AB305: Bill Text

2007 - 2008 LEGISLATURE

2007 Assembly BILL 305

May 2, 2007 - Introduced by Representatives Kerkman, Sherman, Albers, Berceau, Bies, Boyle, Gronemus, Hahn, Hebl, Jeskewitz, Kleefisch, Kreuser, Montgomery, Nygren, Parisi, Sheridan, Travis, Turner, Van Roy and M. Williams, cosponsored by Senators Miller, Hansen, Lehman, Olsen, Risser, Roessler and Schultz. Referred to Committee on State Affairs.

AB305,1,4 An Act to renumber 69.18 (4) (a) 1.; to amend 69.20 (2) (a) 2.; to repeal and recreate chapter 154 (title); and to create 69.18 (4) (a) 1g. and subchapter IV of chapter 154 [precedes 154.30] of the statutes; relating to: control of final disposition of certain human remains and providing a penalty.

Analysis by the Legislative Reference Bureau

Currently, if the applicable assets of the estate of a decedent are insufficient to pay all claims and allowances in full, the personal representative for the decedent's estate must pay certain items under an order of priority that begins with the costs and expenses of administering the estate, followed by the reasonable funeral and burial expenses, and then other items.

This bill authorizes an individual who is of sound mind and at least 18 years of age to execute a written, witnessed document, termed an "authorization for final disposition" (authorization). This document may express the special directions, instructions concerning religious observances, and suggestions concerning the source of funds of the individual (declarant) for disposition of the declarant's body after death (final disposition), including arrangements for a viewing; a funeral ceremony, memorial service, graveside service, or other last rite; and burial, cremation and burial or other disposition, or donation of the declarant's body. The authorization must be signed voluntarily by the declarant in the presence of two witnesses or a notary public. An authorization requires a representative and one or more named successor representatives to carry out the directions, instructions, and suggestions of the declarant unless the directions, instructions, or suggestions exceed available resources from the decedent's estate or are unlawfulor or unless there is no realistic possibility of compliance. The bill specifies an authorization form, although a written document that meets certain requirements for an authorization need not follow this form. The Department of Health and Family Services must prepare and provide copies of the statutory form and certain other information for distribution to funeral directors, crematory authorities, cemetery authorities, hospitals, nursing homes, county clerks, and local bar associations, and individually to private persons, and may charge a reasonable fee for the preparation and distribution.

The bill specifies a list of individuals, in order of priority, who may control the disposition of the decedent's remains. The list includes, in order, the authorized representative of the decedent acting under the decedent's authorization or a successor representative, the decedent's surviving spouse, child, parent, and sibling, an individual in the next degree of kinship, the decedent's guardian of the person, and another individual who meets specified criteria. If individuals qualified on the same level of priority disagree concerning the final disposition, the bill specifies a process and criteria for determination by a probate court of the individual with control of final disposition. The bill provides civil and criminal immunities for a funeral director, crematory authority, or cemetery authority who refuses to accept the decedent's remains or inter or otherwise dispose of the remains or complete arrangements for final disposition, if individuals qualified on the same level of priority disagree, unless ordered by a probate court or unless presented with a written agreement of the individuals. A funeral director, crematory authority, or cemetery authority that retains the decedent's remains during such a dispute may add the costs of the retention to final disposition costs. The bill also provides a funeral director, crematory authority, or cemetery authority with civil or criminal immunity for certain actions in good faith reliance on instructions from an individual who claims priority.

The bill prohibits control of final disposition by any of the individuals specified in the prioritized list if the individual has been charged with any of several crimes in connection with the decedent's death, except that, if the charges have been dismissed or the individual has been found not guilty, the individual is restored to his or her level of priority in the list for control of final disposition. The bill also prohibits control of final disposition by an authorized individual who fails to exercise authorization within two days after notification of the decedent's death or who cannot be located; by the decedent's spouse, if an order to terminate the marriage was pending at the time of the decedent's death; and by an individual whom the probate court determines was estranged from the decedent at the time of the decedent's death. The bill prohibits a funeral director, crematory authority, cemetery authority, employee of these, a member of the clergy, a health care provider, a hospice worker, or a social worker from acting as a declarant's representative unless related to the declarant by blood, marriage, or adoption.

Under the bill, an unrevoked anatomical gift made by the decedent or by an individual other than the decedent and any power or duty of a coroner, medical examiner, or other physician with respect to reporting certain deaths or performance of autopsies and inquests supercede any control of final disposition specified in the bill. The bill also specifies methods by which a declarant may revoke an authorization.

Lastly, the bill specifies a fine of not more than $500 or imprisonment for not more than 30 days, or both, for persons who intentionally conceal, cancel, deface, obliterate, or damage an authorization without consent.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

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

AB305, s. 1 Section 1. 69.18 (4) (a) 1. of the statutes is renumbered 69.18 (4) (a) 1m.

AB305, s. 2 Section 2. 69.18 (4) (a) 1g. of the statutes is created to read:

AB305,3,3 69.18 (4) (a) 1g. An individual specified under s. 154.30 (2) (b).

AB305, s. 3 Section 3. 69.20 (2) (a) 2. of the statutes is amended to read:

AB305,3,7 69.20 (2) (a) 2. For a certificate of death, any of the persons specified under s. 69.18 (4) (a) 1. 1g. to 6. or an individual who is authorized in writing by one of the persons.

AB305, s. 4 Section 4. Chapter 154 (title) of the statutes is repealed and recreated to read:

AB305,3,10 chapter 154 advance directives

AB305, s. 5 Section 5. Subchapter IV of chapter 154 [precedes 154.30] of the statutes is created to read:

AB305,3,13 chapter 154

AB305,3,15 subchapter iv authorization for final disposition

AB305,4,5 154.30 Control of final disposition of certain human remains. (1) Definitions. (a) "Authorization for final disposition" means a written, signed document that is acknowledged before a notary public or is witnessed and that is voluntarily executed by a declarant under sub. (8), but is not limited in form or substance to that provided in sub. (8).

AB305,4,6 (b) "Cemetery authority" has the meaning given in s. 157.061 (2).

AB305,4,7 (c) "Credential" has the meaning given in s. 440.01 (2) (a).

AB305,4,8 (d) "Crematory authority" has the meaning given in s. 440.70 (9).

AB305,4,10 (e) "Declarant" means an individual who executes an authorization for final disposition.

AB305,4,13 (f) "Estranged" means being physically and emotionally alienated for a period of time, at the time of the decedent's death, and clearly demonstrating an absence of due affection, trust, and regard.

AB305,4,15 (g) "Final disposition" means disposition of a decedent's remains, including any of the following:

AB305,4,16 1. Arrangements for a viewing.

AB305,4,17 2. A funeral ceremony, memorial service, graveside service, or other last rite.

AB305,4,19 3. A burial, cremation and burial, or other disposition, or donation of the decedent's body.

AB305,4,20 (h) "Funeral director" has the meaning given in s. 445.01 (5).

AB305,4,22 (i) "Health care provider" means any person who has a credential to provide health care.

AB305,4,24 (j) "Hospice worker" means a person who provides care in or through a hospice, as defined in s. 50.90 (1).

AB305,4,25 (k) "Member of the clergy" has the meaning given in s. 765.002 (1).

AB305,5,4 (L) "Representative" means an individual specifically designated in an authorization for final disposition or, if that individual is unable or unwilling to carry out the declarant's decisions and preferences, a successor representative designated in the authorization for final disposition to do so.

AB305,5,5 (m) "Social worker" has the meaning given in s. 252.15 (1) (er).

AB305,5,10 (2) Individuals with control of final disposition; order. (a) Except as provided in par. (b) and sub. (3), any of the following, as prioritized in the following order, who is at least 18 years old and has not been adjudicated incompetent under ch. 880, may control final disposition, including the location, manner, and conditions of final disposition:

AB305,5,13 1. Subject to sub. (8) (e), a representative of the decedent acting under the decedent's authorization for final disposition that conveys to the representative the control of final disposition, or a successor representative.

AB305,5,14 2. The surviving spouse of the decedent.

AB305,5,20 3. The surviving child of the decedent, unless more than one child of the decedent survives. In such an instance, the majority of the surviving children has control of the final disposition, except that fewer than the majority of the surviving children may control the final disposition if that minority has used reasonable efforts to notify all other surviving children and is not aware of opposition by the majority to the minority's intended final disposition.

AB305,5,23 4. The surviving parent or parents of the decedent or a surviving parent who is available if the other surviving parent is unavailable after the available surviving parent has made reasonable efforts to locate him or her.

AB305,6,4 5. The surviving sibling of the decedent, unless more than one sibling of the decedent survives. In such an instance, the majority of the surviving siblings has control of the final disposition, except that fewer than the majority of the surviving siblings may control the final disposition if that minority has used reasonable efforts to notify all other surviving siblings and is not aware of opposition by the majority to the minority's intended final disposition.

AB305,6,6 6. In descending order, an individual in the class of the next degree of kinship specified in s. 990.001 (16).

AB305,6,7 7. The guardian of the person, if any, of the decedent.

AB305,6,10 8. Any individual other than an individual specified under subds. 1. to 7. who is willing to control the final disposition and who attests in writing that he or she has made a good-faith effort, to no avail, to contact the individuals under subds. 1. to 7.

AB305,6,16 (b) Control of final disposition under par. (a), in the order of priority specified in par. (a), is restored to an individual specified in sub. (3) (b) 1. for whom charges under sub. (3) (b) 1. a. to d. are dismissed or who is found not guilty of the offense. Subject to s. 69.18 (4), the control of final disposition under this paragraph, with respect to a decedent for whom disposition has already been made of his or her remains, is limited, as appropriate, to any of the following:

AB305,6,17 1. A funeral ceremony, memorial service, graveside service, or other last rite.

AB305,6,18 2. Disinterment.

AB305,6,20 3. Reinterment, cremation and reinterment, or other disposition of the decedent's body.

AB305,6,22 (3) Exceptions. (a) All of the following are exceptions to any control conferred under sub. (2):

AB305,6,25 1. The disposition of any unrevoked anatomical gift made by the decedent under s. 157.06 (2) or made by an individual other than the decedent under s. 157.06 (3) or (4).

AB305,7,3 2. Any power or duty of a coroner, medical examiner, or other physician licensed to perform autopsies with respect to the reporting of certain deaths, performance of autopsies, and inquests under ch. 979.

AB305,7,5 (b) None of the following is authorized under sub. (2) to control the final disposition:

AB305,7,10 1. Unless sub. (2) (b) applies, an individual who is otherwise authorized to control final disposition under the order of priority of individuals specified in sub. (2) (a) but who has been charged with any of the following in connection with the decedent's death and the charges are known to the funeral director, crematory authority, or cemetery authority:

AB305,7,11 a. First-degree intentional homicide under s. 940.01 (1).

AB305,7,12 b. First-degree reckless homicide under s. 940.02.

AB305,7,13 c. Second-degree intentional homicide under s. 940.05.

AB305,7,14 d. Second-degree reckless homicide under s. 940.06.

AB305,7,18 2. An individual who is otherwise authorized to control final disposition under the order of priority of individuals specified in sub. (2) (a) but who fails to exercise this authorization within 2 days after he or she is notified of the decedent's death or who cannot be located after reasonable efforts to do so has been made.

AB305,7,20 3. The decedent's spouse, if an action under ch. 767 to terminate the marriage of the spouse and the decedent was pending at the time of the decedent's death.

AB305,7,23 4. An individual for whom a determination is made under by the probate court under par. (c) 2. b. that the individual and the decedent were estranged at the time of death.

AB305,8,3 (c) If the individuals on the same level of priority specified in sub. (2) (a) are unable to agree on the final disposition, the probate court that has jurisdiction for the county in which the decedent resided at the time of his or her death may designate an individual as most fit and appropriate to control the final disposition. All of the following apply to a designation made under this paragraph:

AB305,8,5 1. After the decedent's death, a petition regarding control of the final disposition shall be filed with the probate court by any of the following:

AB305,8,6 a. A relative of the decedent.

AB305,8,10 b. An individual seeking control of the final disposition who claims a closer personal relationship to the decedent than the decedent's next of kin, who has lived with the decedent, and who was not in the employ of the decedent or the decedent's family.

AB305,8,14 c. If 2 or more individuals on the same level of priority in sub. (2) (a) cannot, by majority vote, decide concerning the final disposition, any of those individuals or the funeral director, crematory authority, or cemetery authority that possesses the decedent's remains.

AB305,8,15 2. The probate court may consider all of the following:

AB305,8,16 a. The reasonableness and practicality of the proposed final disposition.

AB305,8,19 b. The degree of the personal relationship between the decedent and each of the individuals claiming the right of final disposition, including whether the decedent was estranged from any of the individuals.

AB305,8,21 c. Except as provided in subd. 3., the desires of the individual or individuals who are ready, able, and willing to pay the cost of the final disposition.

AB305,8,22 d. The express written desires of the decedent.

AB305,8,25 e. The degree to which any proposed final disposition would permit maximum participation by family members, friends, and others who wish to pay final respects to the decedent.

AB305,9,4 3. An individual's payment or agreement to pay for all or part of the costs of final disposition, or the fact that an individual is the personal representative of the decedent, does not, by itself, provide the individual any greater opportunity to control the final disposition than the individual otherwise has under this section.

AB305,9,9 (4) Declining to exercise control or resigning control. An individual who is otherwise authorized to control final disposition under the order of priority of individuals specified in sub. (2) (a) or who is designated under sub. (3) (c) may accept the control, may decline to exercise the control, or may, after accepting the control, resign it.

AB305,9,18 (5) Liability of funeral director, crematory authority, or cemetery authority. (a) If inability to agree exists among any individuals, as specified in sub. (3) (c) (intro.), no funeral director, crematory authority, or cemetery authority is civilly or criminally liable for his or her refusal to accept the decedent's remains, to inter or otherwise dispose of the decedent's remains, or to complete the arrangements for the final disposition unless specifically directed to do so under an order of the probate court or unless the individuals in disagreement present the funeral director, crematory authority, or cemetery authority with a written agreement, signed by the individuals, that specifies the final disposition.

AB305,9,25 (b) A funeral director, crematory authority, or cemetery authority that retains the remains of a decedent for final disposition before individuals specified in sub. (3) (c) (intro.) reach agreement or before the probate court makes a final decision under sub. (3) (c) may embalm the remains, unless the authorization for final disposition forbids embalming, or may refrigerate and shelter the remains while awaiting the agreement or the probate court's decision and may add the cost of embalming or refrigeration and shelter, as appropriate, to the final disposition costs.

AB305,10,4 (c) If a funeral director, crematory authority, or cemetery authority files a petition under sub. (3) (c) 1., the funeral director, crematory authority, or cemetery authority may add to the cost of final disposition reasonable legal fees and costs associated with the court's review of the petition.

AB305,10,9 (d) This subsection may not be construed to require or otherwise impose a duty upon a funeral director, crematory authority, or cemetery authority to file a petition under sub. (3) (c) 1., and a funeral director, crematory authority, or cemetery authority may not be held criminally or civilly liable for failing or omitting to file the petition.