SB274: Bill Text

Analysis by the Legislative Reference Bureau

This bill creates requirements for authorizing the cremation of human remains, conducting cremations, and disposing of cremated human remains. The bill requires the Department of Regulation and Licensing (DRL) to carry out regulatory duties regarding cremations.

Authorizing the cremation of human remains. Under the bill, only the following persons are allowed to authorize the cremation of the human remains of a decedent: 1) The decedent's surviving spouse may authorize the cremation; 2) If the surviving spouse declines to authorize cremation but does not object to cremation, or if he or she is incapacitated, any one of the decedent's surviving adult children may authorize the cremation, unless another surviving adult child objects in writing to the cremation; 3) If all of the foregoing persons decline to authorize cremation and do not object, or if they are incapacitated, a surviving parent may authorize cremation, unless another surviving parent objects in writing; 4) If all of the foregoing persons decline to authorize cremation and do not object, or if they are incapacitated, a surviving person related in the closest degree of kinship to the decedent may authorize cremation, unless another person of the same degree of kinship objects in writing; and 5) If all of the foregoing persons decline to authorize cremation and do not object, or they are incapacitated, any other person may authorize cremation.

In addition, if a decedent's estate is not sufficient to pay the expenses related to the final disposition of the decedent's human remains, or if final disposition is the responsibility of the state or a local unit of government, the bill allows the following to authorize cremation: 1) the coroner or medical examiner of the county in which the death occurred; or 2) the decedent's guardian at the time of death. However, a coroner, medical examiner, or guardian may not authorize cremation if any person in the first four categories described above objects in writing or states in writing that cremation was contrary to the decedent's religious beliefs. Also, a coroner, medical examiner, or guardian may not authorize cremation if a person that owns or operates a crematory, which the bill defines as a "crematory authority," determines that there is other evidence that cremation was contrary to the decedent's religious beliefs.

A person who is allowed to authorize the cremation of human remains, whom the bill defines as an "authorizing agent," may exercise that authority only by completing an authorization form. The form must state that the authorizing agent has no reason to believe that the decedent's remains contain any device that may be hazardous or cause certain damage during the cremation. The form must also identify the funeral director, funeral establishment, or cemetery that the authorizing agent authorizes to receive the cremated remains. If alternative arrangements are made for receiving the cremated remains, the form must describe the arrangements. In addition, the form must contain other information, including the following: 1) if known by the authorizing agent, the manner in which the cremated remains are to be disposed; 2) an itemized list of any valuables on the decedent's person that must be removed prior to cremation and returned to the authorizing agent; and 3) if a viewing or other services are planned, the date and time of the viewing or services.

The bill allows an authorizing agent to delegate, in writing, the authority to authorize cremation to another individual. In addition, the bill allows an authorizing agent to cancel a cremation by providing the crematory authority with a written revocation of an authorization form and with written instructions regarding the final disposition of the human remains. Also, the bill provides that an authorizing agent is liable for any damages resulting from authorizing a cremation.

Conducting cremations. The bill allows only persons who are registered with DRL as "cremation authorities" to cremate human remains. DRL must register a person who pays a fee, and provides specified information, including a description of the structure and equipment proposed to be used in operating a "crematory," which the bill defines as a building or portion of a building within which a cremation chamber is located. A registration must be renewed every two years.

The bill requires a crematory authority that accepts human remains from a person to provide the person with a receipt. The bill allows a crematory authority to refuse acceptance for any of the following reasons: 1) the container has evidence of leakage of bodily fluids; 2) the crematory authority has knowledge of an unresolved dispute regarding the cremation of the human remains; 3) the crematory authority has reason to believe that a representation of the authorizing agent is not true; or 4) the crematory authority has reason to believe that the human remains contain a device that may be hazardous or cause certain damage during a cremation. In addition, the bill prohibits a crematory authority from refusing acceptance solely on the basis that the human remains have not been placed in a casket or have not been embalmed.

The bill prohibits a crematory authority from cremating human remains, unless it has received the authorization form described above, as well as a copy of a cremation permit and a report for final disposition of a human corpse that are required under current law. In addition, the crematory authority must satisfy other requirements, including requirements regarding holding human remains before cremation, removing cremated remains from a cremation chamber, using containers for cremated remains, and maintaining a system for identifying human remains throughout the cremation process. The bill also imposes requirements on a crematory authority's delivery of cremated remains to another person.

In addition, the bill does the following: 1) requires crematory authorities to maintain permanent records regarding cremations; 2) prohibits crematory authorities from selling material or devices (such as medical devices) obtained from cremating human remains; and 3) prohibits crematory authorities from reselling containers used for cremating human remains. The bill also provides that crematory authorities are immune from civil liability for damages resulting from cremating human remains if they comply with the bill's requirements. However, the immunity does not apply to intentional misconduct, negligent conduct, or the failure to return valuables specified on an authorization form.

Disposing of cremated remains. The bill provides that an authorizing agent is responsible for determining the manner in which cremated remains are disposed. However, if the authorizing agent does not make the determination, the crematory authority must, no sooner than 30 days after the cremation, deliver the cremated remains to the person, funeral establishment, or other business entity that delivered the human remains to the crematory authority for cremation. Such a person, funeral establishment, or business entity may not refuse to accept the cremated remains. No sooner than 60 days after receiving the cremated remains, the person, funeral establishment, or business entity is allowed to determine the manner of disposal and must make a written record of the determination. An authorizing agent, the decedent's estate, or both, are liable for any reasonable expenses for delivery to, and disposal of cremated remains by, such a person, funeral establishment, or business entity.

Under the bill, cremated remains may be disposed of only in one of the following manners: 1) placement in a grave, niche, or crypt; or 2) any other lawful manner, but only if the cremated remains are reduced to a particle size of one-eighth inch or less. Also, unless the prior written consent of the appropriate authorizing agents is obtained, cremated remains of different individuals may not be commingled or placed in the same container.

Other provisions. Other provisions of the bill include the following:

1. The bill allows DRL to take disciplinary action, including revoking a registration, if a crematory authority violates the bill's requirements.

2. The bill creates criminal penalties and civil forfeitures for violating the bill's requirements.

3. The bill allows a person to act as authorizing agent for cremating a part of his or her body, or to authorize another person to act as authorizing agent for such a purpose.

4. The bill specifies the circumstances under which a person is considered incapacitated for purposes of determining who may act as an authorizing agent.

5. The bill creates a Crematory Authority Council to advise DRL on the regulation of crematory authorities. The council consists of three funeral directors, three representatives of cemetery authorities, and one public member.

The bill does not affect any of the following provisions under current law regarding cremations: 1) the requirement to obtain a permit from a coroner or medical examiner before cremating a corpse; 2) the authority of the Department of Health and Family Services to make orders regarding the disposal of human remains during public health emergencies declared by the governor; and 3) the authority of the Department of Commerce to approve the construction of crematoriums.

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 and local 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:

SB274, s. 1 Section 1. 15.407 (8) of the statutes is created to read:

SB274,4,5 15.407 (8) Crematory authority council. There is created a crematory authority council in the department of regulation and licensing consisting of the secretary of regulation and licensing or a designee of the secretary, who shall serve as a nonvoting member, and the following persons appointed for 3-year terms:

SB274,4,7 (a) Three persons licensed as funeral directors under ch. 445 who operate crematories.

SB274,4,9 (b) Three representatives of cemetery authorities, as defined in s. 157.061 (2), who operate crematories.

SB274,4,10 (c) One public member.

SB274, s. 2 Section 2. 157.055 (2) (intro.) of the statutes is amended to read:

SB274,5,5 157.055 (2) (intro.) Notwithstanding ss. 69.18 (4), 445.04 (2), 445.14, 979.01 (3), (3m), and (4), 979.02, and 979.10, and subch. VI of ch. 440, during a period of a state of emergency related to public health declared by the governor under s. 166.03 (1) (b) 1., a public health authority may do all of the following:

SB274, s. 3 Section 3. 440.08 (2) (a) 24m. of the statutes is created to read:

SB274,5,8 440.08 (2) (a) 24m. Crematory authority: January 1 of each even-numbered year; $53.

SB274, s. 4 Section 4. Subchapter VI of chapter 440 [precedes 440.70] of the statutes is created to read:

SB274,5,11 chapter 440

SB274,5,13 subchapter VI crematory authorities

SB274,5,14 440.70 Definitions. As used in this subchapter:

SB274,5,15 (1) "Authorization form" means a form specified in s. 440.73.

SB274,5,17 (2) "Authorizing agent" means an individual who acts as an authorizing agent under s. 440.72 or to whom a delegation of authority is made under s. 440.74.

SB274,5,18 (3) "Business entity" has the meaning given in s. 452.01 (3j).

SB274,5,20 (4) "Columbarium" means a building, structure, or part of a building or structure that is used or intended to be used for the inurnment of cremated remains.

SB274,5,23 (5) "Cremated remains" means all human remains recovered from the cremation of a human body or body part and the residue of any container or foreign materials that were cremated with the body or body part.

SB274,5,25 (6) "Cremation" means the process of using heat to reduce human remains to bone fragments and includes processing or pulverizing the bone fragments.

SB274,6,2 (7) "Cremation chamber" means an enclosed space within which cremation takes place.

SB274,6,4 (8) "Crematory" means a building or portion of a building within which a cremation chamber is located.

SB274,6,5 (9) "Crematory authority" means a person who own or operates a crematory.

SB274,6,6 (10) "Funeral director" has the meaning given in s. 445.01 (5).

SB274,6,7 (11) "Funeral establishment" has the meaning given in s. 445.01 (6).

SB274,6,9 (12) "Human remains" means the body or part of the body of a deceased individual.

SB274,6,11 (13) "Incapacitated" means unable to receive and evaluate information effectively or to communicate decisions.

SB274,6,13 (14) "Niche" means a space in a columbarium that is used or intended to be used for the inurnment of cremated remains.

SB274,6,16 440.71 Registration; renewal. (1) Prohibition. No person may cremate human remains unless the department has registered the person as a crematory authority under sub. (2).

SB274,6,18 (2) Registration. The department shall register a person as a crematory authority if the person does all of the following:

SB274,6,19 (a) Pays the fee specified in s. 440.05 (1).

SB274,6,21 (b) Submits an application on a form provided by the department that includes each of the following:

SB274,6,23 1. The name and address of the applicant or the business entity that the applicant represents.

SB274,6,24 2. The address of the crematory.

SB274,7,2 3. A description of the structure and equipment proposed to be used in operating the crematory.

SB274,7,3 4. Any other information that the department may require.

SB274,7,7 (3) Renewal. Renewal applications shall be submitted to the department on a form provided by the department on or before the applicable renewal date specified under s. 440.08 (2) (a) and shall include the applicable renewal fee specified under s. 440.08 (2) (a).

SB274,7,10 440.72 Authorizing agents. (1) Except as provided in subs. (3) and (4), only the following may act as an authorizing agent and direct the cremation of the human remains of a decedent:

SB274,7,11 (a) The decedent's surviving spouse.

SB274,7,17 (b) Any one of the decedent's surviving adult children who confirms in writing to the crematory authority that all other surviving children have been notified about the cremation, if the individual specified in par. (a) declines to act as authorizing agent but does not object to the cremation, or is dead or incapacitated, unless another surviving adult child of the decedent provides a written objection to the cremation to the crematory authority.

SB274,7,21 (c) A surviving parent of the decedent, if all the individuals specified in pars. (a) and (b) decline to act as authorizing agent but do not object to the cremation, or are dead or incapacitated, unless another surviving parent of the decedent provides a written objection to the cremation to the crematory authority.

SB274,8,2 (d) A surviving individual related in the closest degree of kinship to the decedent, as determined under s. 990.001 (16), if all the individuals specified in pars. (a) to (c) decline to act as authorizing agent but do not object to the cremation, or are dead or incapacitated, unless another surviving individual of the same degree of kinship provides a written objection to the cremation to the crematory authority.

SB274,8,5 (e) Any other person, if all of the other individuals specified in pars. (a) to (d) decline to act as authorizing agent but do not object to the cremation, or are dead or incapacitated.

SB274,8,13 (2) An individual is incapacitated for purposes of sub. (1) if 2 physicians licensed under subch. II of ch. 448, or one physician licensed under subch. II of ch. 448 and one psychologist licensed under ch. 455, have personally examined the individual and signed a statement specifying that the individual is incapacitated. Mere old age, eccentricity, or physical disability, either singly or together, are insufficient to make a finding that an individual is incapacitated. Neither of the individuals who make a finding that an individual is incapacitated may be a relative, as defined in s. 242.01 (11), of the individual.

SB274,8,18 (3) If a decedent's estate is insufficient to pay the expenses related to final disposition of the decedent's human remains, or if final disposition of the decedent's human remains is the responsibility of the state or a local unit of government, the following persons, in the priority listed, may act as an authorizing agent and direct the cremation of the decedent's human remains:

SB274,8,23 (a) Any individual specified in sub. (1) (a) to (d), unless one of those individuals objects in writing to the cremation or states in writing that cremation was contrary to the religious beliefs of the decedent or unless the crematory authority determines that there is any other evidence that cremation was contrary to the religious beliefs of the decedent.

SB274,8,25 (b) The coroner or medical examiner of the county in which the decedent's death occurred.

SB274,9,1 (c) The decedent's guardian at the time of the decedent's death.

SB274,9,5 (4) An individual may not act as an authorizing agent unless he or she has made all reasonable efforts to contact all individuals under sub. (1) that have superior authority to act as an authorizing agent and confirmed that such individuals do not object to the cremation.

SB274,9,8 (5) An individual may act as an authorizing agent, or authorize another individual to act as an authorizing agent, for purposes of directing the cremation of his or her own body part.

SB274,9,11 440.73 Authorization forms. An authorizing agent may direct the cremation of the human remains of a decedent only by completing a form that includes all of the following:

SB274,9,12 (1) The name of the decedent and the date and time of the decedent's death.

SB274,9,14 (2) The name of the authorizing agent and his or her relationship to the decedent.

SB274,9,18 (3) A statement that the authorizing agent has the authority to authorize the cremation and either that no other individual has superior authority or that the authorizing agent has made all reasonable efforts to contact all individuals with superior authority and such individuals do not object to cremation.

SB274,9,21 (4) A statement that the authorizing agent has no reason to believe that the decedent's remains contain any device that may be hazardous or cause damage to the cremation chamber or an individual performing the cremation.

SB274,9,25 (5) The name of the funeral director, funeral establishment, or cemetery that the authorizing agent authorizes to receive the cremated remains or, if alternative arrangements are made for receiving the cremated remains, a description of those arrangements.

SB274,10,2 (6) If known by the authorizing agent, the manner in which the cremated remains are to be disposed.

SB274,10,4 (7) An itemized list of any valuables on the decedent's person that are to be removed prior to cremation and returned to the authorizing agent.

SB274,10,6 (8) If a viewing or other services are planned, the date and time of the viewing or services.

SB274,10,8 (9) The signature of the authorizing agent attesting to the accuracy of all representations contained on the form.

SB274,10,11 440.74 Delegation of authority. An authorizing agent may, in writing, delegate the authority to direct the cremation of the human remains of a decedent to another individual. The delegation shall include all of the following:

SB274,10,13 (1) The name and address of the authorizing agent and the relationship of the authorizing agent to the decedent.

SB274,10,15 (2) The name and address of the individual to whom the delegation is made and the relationship of the authorizing agent to that individual.

SB274,10,18 440.75 Liability of authorizing agent. An authorizing agent is liable for damages resulting from authorizing the cremation of the human remains of a decedent.

SB274,10,23 440.76 Revocation of authorization. Before a cremation is performed, an authorizing agent may cancel the cremation by providing the crematory authority with a written statement revoking the authorization form. An authorizing agent who revokes an authorization form shall provide the crematory authority with written instructions regarding the final disposition of the human remains.