Amendment ASA1-AB868

LRBs0662/1

MDK:mkd&skg:ch

1995 - 1996 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, To 1995 ASSEMBLY BILL 868

March 25, 1996 - Offered by Representatives Albers, Plombon, Prosser and Jensen, by request of ERROR: ORA-06107: NETTCP: ORACLE network server not found.

AB868-ASA1,1,8 An Act to renumber and amend 445.12 (3), 445.125 (1) (a) to (d), 445.125 (1) (e), 445.125 (2) and (3), 445.125 (4) and 632.41 (2); to amend 49.19 (4) (bm), 49.47 (4) (b) 3., 49.47 (4) (i) 2. a., 214.04 (22), 440.92 (4) (a) (intro.), 440.92 (6) (c), 445.12 (7), 445.13 (1), 445.13 (2), 445.15 (1) and 701.12 (1); and to create 445.12 (3) (b), 445.12 (3g), 445.12 (3r), 445.125 (1) (title), 445.125 (3m), 445.13 (1e), 445.15 (1m) and 632.41 (2) (b) of the statutes; relating to: the sale of burial agreements funded with life insurance policies, granting rule-making authority and providing a penalty.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB868-ASA1, s. 1 Section 1. 49.19 (4) (bm) of the statutes is amended to read:

AB868-ASA1,2,7 49.19 (4) (bm) The person applying for aid shall document, to the department's satisfaction, actual income as claimed in the application, and shall reveal all assets. Except as specified in par. (br), aid is available only if the combined equity value of assets does not exceed $1,000. One automobile with an equity value not exceeding $1,500, one home, as specified in par. (e), and, for each person, one burial plot and one burial agreement under s. 445.125 (1) (b) (a) 2. and (c) 3. with a value of not more than $1,500 may not be included when determining the combined equity value of assets. Any amount received under section 32 of the internal revenue code, as defined in s. 71.01 (6), and any payment made by an employer under section 3507 of the internal revenue code, as defined in s. 71.01 (6), may not be included in determining the combined equity value of assets in the month of receipt and the following month.

AB868-ASA1, s. 2 Section 2. 49.47 (4) (b) 3. of the statutes is amended to read:

AB868-ASA1,2,13 49.47 (4) (b) 3. For a person who is eligible under par. (a) 3. or 4., funds set aside to meet the burial and related expenses of the person and his or her spouse in an amount not to exceed $1,500 each, minus the sum of the cash value of any life insurance excluded under subd. 2w. and the amount in any irrevocable burial trust under s. 445.125 (1) (a).

AB868-ASA1, s. 3 Section 3. 49.47 (4) (i) 2. a. of the statutes is amended to read:

AB868-ASA1,2,21 49.47 (4) (i) 2. a. For the person or his or her spouse, the sum of the following, less the cash value of any life insurance excluded under par. (b) 2w. that was obtained after July 1, 1993, exceeds $8,000: the value of any burial space or agreement described in par. (b) 2r. that was acquired after July 1, 1993; the amount in any irrevocable burial trust under s. 445.125 (1) (a) that was acquired after July 1, 1993; and any funds set aside after July 1, 1993, to meet the burial and related expenses under par. (b) 3.

AB868-ASA1, s. 4 Section 4. 214.04 (22) of the statutes, as affected by 1995 Wisconsin Act 103, is amended to read:

AB868-ASA1,3,2 214.04 (22) To maintain real estate broker trust accounts under s. 452.13, attorney trust accounts under s. 757.293, collection agency trust accounts under s. 218.04 (9g), burial trust accounts under s. 445.125 (1) and care funds and preneed trust funds under s. 157.19.

AB868-ASA1, s. 5 Section 5. 440.92 (4) (a) (intro.) of the statutes is amended to read:

AB868-ASA1,3,8 440.92 (4) (a) (intro.) Any person who sells or solicits the sale of cemetery merchandise under a preneed sales contract is not required to be registered under sub. (1) and the requirements of sub. (3) (a) and (b) do not apply to the sale if all payments received under the preneed sales contract are trusted as required under s. 445.125 (1) (a) 1. or if all of the following conditions are met:

AB868-ASA1, s. 6 Section 6. 440.92 (6) (c) of the statutes is amended to read:

AB868-ASA1,3,13 440.92 (6) (c) A preneed seller who is the trustee of any trust fund under s. 445.125 (1) shall include in the report required under par. (a) an accounting of amounts deposited in, amounts withdrawn from, income accruing to and the balance at the close of the reporting period of such trust funds.

AB868-ASA1, s. 7 Section 7. 445.12 (3) of the statutes is renumbered 445.12 (3) (intro.) and amended to read:

AB868-ASA1,3,22 445.12 (3) (intro.) No licensed funeral director or operator of a funeral establishment may, directly or indirectly, solicit a funeral service or the right to prepare a dead human body for burial or transportation either before or after death has occurred, or pay or cause to be paid any sum of money or other valuable consideration for the securing of the right to do such work; but nothing herein shall interfere with the right of any person not a licensed funeral director to solicit. This subsection does not prohibit any of the following:

AB868-ASA1,3,25 (a) The solicitation of memberships or sell the sale of stock or memberships in any association organized under ch. 185 by any person who is not a licensed funeral director.

AB868-ASA1, s. 8 Section 8. 445.12 (3) (b) of the statutes is created to read:

AB868-ASA1,4,3 445.12 (3) (b) The solicitation or sale of burial agreements to the extent permitted under sub. (3g) and s. 445.125 (3m).

AB868-ASA1, s. 9 Section 9. 445.12 (3g) of the statutes is created to read:

AB868-ASA1,4,8 445.12 (3g) (a) Except as provided in pars. (b) and (c), a licensed funeral director, agent of a licensed funeral director, operator of a funeral establishment or agent of an operator of a funeral establishment may not solicit the sale of a burial agreement under s. 445.125 (3m) by doing any of the following:

AB868-ASA1,4,10 1. Knowingly contacting a prospective purchaser of a burial agreement in a hospital, health care facility or similar facility or institution.

AB868-ASA1,4,12 2. Knowingly contacting a relative of a person whose death is imminent or appears to be imminent.

AB868-ASA1,4,15 3. Contacting a prospective purchaser of a burial agreement by door-to-door solicitation or in a manner that violates rules promulgated by the examining board under s. 445.125 (3m) (j) 2.

AB868-ASA1,4,19 (b) A licensed funeral director, agent of a licensed funeral director, operator of a funeral establishment or agent of an operator of a funeral establishment may solicit the sale of a burial agreement under s. 445.125 (3m) by contacting any person if any of the following applies:

AB868-ASA1,4,20 1. The prospective purchaser requests the contact.

AB868-ASA1,4,24 2. The contact is part of a mass-mailing, television, radio, print or other type of advertising campaign that is not directed solely toward persons in a hospital, health care facility or similar facility or institution or toward the relatives of a person whose death is imminent or appears to be imminent.

AB868-ASA1,5,5 (c) Paragraph (a) 3. does not prohibit a licensed funeral director, agent of a licensed funeral director, operator of a funeral establishment or agent of an operator of a funeral establishment from using mass-marketing practices or in-person contacts or communications permitted under this section or by a rule promulgated by the examining board under s. 445.125 (3m) (j) 2.

AB868-ASA1, s. 10 Section 10. 445.12 (3r) of the statutes is created to read:

AB868-ASA1,5,8 445.12 (3r) No licensed funeral director or operator of a funeral establishment may do any of the following:

AB868-ASA1,5,12 (a) Require a person who enters into a burial agreement under s. 445.125 (3m) to purchase a life insurance policy used to fund the agreement from an insurance intermediary licensed under ch. 628 who is specified by the funeral director or operator of the funeral establishment.

AB868-ASA1,5,16 (b) Authorize an insurance intermediary licensed under ch. 628 to sell or solicit the sale of a burial agreement under s. 445.125 (3m) (b) 2. a. unless the insurance intermediary meets the training requirements established by the examining board by rule under s. 445.125 (3m) (j) 1. a.

AB868-ASA1, s. 11 Section 11. 445.12 (7) of the statutes is amended to read:

AB868-ASA1,5,23 445.12 (7) No licensed funeral director or operator of a funeral establishment may sell or cause to be sold any shares of stocks, certificates of membership or any other form of certificate which provides for any burial benefit or any rebate at the time of death to the holders thereof. This subsection does not prohibit the sale of burial agreements to the extent permitted under, and that are in conformity with, s. 445.125 (3m).

AB868-ASA1, s. 12 Section 12. 445.125 (1) (title) of the statutes is created to read:

AB868-ASA1,5,25 445.125 (1) (title) Burial agreements funded by trusts.

AB868-ASA1, s. 13 Section 13. 445.125 (1) (a) to (d) of the statutes are renumbered 445.125 (1) (a) 1. to 4., and 445.125 (1) (a) 1., 3. and 4., as renumbered, are amended to read:

AB868-ASA1,6,16 445.125 (1) (a) 1. Whenever Except as provided in sub. (3m), whenever a person, referred to in this section subsection as the depositor, makes an agreement with another person selling or offering for sale funeral or burial merchandise or services, referred to in this section subsection as the beneficiary, for the purchase of a casket, outer burial container not preplaced into the burial excavation of a grave, combination casket-outer burial container or other receptacle not described in par. (e) sub. (4) (b) for the burial or other disposition of human remains or for the furnishing of funeral or burial services, either of which is intended to be provided for the final disposition of the body of a person, referred to in this section subsection as the potential decedent, wherein the use of such personal property or the furnishing of such services is not immediately required, all payments made under the agreement shall be and remain trust funds, including interest and dividends if any, until occurrence of the death of the potential decedent, unless the funds are sooner released upon demand to the depositor, after written notice to the beneficiary.

AB868-ASA1,6,18 3. Any interest or dividends accruing to a trust fund under par. (b) subd. 2. may be made irrevocable.

AB868-ASA1,6,21 4. Any depositor who made an irrevocable agreement under par. (b) subd. 2. may designate a different beneficiary at any time prior to death, after written notice to the current beneficiary.

AB868-ASA1, s. 14 Section 14. 445.125 (1) (e) of the statutes is renumbered 445.125 (4) (b) and amended to read:

AB868-ASA1,7,3 445.125 (4) (b) This section does not apply to the The sale and or delivery of cemetery lots, graves, outer burial containers preplaced into the burial excavation of a grave, cremation urns, mausoleum spaces, as defined in s. 157.061 (10), or grave or cemetery lot markers or monuments before their use is required or the sale of undeveloped spaces, as defined in s. 157.061 (17).

AB868-ASA1, s. 15 Section 15. 445.125 (2) and (3) of the statutes are renumbered 445.125 (1) (b) and (c) and amended to read:

AB868-ASA1,8,2 445.125 (1) (b) All such trust funds under par. (a) shall be deposited with a bank or trust company within the state whose deposits are insured by the federal deposit insurance corporation, deposited in a savings and loan association or savings bank within the state whose deposits are insured by the federal deposit insurance corporation or invested in a credit union within the state whose savings are insured by the national board, as defined in s. 186.01 (3m), or by the Wisconsin credit union savings insurance corporation and shall be held in a separate account in the name of the depositor, in trust for the beneficiary until the trust fund is released under either of the conditions provided in sub. (1) par. (a) 1. In the event of the death of the depositor before the death of the potential decedent, title to such funds shall vest in the potential decedent, and the funds shall be used for the personal property and services to be furnished under the contract for the funeral of the potential decedent. The depositor shall be furnished with a copy of the receipts, certificates or other appropriate documentary evidence showing that the funds have been deposited or invested in accordance with this section subsection. The depositor or the beneficiary shall furnish the bank, trust company, savings bank, savings and loan association or credit union with a copy of the contract. Upon receipt of a certified copy of the certificate of death of the potential decedent, together with the written statement of the beneficiary that the agreement was complied with, the bank, trust company, savings bank, savings and loan association or credit union shall release such trust funds to the beneficiary.

AB868-ASA1,8,7 (c) The payment pursuant to this section subsection of such fund and any interest or dividends which may have accumulated shall relieve the bank, trust company, savings bank, savings and loan association or credit union of any further liability for such funds, interest or dividends. A bank need not comply with ch. 223 to accept and disburse deposits under this section subsection.

AB868-ASA1, s. 16 Section 16. 445.125 (3m) of the statutes is created to read:

AB868-ASA1,8,10 445.125 (3m) Burial agreements funded with proceeds of life insurance policies. (a) In this subsection:

AB868-ASA1,8,12 1. "Agent" means an authorized representative of a funeral director or operator of a funeral establishment.

AB868-ASA1,8,16 2. "Burial agreement" means a written agreement between an operator of a funeral establishment or funeral director and a person in which the operator of the funeral establishment or funeral director agrees to provide to a person, after that person is deceased, funeral merchandise or funeral services.

AB868-ASA1,8,24 3. "Cash advance item" means personal property or a service that is obtained by a funeral director or operator of a funeral establishment from a 3rd party and that is paid for by the funeral director or operator of the funeral establishment on behalf of, and subject to reimbursement from, a person purchasing funeral merchandise or funeral services from the funeral director or operator of the funeral establishment. "Cash advance item" includes cemetery or crematory services, pallbearers, public transportation, clergy honoraria, flowers, musicians or vocalists, nurses, obituary notices, gratuities and death certificates.

AB868-ASA1,9,9 4. "Funeral merchandise or funeral services" means personal property or services typically sold or provided in connection with the final disposition of human remains, including caskets or other primary containers not preplaced into the burial excavation of a grave, rental, temporary or disposable caskets or containers, outer burial containers not preplaced into the burial excavation of a grave, transportation containers, funeral clothing and accessories, embalming services and funeral directing services. "Funeral merchandise or funeral services" does not include a cash advance item or opening and closing costs that are associated with the burial of a deceased person.

AB868-ASA1,9,13 (b) 1. A licensed funeral director, an operator of a funeral establishment, an agent of a licensed funeral director or, subject to par. (c), an agent of an operator of a funeral establishment may sell or solicit the sale of a burial agreement that is funded with the proceeds of a life insurance policy if all of the following apply:

AB868-ASA1,9,15 a. The burial agreement meets the requirements specified in pars. (d) to (f) and in the rules promulgated by the examining board under par. (j) 1. b.

AB868-ASA1,9,17 b. The licensed funeral director, operator of the funeral establishment or agent is licensed as an insurance intermediary under ch. 628.

AB868-ASA1,9,22 2. a. A licensed funeral director or operator of a funeral establishment may authorize an agent who is an insurance intermediary licensed under ch. 628, and who meets the training requirements established by the examining board under par. (j) 1. a., to sell or solicit the sale of a burial agreement that is funded with the proceeds of a life insurance policy and that meets the requirements specified in pars. (d) to (f).

AB868-ASA1,9,25 b. A licensed funeral director or operator of a funeral establishment shall report to the examining board the identity of any agent authorized by the licensed funeral director or operator of the funeral establishment under subd. 2. a. and provide evidence satisfactory to the examining board that such agent meets the training requirements established by the examining board by rule under par. (j) 1. a. The examining board shall promulgate rules establishing requirements and procedures for making reports and providing the evidence required under this subd. 2. b.

AB868-ASA1,10,16 c. A licensed funeral director or operator of a funeral establishment is responsible for and bound by any act of an agent, authorized by the licensed funeral director or operator of the funeral establishment under subd. 2. a., that is within the scope of the agent's apparent authority, while a contract under par. (c) 1. between the agent and the licensed funeral director or operator of the funeral establishment remains in force, and after that time until the licensed funeral director or operator of the funeral establishment has made reasonable efforts to recover from the agent any forms for burial agreements provided to the agent by the licensed funeral director or operator of the funeral establishment and other indicia of agency. Reasonable efforts shall include a formal demand in writing for return of the indicia, and notice to the examining board if the agent does not comply with the demand promptly.

AB868-ASA1,10,22 (c) 1. No agent of an operator of a funeral establishment may solicit the sale of or sell a burial agreement funded with the proceeds of a life insurance policy unless he or she has a contract with the operator of the funeral establishment that authorizes him or her to act as the agent of the operator of the funeral establishment and that satisfies the requirements established by the examining board by rule under par. (j) 1. c.

AB868-ASA1,10,25 2. If an agent of an operator of a funeral establishment solicits the sale of or sells a burial agreement funded with the proceeds of a life insurance policy, the agent shall do all of the following at the time of solicitation:

AB868-ASA1,11,2 a. Disclose to the prospective purchaser of the burial agreement the identity of the funeral establishment of which he or she is an agent.

AB868-ASA1,11,6 b. Furnish to the applicant a copy of the booklet prepared and distributed by the examining board under par. (j) 3. that describes the differences between funding a burial agreement with the proceeds of a life insurance policy under this subsection and entering into a burial agreement funded by a trust under sub. (1).

AB868-ASA1,11,10 (d) A burial agreement that is funded with the proceeds of a life insurance policy shall specify in the agreement the funeral establishment that will be used to provide the funeral services or funeral merchandise to be provided under the agreement.

AB868-ASA1,11,14 (e) 1. A burial agreement that is funded with the proceeds from a life insurance policy shall include a provision setting forth the nature and extent of any price guarantee for the funeral merchandise or funeral services that are to be provided under the burial agreement.

AB868-ASA1,11,19 2. If an agent solicits and sells a burial agreement that is funded with the proceeds of a life insurance policy, the licensed funeral director who owns the funeral establishment or is an agent of the operator of the funeral establishment that will provide funeral merchandise or funeral services under the burial agreement shall ratify the burial agreement in writing and with his or her signature.

AB868-ASA1,11,25 (f) The price of any funeral merchandise or funeral services provided under a burial agreement funded with the proceeds of a life insurance policy may not exceed the price for the merchandise or services that, at the time that the merchandise is provided or the services are performed, is set forth in the funeral establishment's general price list required under the funeral industry practices regulations of the federal trade commission.

AB868-ASA1,12,6 (g) Before an agent, a licensed funeral director or an operator of a funeral establishment accepts an applicant's initial premium for a burial agreement that is funded or will be funded by a life insurance policy, the agent, funeral director or operator of a funeral establishment shall comply with the requirements under par. (h) and shall, in a writing that is clear and conspicuous, disclose the following information to the applicant:

AB868-ASA1,12,8 1. The fact that a life insurance policy is involved in or connected to, or is being used to fund, the burial agreement.

AB868-ASA1,12,9 2. The type of insurance instrument that is funding the burial agreement.

AB868-ASA1,12,10 3. The effect on the burial agreement of all of the following:

AB868-ASA1,12,13 a. Changing the life insurance policy, including changing the assignment of the policy proceeds, changing the beneficiary designation or changing the use of the proceeds.