SB 1071

SENATE BILL NO. 1071
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending section 3206 (MCL 700.3206), as amended by
2022 PA 157.
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 (12),
a funeral representative designated under subsection (2), a person with
priority under subsections (3) to (5) or a person acting under subsection (6),
(7), (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 retrieve from the funeral establishment and possess cremated
remains of the decedent immediately after cremation. The handling, disposition,
or disinterment of a body must be under the supervision of a person licensed to
practice mortuary science in this state.
(2) Subject to
section 1202, and except as otherwise provided in this subsection and subject
to the priority in subsection (3), an individual who
is 18 years of age or older and who is
of sound mind at the time a funeral representative designation is made may
designate in writing another individual who is 18 years of age or older and who
is of sound mind to have the rights and powers under subsection (1). All of the
following apply to a funeral representative designation under this subsection:
(a) For purposes of
this section and sections 3206a and 3206b, an individual who is named in a
funeral representative designation to have the rights and powers described in
subsection (1) is known as a funeral representative and an individual who makes
a funeral representative designation is known as a declarant.
(b) A funeral
representative designation under this subsection must be in writing, dated, and
signed voluntarily by the declarant or signed by a notary public on the
declarant's behalf under section 33 of the Michigan law on notarial acts, 2003
PA 238, MCL 55.293. A funeral representative designation may be included in the
declarant's will, patient advocate designation, or other writing. If a funeral
representative designation is contained in an individual's will, the will is
not required to be admitted to probate for the funeral representative
designation to be valid. A funeral representative designation must be 1 or both
of the following:
(i) Signed in the presence of and signed by
2 witnesses. A witness under this section may must not be the funeral representative or an
individual described in subdivision (c)(ii) to (iv). A witness shall not sign the funeral
representative designation unless the declarant appears to be of sound mind and
under no duress, fraud, or undue influence.
(ii) Acknowledged by the declarant before a
notary public, who endorses on the funeral representative designation a
certificate of the acknowledgment and the true date of taking the
acknowledgment.
(c) The following
individuals may shall
not act as a funeral representative for the declarant unless the
individual is the surviving spouse or is a relative of the declarant:
(i) An officer, partner, member,
shareholder, owner, representative, or employee of a funeral establishment that
will provide services to the declarant.
(ii) A health professional, or an employee of
or volunteer at a health facility or veterans facility, who provided medical
treatment or nursing care to the declarant during the final illness or
immediately before the declarant's death, or a partner, member, shareholder,
owner, or representative of the health facility where medical treatment or
nursing care was provided.
(iii) An officer, partner, member,
shareholder, owner, representative, or employee of a cemetery at which the
declarant's body will be interred, entombed, or inurned.
(iv) An officer, partner, member,
shareholder, owner, representative, or employee of a crematory that will
provide the declarant's cremation services.
(3) The following
have the rights and powers under subsection (1) in the following order of
priority:
(a) If the decedent
was a service member at the time of the decedent's death, a person designated
to direct the disposition of the service member's remains according to a
statute of the United States or regulation, policy, directive, or instruction
of the Department of Defense.
(b) A funeral
representative designated under subsection (2).
(c) The surviving
spouse.
(d) The individual
or individuals 18 years of age or older in the following order of priority:
(i) The decedent's children.
(ii) The decedent's grandchildren.
(iii) The decedent's parents.
(iv) The decedent's grandparents.
(v) The decedent's siblings.
(vi) A descendant of the decedent's parents
who first notifies the funeral establishment in possession of the decedent's
body of the descendant's decision to exercise his
or her the descendant's rights under
subsection (1).
(vii) A descendant of the decedent's
grandparents who first notifies the funeral establishment in possession of the
decedent's body of the descendant's decision to exercise his or her the
descendant's rights under subsection (1).
(4) If the
individual or individuals with the highest priority as determined under
subsection (3) cannot be located after a reasonable effort to contact and
inform them of the decedent's death within 72 hours after the pronouncement of
the decedent's death under the determination of death act, 1992 PA 90, MCL
333.1031 to 333.1034, affirmatively decline to exercise their rights or powers
under subsection (1), or fail to exercise their rights or powers under
subsection (1) within 72 hours after the pronouncement of the decedent's death
under the determination of death act, 1992 PA 90, MCL 333.1031 to 333.1034, the
rights and powers under subsection (1) may be exercised by the individual or
individuals in the same order of priority under subsection (3). If the
individual or each of the individuals in an order of priority as determined
under this subsection similarly affirmatively declines or fails to exercise his or her the
individual's rights or powers within 72 hours after the pronouncement of
the decedent's death under the determination of death act, 1992 PA 90, MCL
333.1031 to 333.1034, or cannot be located within 72 hours after the
pronouncement of the decedent's death under the determination of death act,
1992 PA 90, MCL 333.1031 to 333.1034, the rights or powers under subsection (1)
pass to an individual or individuals in the next order of priority under
subsection (3) who notify the funeral establishment in possession of the
decedent's body of their decision to exercise their rights or powers under subsection
(1). For purposes of this subsection only, "exercise their rights or
powers under subsection (1)" means providing the person that holds a
license under article 18 of the occupational code, 1980 PA 299, MCL 339.1801 to
339.1812, 339.1811,
in possession of the decedent's body with authorization to bury or
cremate the decedent's body.
(5) If 2 or more
individuals share the rights and powers described in subsection (1) as
determined under subsection (3) or (4), the rights and powers must be exercised
as decided by a majority of the individuals who can be located after reasonable
efforts. If a majority cannot agree, any of the individuals may file a petition
under section 3207.
(6) If no
individual described in subsections (3) and (4) exists, exercises the rights or
powers under subsection (1), or can be located after a sufficient attempt as
described in subsection (10), and if subsection (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 the personal
representative's appointment.
(7) If no
individual described in subsections (3) and (4) exists, exercises the rights or
powers under subsection (1), or can be located after a sufficient attempt as
described in subsection (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) If no
individual described in subsections (3) and (4) exists, exercises the rights or
powers under subsection (1), or can be located after a sufficient attempt as
described in subsection (10), if the decedent died intestate, and if subsection
(7) does not apply, a special fiduciary appointed under section 1309 or a
special personal representative appointed under section 3614(c) may exercise
the rights and powers under subsection (1).
(9) If there is no
person under subsections (3) to (8) to exercise the rights and powers under
subsection (1), or if there is a person under subsections (3) to (8) to
exercise the rights and powers under subsection (1) and the person fails to
exercise the rights and powers under subsection (1) within 14 days after the
decedent's death, 1 of the following, as applicable, shall exercise the rights
and powers under subsection (1):
(a) Unless
subdivision (b) applies, the medical examiner for the county where the decedent
was domiciled at the time of his or her the decedent's death.
(b) If the decedent
was incarcerated in a state correctional facility at the time of his or her the decedent's
death, the director of the department of corrections or the designee of
the director.
(10) An attempt to
locate a person described in subsection (3) or (4) is sufficient if a
reasonable attempt is made in good faith by any of the following to contact the
person at his or her the person's last known address, telephone number, or
email address:
(a) A family
member, personal representative, or nominated personal representative of the
decedent.
(b) A health
facility or veteran's facility that provided medical treatment to the decedent
during the final illness or immediately before the decedent's death.
(11) 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) An individual
who has been criminally charged with the intentional killing of the decedent
shall not exercise a right under subsection (1) while the charges are pending.
(13) Except as
otherwise provided in this subsection, a person who
that has the rights and powers under
subsection (1) and who that exercises the right over the disposition of the
decedent's body must ensure payment for the costs of the disposition 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. To the extent payment is not ensured under
this subsection, the person described in this subsection is liable for the
costs of the disposition. This subsection does not apply to a person who that exercises
the rights and powers under subsection (1) as provided in subsection (8) or
(9).
(14) As used in
this section:
(a) "Armed
forces" means the Army, Air Force, Navy, Marine Corps, Coast Guard, or
other military force designated by Congress as part of the Armed Forces of the
United States.
(b) "Health
facility" means that term as defined in section 5653 of the public health
code, 1978 PA 368, MCL 333.5653.
(c) "Health
professional" means that term as defined in section 5883 of the public
health code, 1978 PA 368, MCL 333.5883.
(d) "Medical
treatment" means that term as defined in section 5653 of the public health
code, 1978 PA 368, MCL 333.5653.
(e) "Michigan
National Guard" means that term as defined in section 105 of the Michigan
military act, 1967 PA 150, MCL 32.505.
(f) "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.
(g) "Service
member" means a member of the armed forces, a reserve branch of the armed
forces, or the Michigan National Guard.
Enacting section 1. This amendatory act does not take
effect unless Senate Bill No. 1060 of the 103rd Legislature is enacted into
law.