HB2047 - 481R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 32-1365.02, Arizona Revised Statutes, is amended to read:

START_STATUTE32-1365.02. Authorizing agents; consent for cremation, disinterment or embalming

A. Except as provided in section 32‑1365.01 and in subsection E F of this section, it is unlawful to cremate or disinter a dead human body without prior written consent of the authorizing agent.

B. Except as provided in section 32‑1365.01, it is unlawful to embalm a dead human body without prior oral or written consent of the authorizing agent.

C. A funeral establishment shall create a written record of an oral consent given pursuant to this subsection section that includes all of the following:

1. The name of the authorizing agent.

2. The relation of the authorizing agent to the deceased.

3. The date and time that consent was given.

4. The name of the person who obtained the consent.

5. Any other information required by the board.

D. In determining who the proper authorizing agent is, the following order of preference governs unless a waiver is signed pursuant to subsection L of this section:

1. The surviving spouse, unless the decedent and spouse were legally separated.

2. The person who is designated as having power of attorney for the decedent in the decedent's most recent durable power of attorney.

2. A surviving adult child.

3. A surviving parent.

4. A surviving adult brother or sister.

3. surviving adult children of the decedent.

4. surviving parents of the decedent.

5. surviving adult siblings of the decedent.

6. ~~Adult gr~~andchildren of the decedent.

7. Grandparents of the decedent.

5. 8. For ~~cremation or embalming~~, any other person or organization that is willing to assume legal and financial responsibility for the cremation or embalming. Preference under this paragraph shall be given in the following order:

(a) The executor of the decedent's estate.

(b) The guardian of the decedent at the time of death.

E. If there is more than one member of a class listed in subsection D, paragraphs 3, 4, 5, 6 or 7 of this section entitled to serve as the authorizing agent, final arrangements may be made by a member of that class unless that member knows of an objection by another member of the class. If an objection is known, final arrangements shall be made by a majority of the members of the class who are reasonably available.

E. f. On the order of a court or a county medical examiner, or a person performing the duties of a county medical examiner, a dead human body shall be disinterred.

F. g. If none of the persons listed in subsection D is willing or financially capable of providing for the cremation or embalming of a dead human body, the public fiduciary or other person who is designated by the county in which a death occurs to handle funeral arrangements may order the cremation or embalming.

G. h. A funeral establishment, an employee or agent of a funeral establishment or a licensee shall exercise due diligence to obtain the consent required pursuant to this section from the proper authorizing agent. It is an affirmative defense to any action or claim brought against a crematory, cemetery or funeral establishment relating to the disposition of a dead human body that the crematory, cemetery or funeral establishment relied in good faith on the direction of a person who claimed to be the authorizing agent in providing for the lawful disposition of a dead human body. The decision of a crematory, cemetery or funeral establishment to cremate or otherwise provide for the lawful disposition of a dead human body in reliance on the direction of a person who claims to be the authorizing agent is presumed to be in good faith unless the crematory, cemetery or funeral establishment has actual knowledge that the claim is false.

I. If the authorizing agent is not reasonably available or unable to act as authorizing agent, the person's right to be the authorizing agent passes as follows:

1. To another person or class of persons in the same degree of relationship to the decedent as the person who is not reasonably available or unable to make final arrangements for the decedent.

2. The next person or class of persons in the order of preference prescribed by subsection d of this section.

J. It is presumed that the authorizing agent is not reasonably available to act as authorizing agent if the crematory, cemetery or funeral establishment after exercising due diligence has been unable to contact the individual or if that person has been unwilling or unable to make final arrangements for the disposition of the decedent within fifteen days of the initial contact by the crematory, cemetery or funeral establishment. If a person in a prior class makes an initial contact with the crematory, cemetery or funeral establishment or becomes able prior to the final disposition of the decedent, that individual shall resume the right to serve as the authorizing agent.

K. Any dispute among any of the persons listed in subsection d of this section concerning their right to control the disposition, including cremation, of a decedent's remains shall be resolved by the parties to the dispute or by a court of competent jurisdiction. A crematory, cemetery or funeral establishment shall not be liable for refusing to accept the decedent's remains or inter, cremate or otherwise dispose of a decedent's remains until it receives a court order or other suitable confirmation that the dispute has been resolved or settled. A crematory, cemetery or funeral establishment may bring an action in a court of competent jurisdiction in order to expedite the resolution of a dispute among the parties listed in subsection D of this section.

L. During a person's life, the person's family members that are listed in subsection D of this section may sign a waiver of decision making that waives their rights under this section relating to the disposition of the person's body when the person dies.

M. For the purposes of this section, "reasonably available" means able to be contacted by the crematory, cemetery or funeral establishment without undue effort and willing to act within fifteen days of the initial contact by the crematory, cemetery or funeral establishment. END_STATUTE