Bill Text: MI HB5162 | 2013-2014 | 97th Legislature | Introduced

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Bill Title: Probate; wills and estates; individuals authorized to make disposition arrangements for decedent; modify. Amends secs. 3206, 3207, 3208, 3209 & 3614 of 1998 PA 386 (MCL 700.3206 et seq.) & adds sec. 3210.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2013-12-03 - Printed Bill Filed 11/15/2013 [HB5162 Detail]

Download: Michigan-2013-HB5162-Introduced.html

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HOUSE BILL No. 5162

 

November 14, 2013, Introduced by Reps. Segal, Slavens, Hovey-Wright, Haugh, Kelly, LaVoy, Durhal, Cavanagh, Foster, Schmidt, Graves, Smiley, Haines and Price and referred to the Committee on Families, Children, and Seniors.

 

     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), sections

 

3206 and 3209 as amended by 2012 PA 63, section 3207 as amended by

 

2010 PA 325, and section 3208 as added and section 3614 as amended

 

by 2006 PA 299, and by adding section 3210.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

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

 

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), (12), 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, executed

 

voluntarily, and acknowledged by the individual before a notary

 

public. The notary public may act as a witness. Subject to the

 

acknowledgment requirement of this subsection, 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) If a funeral representative is not designated under

 

subsection (2) and if all of the following apply, subsections (2)

 

to (8) (3) to (9) 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).

 

     (13) (12) As used in this section:

 

     (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. 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(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) The designation of a funeral representative under section

 

3206(2), the designation of a person as described in section

 

3206(11) 3206(12), or 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.

 

     (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 (11), (12), 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. 3210. (1) An individual may, in a writing signed and

 

dated by the individual, direct the funeral arrangements to be

 

provided after his or her death and the handling and disposition of

 

his or her remains. The person who has the rights and powers to

 

make decisions regarding the funeral arrangements and the handling

 

and disposition of the remains under sections 3206 to 3208 shall

 

materially follow the directions to the extent allowed by law, if

 

both of the following requirements are met:

 

     (a) The directions are sufficiently clear, complete, and

 

detailed so as to not present any material ambiguity.

 

     (b) Arrangements have been made for payment of the directed

 

funeral arrangements and handling and disposition of the remains

 

through a trust, insurance, a commitment by another person, a

 

prepaid contract under the prepaid funeral and cemetery sales act,

 

1986 PA 255, MCL 328.211 to 328.235, or other effective and binding

 

means.

 

     (2) If an individual who makes a writing described in

 

subsection (1) later makes another writing that meets the

 

requirements of subsection (1) and that contains directions

 

contrary to the directions in the earlier writing, the later

 

writing prevails.

 

     (3) If the arrangements to pay described in subsection (1)(b)

 

will not completely pay for the directed funeral arrangements and

 

handling and disposition of the remains, the directions for which

 

arrangements to pay have not been made shall be carried out only to

 

the extent that the decedent's estate has sufficient assets to pay

 

or the person that otherwise has the rights and powers to make

 

decisions regarding the funeral arrangements and the handling and

 

disposition of the remains under sections 3206 to 3208 agrees to

 

pay.

 

     (4) If directions described in subsection (1) are contained in

 

the individual's will, the directions shall be followed immediately

 

on the individual's death, regardless of whether the will is valid

 

in other respects or has been offered for or admitted to probate.

 

     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.