercise the rights and powers

enumerated in subsection (1), subsections (2) to (8) do not apply

and the designated person has the rights and the powers under

subsection (1).

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

(a) "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.

(b) "Service member" means an individual described in 10 USC

1481(a)(1) to (8).

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