AB984: Bill Text

LRB-3508/1

DAK:wlj/lmk/kjf:rs

2005 - 2006 LEGISLATURE

2005 Assembly BILL 984

February 2, 2006 - Introduced by Representatives Sherman, Townsend, Albers, Berceau, Hebl, Lehman and Travis, cosponsored by Senators Grothman, Erpenbach, Jauch, Miller, Risser and Hansen. Referred to Committee on Judiciary.

AB984,1,3 An Act to repeal and recreate chapter 154 (title); and to create subchapter IV of chapter 154 [precedes 154.30] of the statutes; relating to: declarations of final disposition and providing penalties.

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 aged at least 18 years to execute a written, witnessed document, termed a "declaration of final disposition" (declaration). This document may express the decisions and preferences of the individual (declarant) concerning disposition of the declarant's body after death, including arrangements for a viewing; a funeral ceremony, memorial service, graveside service, or other least rite; and burial, cremation and burial or other disposition, or donation of the declarant's body. The declaration must be signed voluntarily by the declarant in the presence of two witnesses or a notary public. A declarant may designate an individual to act as final disposition agent and another individual to act as alternate final disposition agent with respect to the declarant's decisions and preferences. If designated, the final disposition agent and any alternate must also sign the declaration. A final disposition agent or alternate is required to carry out the declarant's decisions and preferences unless the decision or preference exceeds available resources from the declarant's estate or there is no realistic possibility of compliance. The bill specifies a declaration form and a statement of notice to the declarant, although a written document that meets certain requirements for a declaration need not follow this form or contain the notice. The Department of Health and Family Services must prepare and provide copies of the statutory form and notice, and certain other information, for distribution to funeral directors, crematory 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.

Under the bill, in a declaration a declarant may make, or refuse to make, an anatomical gift if the gift meets the requirements of the laws relating to anatomical gifts. An anatomical gift made in a declaration supercedes a prior, conflicting, unrevoked anatomical gift or a prior, unrevoked refusal to make an anatomical gift made by the declarant. A refusal, in a declaration, to make an anatomical gift supercedes a prior, conflicting, unrevoked anatomical gift made by the declarant.

The bill subjects carrying out a declaration to the powers and duties of coroners, medical examiners, and certain physicians with respect to reporting certain deaths and performing autopsies and inquests. The bill also specifies methods by which a declarant may revoke a declaration. The bill provides civil and criminal immunities to funeral directors, cemeteries, crematory authorities, final disposition agents, and alternate final disposition agents, and prohibits charging these persons with unprofessional conduct, for complying in good faith with the provisions of a declaration or failing to act on a revocation of a declaration in the absence of actual knowledge of the revocation; and provides civil and criminal immunities to witnesses to a declaration who act in good faith.

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 a declaration without consent or who knowingly dispose of a body in a manner that is inconsistent with a declaration, unless the declarant's decisions or preferences exceed available resources from the declarant's estate or there is no realistic possibility of compliance with the decisions or preferences.

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:

AB984, s. 1 Section 1. Chapter 154 (title) of the statutes is repealed and recreated to read:

AB984,2,2 chapter 154

AB984,2,3 advance directives

AB984, s. 2 Section 2. Subchapter IV of chapter 154 [precedes 154.30] of the statutes is created to read:

AB984,3,3 chapter 154

AB984,3,5 Subchapter IV declaration of final disposition

AB984,3,6 154.30 Definitions. In this subchapter:

AB984,3,8 (1) "Declarant" means an individual who executes a declaration of final disposition.

AB984,3,11 (2) "Declaration of final disposition" means a written, witnessed document that is voluntarily executed under s. 154.32, but is not limited in form or substance to that provided in s. 154.34.

AB984,3,12 (3) "Final disposition agent" means one of the following:

AB984,3,16 (a) An individual specifically designated in a declaration of final disposition or, if that individual is unable or unwilling to carry out the declarant's decisions and preferences, an alternate individual specifically designated by the declarant in the declaration of final disposition to do so.

AB984,3,17 (b) An individual specified in s. 154.32 (5) (b).

AB984,3,19 (4) "Incapacitated" means unable to receive and evaluate information effectively or to communicate decisions.

AB984,3,25 154.32 Declaration of final disposition. (1) Who may execute. An individual who is of sound mind and has attained age 18 may voluntarily execute a declaration of final disposition, which shall take effect on the date of execution. An individual for whom an adjudication of incompetence and appointment of a guardian of the person is in effect under ch. 880 is presumed not to be of sound mind for purposes of this subsection.

AB984,4,1 (2) Effect. A declaration of final disposition does any of the following:

AB984,4,3 (a) Expresses the declarant's decisions and preferences concerning any of the following:

AB984,4,4 1. Arrangements for a viewing.

AB984,4,5 2. Funeral ceremony, memorial service, graveside service, or other last rite.

AB984,4,7 3. Burial, cremation and burial or other disposition, or donation of the individual's body after death.

AB984,4,11 (b) Requires that any decisions and preferences of the declarant expressed in the declarant's declaration of final disposition be carried out as expressed unless the decisions or preferences exceed available resources from the declarant's estate or there is no realistic possibility of compliance.

AB984,4,14 (3) Limitations. A declaration of final disposition may not supercede any conflicting provisions of a burial agreement under s. 445.125 that is made before execution of the declaration of final disposition.

AB984,4,22 (4) Signature; witnesses. A declaration of final disposition shall be signed voluntarily by the declarant in the presence of 2 witnesses or in the presence of a notary public and shall be acknowledged by the signature of the final disposition agent or any alternate, if designated. If the declarant is physically unable to sign a declaration of final disposition, the declaration shall be signed in the declarant's name by an individual at the declarant's express direction and in his or her presence; such a proxy signing shall take place or be acknowledged by the declarant in the presence of 2 witnesses or a notary public.

AB984,5,3 (5) Final disposition agent. In the declaration of final disposition, a declarant may, but need not, designate an individual to act as final disposition agent in the declarant's behalf with respect to the declarant's decisions and preferences concerning the matters specified in sub. (2), and designate an alternate individual to serve as his or her final disposition agent in the event that the final disposition agent first designated is unable or unwilling to act as intended.

AB984,5,6 154.34 Declaration of final disposition; form. (1) A printed form of a declaration of final disposition shall contain the following statement in not less than 10-point boldface type:

AB984,5,7 "NOTICE TO PERSON MAKING THIS DOCUMENT

AB984,6,3 YOU HAVE THE RIGHT TO MAKE DECISIONS ABOUT ANY DISPOSITION THAT IS TO BE MADE OF YOUR BODY AFTER DEATH. YOU MAY SIGN THIS LEGAL DOCUMENT TO SPECIFY THE PERSON WHOM YOU WANT TO MAKE DECISIONS ABOUT THAT DISPOSITION OR TO CARRY OUT YOUR SPECIFIC DECISIONS AND PREFERENCES IN THIS REGARD. THAT PERSON IS KNOWN AS YOUR FINAL DISPOSITION AGENT AND MAY BE ANYONE YOU CHOOSE, INCLUDING A FAMILY MEMBER, A FRIEND, OR A FUNERAL DIRECTOR OR CREMATORY AUTHORITY. YOU MAY ALSO SPECIFY AN ALTERNATE FINAL DISPOSITION AGENT, TO SERVE IF THE FIRST FINAL DISPOSITION AGENT IS UNABLE OR UNWILLING TO ACT. YOU SHOULD TAKE SOME TIME TO DISCUSS YOUR THOUGHTS AND BELIEFS ABOUT FINAL DISPOSITION WITH THE PERSON OR PERSONS WHOM YOU HAVE SPECIFIED. YOU MAY STATE IN THIS DOCUMENT ANY TYPES OF VIEWING ARRANGEMENTS, FUNERAL CEREMONY OR OTHER LAST RITE, BURIAL, CREMATION, OR DONATION OF ALL OR PART OF YOUR BODY THAT YOU DO OR DO NOT DESIRE, OR YOU MAY SPECIFY A FINAL DISPOSITION AGENT AND ALLOW THAT PERSON TO MAKE THOSE DECISIONS. THE DECISIONS OR PREFERENCES THAT YOU EXPRESS IN THIS DOCUMENT WILL BE CARRIED OUT UNLESS THEY EXCEED AVAILABLE RESOURCES FROM YOUR ESTATE OR THERE IS NO REALISTIC POSSIBILITY THAT THEY CAN BE COMPLIED WITH.

AB984,6,11 SIGNING THIS DOCUMENT REVOKES ANY PRIOR DECLARATION OF FINAL DISPOSITION THAT YOU MAY HAVE MADE. IF YOU WISH TO CHANGE THIS DECLARATION OF FINAL DISPOSITION, YOU MAY REVOKE THIS DOCUMENT AT ANY TIME BY DESTROYING IT, BY DIRECTING ANOTHER PERSON TO DESTROY IT IN YOUR PRESENCE, OR BY SIGNING A WRITTEN AND DATED STATEMENT. IF YOU REVOKE, YOU SHOULD NOTIFY YOUR AGENT AND ANY OTHER PERSON TO WHOM YOU HAVE GIVEN A COPY.

AB984,6,14 IF YOUR AGENT IS YOUR SPOUSE AND YOUR MARRIAGE IS ANNULLED OR YOU ARE DIVORCED AFTER SIGNING THIS DOCUMENT, THIS DOCUMENT IS INVALID.

AB984,6,21 YOU MAY ALSO USE THIS DOCUMENT TO MAKE OR REFUSE TO MAKE AN ANATOMICAL GIFT UPON YOUR DEATH. IF YOU USE THIS DOCUMENT TO MAKE OR REFUSE TO MAKE AN ANATOMICAL GIFT, THE DOCUMENT REVOKES ANY PRIOR DOCUMENT OF GIFT THAT YOU MAY HAVE MADE. YOU MAY LATER REVOKE OR CHANGE ANY ANATOMICAL GIFT THAT YOU MAKE BY THIS DOCUMENT BY CROSSING OUT THE ANATOMICAL GIFTS PROVISION IN THIS DOCUMENT.

AB984,6,23 DO NOT SIGN THIS DOCUMENT UNLESS YOU CLEARLY UNDERSTAND IT.

AB984,7,3 IT IS SUGGESTED THAT YOU KEEP THE ORIGINAL OF THIS DOCUMENT ON FILE WITH YOUR FINAL DISPOSITION AGENT OR FUNERAL DIRECTOR OR CREMATORY AUTHORITY.".

AB984,7,15 (2) The department shall prepare and provide copies of the declaration of final disposition form and accompanying information for distribution in quantities to funeral directors, crematory authorities, hospitals, nursing homes, county clerks, and local bar associations and individually to private persons. The department shall include, in information accompanying the declaration of final disposition form, at least the statutory definitions of terms used in the form, a statement explaining that valid witnesses acting in good faith are statutorily immune from civil or criminal liability, and an instruction to potential declarants to read and understand the information before completing the form. The department may charge a reasonable fee for the cost of preparation and distribution. The declaration of final disposition form distributed by the department shall be easy to read, in type size no smaller than 10-point, and in the following form:

Declaration of final disposition

AB984,7,20 I, .... (print name, address, and date of birth), being of sound mind, intend by this document to specify the disposition that is to be made of my body after death and that my decisions and preferences in this regard be honored. My executing this document is voluntary. In addition, I may, by this document, specify my wishes with respect to making an anatomical gift upon my death.

Designation of final disposition agent (Optional)