Bill Text: MI HB4180 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Probate; wills and estates; funeral and burial arrangements; allow designation of a funeral representative. Amends secs. 3206, 3207, 3208, 3209 & 3614 (MCL 700.3206 et seq.).

Spectrum: Partisan Bill (Republican 2-0)

Status: (Introduced - Dead) 2009-02-10 - Printed Bill Filed 02/06/2009 [HB4180 Detail]

Download: Michigan-2009-HB4180-Introduced.html

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HOUSE BILL No. 4180

 

February 5, 2009, Introduced by Reps. Moss and Walsh and referred to the Committee on Judiciary.

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 3206, 3207, 3208, 3209, and 3614 (MCL

 

700.3206, 700.3207, 700.3208, 700.3209, and 700.3614), section 3206

 

as amended by 2008 PA 41 and sections 3207, 3208, and 3209 as added

 

and section 3614 as amended 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, a funeral

 

representative appointed under subsection (2), a person with

 

priority under subsections (2) to (4) (3) to (5), or a person

 

acting under subsection (5), (6), (7), or (8), or (9) 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) An individual may designate a person to act as the

 

individual's funeral representative. The designation shall be in

 

writing, signed, witnessed in the same manner as provided for a

 

patient advocate designation in section 5506(4), dated, and

 

executed voluntarily. A designation under this subsection may be

 

included in a patient advocate designation. A person designated as

 

a funeral representative has the rights and powers under subsection

 

(1).

 

     (3) (2) The If a funeral representative is not designated

 

under subsection (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).

 

     (4) (3) If a funeral representative is not designated under

 

subsection (2) and if the surviving spouse or the individual or

 

individuals with the highest priority as determined under

 

subsection (2) (3) 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.

 

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

 

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

 

(3) or (4), 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.

 

     (6) (5) If a funeral representative is not designated under

 

subsection (2) and if no individual described in subsections (2)

 

and (3) and (4) exists, exercises the rights or powers under

 

subsection (1), or can be located after a sufficient attempt as

 

described in subsection (9) (10), and if subsection (6) (7) 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.

 

     (7) (6) If a funeral representative is not designated under

 

subsection (2) and if no individual described in subsections (2)

 

and (3) and (4) exists, exercises the rights or powers under

 

subsection (1), or can be located after a sufficient attempt as

 

described in subsection (9) (10), 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.

 

     (8) (7) If a funeral representative is not designated under

 

subsection (2) and if no individual described in subsections (2)

 

and (3) and (4) exists, exercises the rights or powers under

 

subsection (1), or can be located after a sufficient attempt as

 

described in subsection (9) (10), if the decedent died intestate,

 

and if subsection (6) (7) does not apply, a special personal

 

representative appointed under section 3614(c) may exercise the

 

rights and powers under subsection (1).

 

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

 

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.

 

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

 

(2) or (3) or (4) 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.

 

     (11) (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.

 

     (12) (11) As used in this section, "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.

 

     Sec. 3207. (1) If there is a disagreement as described in

 

section 3206(4) 3206(5) or if a funeral representative is not

 

designated under section 3206(2) and 1 or more of the individuals

 

described in section 3206(2) or (3) 3206(3) or (4) cannot be

 

located, 1 or more of the following may petition the court to

 

determine who has the authority to exercise the rights and powers

 

under section 3206(1):

 

     (a) An individual with the rights and powers under section

 

3206(1).

 

     (b) A funeral establishment that has custody of the decedent's

 

body.

 

     (2) Venue for a petition filed under subsection (1) is in the

 

county in which the decedent was domiciled at the time of death.

 

     (3) On receipt of a petition under this section, the court

 

shall set a date for a hearing on the petition. The hearing date

 

shall be as soon as possible, but not later than 7 business days

 

after the date the petition is filed. Notice of the petition and

 

the hearing shall be served not less than 2 days before the date of

 

the hearing on every individual who has highest priority as

 

determined under section 3206(2) and (3) 3206(3) and (4), unless

 

the court orders that service on every such individual is not

 

required. Unless an individual cannot be located after a reasonable

 

good-faith effort has been made to contact the individual, service

 

shall be made on the individual personally or in a manner

 

reasonably designed to give the individual notice. Notice of the

 

hearing shall include notice of the individual's right to appear at

 

the hearing. An individual served with notice of the hearing may

 

waive his or her rights. If written waivers from all persons

 

entitled to notice are filed, the court may immediately hear the

 

petition. The court may waive or modify the notice and hearing

 

requirements of this subsection if the decedent's body must be

 

disposed of promptly to accommodate the religious beliefs of the

 

decedent or his or her next of kin.

 

     (4) If a funeral establishment is the petitioner under this

 

section, the funeral establishment's actual costs and reasonable

 

attorney fees in bringing the proceeding shall be included in the

 

reasonable funeral and burial expenses under section 3805(b)

 

3805(1)(b) or the court may assess such costs and fees against 1 or

 

more parties or intervenors.

 

     (5) In deciding a petition brought under this section, the

 

court shall consider all of the following, in addition to other

 

relevant factors:

 

     (a) The reasonableness and practicality of the funeral

 

arrangements or the handling or disposition of the body proposed by

 

the person bringing the action in comparison with the funeral

 

arrangements or the handling or disposition of the body proposed by

 

1 or more individuals with the rights and powers under section

 

3206(1).

 

     (b) The nature of the personal relationship to the deceased of

 

the person bringing the action compared to other individuals with

 

the rights and powers under section 3206(1).

 

     (c) Whether the person bringing the action is ready, willing,

 

and able to pay the costs of the funeral arrangements or the

 

handling or disposition of the body.

 

     Sec. 3208. (1) An If a funeral representative is not

 

designated under section 3206(2), an individual other than a person

 

with priority under subsections (2) to (4) section 3206(3) to (5)

 

or acting under subsection (5), (6), (7), or (8), section 3206(6),

 

(7), (8), or (9) may file an action in the circuit court to

 

challenge the presumption to be determined as the individual who

 

has the authority to exercise the rights and powers under section

 

3206(1).

 

     (2) Venue for an action filed under this section is in the

 

county in which the decedent was domiciled at the time of death.

 

     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) A funeral establishment that provides services at the

 

direction of a person whom the funeral establishment reasonably

 

believes to be a funeral representative designated under section

 

3206(2) is not liable for following the directions.

 

     (3) (2) The order of priority determined under section 3206(2)

 

and (3) 3206(3) and (4) 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.

 

     (4) (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) (9), 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.

 

     Sec. 3614. A special personal representative may be appointed

 

in any of the following circumstances:

 

     (a) Informally by the register on the application of an

 

interested person if necessary to protect the estate of a decedent

 

before the appointment of a general personal representative or if a

 

prior appointment is terminated as provided in section 3609.

 

     (b) By the court on its own motion or in a formal proceeding

 

by court order on the petition of an interested person if in either

 

case, after notice and hearing, the court finds that the

 

appointment is necessary to preserve the estate or to secure its

 

proper administration, including its administration in

 

circumstances in which a general personal representative cannot or

 

should not act. If it appears to the court that an emergency

 

exists, the court may order the appointment without notice.

 

     (c) By the court on its own motion or on petition by an

 

interested person to supervise the disposition of the body of a

 

decedent if section 3206(7) 3206(8) applies. The duties of a

 

special personal representative appointed under this subdivision

 

shall be specified in the order of appointment and may include

 

making arrangements with a funeral home, securing a burial plot if

 

needed, obtaining veteran's or pauper's funding where appropriate,

 

and determining the disposition of the body by burial or cremation.

 

The court may waive the bond requirement under section 3603(1)(a).

 

The court may appoint the county public administrator if the county

 

public administrator is willing to serve. If the court determines

 

that it will not be necessary to open an estate, the court may

 

appoint a special fiduciary under section 1309 instead of a special

 

personal representative to perform duties under this section.