Bill Text: MI HB4505 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Probate; wills and estates; decisions regarding funeral, burial, or cremation; allow individual to designate a person to make decisions and require that the individual's instructions be followed. Amends secs. 3206, 3207, 3208, 3209 & 3614 of 1998 PA 386 (MCL 700.3206 et seq.) & adds sec. 3210.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-03-05 - Printed Bill Filed 03/05/2009 [HB4505 Detail]

Download: Michigan-2009-HB4505-Introduced.html

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HOUSE BILL No. 4505

 

March 4, 2009, Introduced by Rep. Byrnes 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, 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,

 

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 person

 

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 exercise the

 

rights and powers under subsection (1). 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.

 

     (3) (2) The If there is no person 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 there is no person 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 there is no person 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 there is no person 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 there is no person 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 there is no person 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 there is no person 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 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 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. If an individual includes instructions in his or

 

her will or in a writing signed and witnessed in the same manner as

 

provided for a patient advocate designation in section 5506(4)for

 

funeral services or the handling or disposition of his or her body

 

after death, the person who has the right and power to make

 

decisions about funeral arrangements and the handling and

 

disposition of the body under sections 3206 to 3208 shall follow

 

the instructions to the extent possible.

 

     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.