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During estate planning many documents are prepared in order to designate an agent or agents in the event that you are not of sound mind and body and unable to make decisions on your own, such as a health care proxy, a living will, and a power of attorney. Additionally, New York State Public Health Law § 4201 allows a person to designate an agent or agents for the disposition of his or her remains. In this written instrument, you can list out your wishes for your remains, including decisions on whether you want to be buried or cremated, whether you have already arranged for funeral merchandise or services with a funeral home, and any other wishes you want carried out.
PBH § 4201(2) lists the persons, defined as a natural person eighteen years or older, who shall have the right to control disposition of remains, in descending priority, as follows:
i. A person designated in a written instrument executed properly
ii. The decedent’s surviving spouse or domestic partner
iii. Any of the decedent’s surviving children eighteen years of age or older
iv. Either of the decedent’s surviving parents
v. Any of the decedent’s surviving siblings eighteen years of age or older
vi. A guardian appointed pursuant to article seventeen or seventeen-A of the Surrogate’s Court Procedure Act or article eighty-one of the Mental Hygiene Law
vii. Any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the Estates, Powers, and Trusts Law, with the person closest in relationship having the highest priority
viii. A duly appointed fiduciary of the estate of the decedent
ix. A close friend or relative who is reasonably familiar with the decedent’s wishes, including the decedent’s religious or moral beliefs, when no one higher on this list is reasonably available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section
x. A chief fiscal officer of a county or a public administrator pursuant to article twelve or thirteen of the Surrogate’s Court Procedure Act, or any other person acting on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section
In order to have a properly executed written instrument that will appoint an agent to dispose of your remains in the manner you wish, the following must be included in the instrument per PBH § 4201(3):
• Your full name and address
• Statement declaring that you are of sound mind and body when executing the written instrument
• Designation of agent or agents
• Designation of successors if agent(s) dies, resigns, or is unable to act
• List of any and all specific instructions that you wish to be followed upon your death
• Indication of whether or not you have entered into a pre-funded or pre-need arrangement for funeral merchandise or services as defined per New York State General Business Law § 453
• Document must be witnessed by two witnesses over the age of 18
• Your signature and signature(s) of agent(s) must be formally witnessed
Deciding on how your wish your remains to be handled and who should be assigned these responsibilities can be a tough decision to make. Rincker Law, PLLC is prepared to help you navigate the law of New York concerning this matter and assist in deciding and properly designating a person to handle these affairs after your passing.