40 KAR 2:145reg. Funeral planning declaration form

      Section 1. Funeral Planning Declaration. The Funeral Planning Declaration, Form FPD-1, required by KRS 367.93101(3), shall contain the following information:

      (1) The date the declaration is made;

      (2) The name of the declarant;

      (3) A statement providing that the declarant shall be at least eighteen (18) years of age and of sound mind;

      (4) A statement providing that the declarant willingly and voluntarily makes known the declarant’s instructions concerning funeral services, funeral and cemetery merchandise, ceremonies, and the disposition of the declarant’s remains after the declarant’s death;

      (5) A statement that by executing the declaration any previous declaration is revoked;

      (6) Statements informing the declarant of the following concerning a designee:

      (a) A designee is an individual designated and directed by the terms of the declaration to carry out the declarant’s funeral plan or make arrangements concerning disposition of the declarant's remains, funeral services, cemetery merchandise, funeral merchandise, or ceremonies;

      (b) If the declarant does not designate a designee in the declaration, the declarant shall provide instructions concerning funeral services, ceremonies, and the disposition of the declarant’s remains;

      (c) A person is not considered to be entitled to any part of the declarant’s estate solely by virtue of being designated in the declaration to serve as the declarant’s designee;

      (d) The declarant’s designee shall not be a provider of funeral or cemetery services, or responsible for any aspect of disposition of the declarant’s remains, or associated with any entity responsible for providing funeral or cemetery services or disposing of the declarant’s remains, unless the designee is related to the declarant by birth, marriage, or adoption;

      (e) A designee shall not be a witness to the declaration; and

      (f) If the designee or alternate designee fail to assume an obligation set forth in the Funeral Planning Declaration, Form FPD-1, within five (5) days of notification of the declarant’s death, the authority to make arrangements shall devolve pursuant to the terms of the Funeral Planning Declaration, Form FPD-1, or KRS 367.93117;

      (7) If the declarant elects, a statement identifying the name of a designee who shall carry out the instructions that are set forth in the declaration;

      (8) If the declarant elects to name an alternate designee, a statement identifying the name of an alternate designee if the designee is unwilling or unable to act;

      (9) If the declarant elects to not select a designee, a statement that the declarant elects to not select a designee and that the declarant directs that the instructions listed in the declaration for funeral services, ceremonies, and the disposition of the declarant’s remains be followed;

      (10) Instructions for actions to be taken after the declarant’s death, indicating by initials or marks beside each instruction selected by the declarant, from the following:

      (a) Concerning disposition of the declarant’s body, one (1) of the following:

      1. The declarant directs that the declarant’s body be buried and, if so, where;

      2. The declarant directs that the declarant’s cremated remains be disposed of by one (1) of the following methods, or, if no method of disposition is selected, the declarant leaves the decision to the designee:

      a. By placing the cremated remains in a grave, crypt, or niche and, if so, where;

      b. By scattering them in a scattering area; or

      c. On private property with the consent of the owner;

      3. The declarant directs that the declarant’s body be entombed and, if so, where;

      4. The declarant directs that the declarant’s body be donated as an anatomical gift pursuant to KRS 311.1911, et. seq., if the declarant has not selected another method for donation of the declarant’s body; or

      5. The declarant intentionally makes no decision concerning the disposition of the declarant’s body and leaves the decision to the designee;

      (b) Concerning arrangements, any of the following selected by the declarant:

      1. The declarant directs that funeral services be obtained and, if so, from whom, or, if no person from whom to obtain funeral services is selected, then the designee may decide;

      2. The declarant directs that funeral and ceremonial arrangements are to be made and, if so, providing instructions regarding the funeral and ceremonial arrangements;

      3. The declarant directs the selection of a grave memorial, monument, or marker, and, if so, providing instructions regarding the grave memorial, monument, or marker;

      4. The declarant directs the selection of funeral and cemetery merchandise and other property for the disposition of the declarant’s remains, funeral, or other ceremonial arrangements, and, if so, providing instructions regarding the funeral and cemetery merchandise and other property for the disposition of the declarant’s remains, funeral, or other ceremonial arrangements; or

      5. The declarant directs that the designee make all arrangements concerning ceremonies and other funeral or burial services;

      (c) Any additional instructions requested by the declarant; and

      (d) A statement that the declarant directs that the declarant’s designee make alternate arrangements to the best of the designee’s ability if it is impossible to make an arrangement specified in the Funeral Planning Declaration, Form FPD-1, because:

      1. A funeral home or other service or merchandise provider is out of business, impossible to locate, or otherwise unable to provide the specified service; or

      2. The specified arrangement is impossible, illegal, or exceeds the funds available or is inconsistent with the terms of the pre-arranged funeral or cemetery contract;

      (11) A statement that it is the declarant’s intention that the declarant’s Funeral Planning Declaration, Form FPD-1, be honored by the declarant’s family and others as the final expression of the declarant’s intentions concerning the declarant’s funeral and the disposition of the declarant’s body after the declarant’s death, and that the declarant understands the full import of this declaration;

      (12) Concerning execution of the Funeral Planning Declaration, Form FPD-1:

      (a) The signature of the declarant or another person in the declarant’s presence and at the declarant’s direction, the signature date, and the city, county, and state of the declarant’s residence; and

      (b) If applicable, the printed name of the person who signed at the declarant’s direction;

      (13) The signatures of two (2) witnesses, printed name, and date of signature of each witness, immediately following a statement that the witness believes the declarant to be of sound mind and to have willfully and voluntarily executed the Funeral Planning Declaration, Form FPD-1, that the witness did not sign the declarant’s signature or at the direction of the declarant, that the witness is not a parent, spouse, child, or designee of the declarant, that the witness is not entitled to any part of the declarant’s estate, that the declarant signed the declaration in the presence of the witness, and that the witness is competent and at least eighteen (18) years of age; and

      (14) An acknowledgement before a notary public or other person authorized to administer oaths, including the signature and title of the notary public or other person authorized to administer oaths, and the date of the signature, immediately following a statement that the declarant appeared before the notary public or other person authorized to administer oaths and acknowledged that the declarant voluntarily dated and signed the Funeral Planning Declaration, Form FPD-1, or directed the Funeral Planning Declaration, Form FPD-1, to be signed and dated in the declarant’s presence, and the date of the acknowledgement.

 

      Section 2. Incorporation by Reference. (1) "Funeral Planning Declaration", Form FPD-1, 07-16, is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Office of the Attorney General, Office of Consumer Protection, 1024 Capital Center Drive, Suite 200, Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.

 

ANDY BESHEAR, Attorney General

      APPROVED BY AGENCY: July 15, 2016

      FILED WITH LRC: July 15, 2016 at 11 a.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on August 23, 2016, at 10:00 a.m., Eastern Time, at the Kentucky Attorney General’s Office of Consumer Protection, 1024 Capital Center Drive, Suite 200, Frankfort Kentucky 40601. Individuals interested in being heard at this hearing shall notify this agency in writing by August 16, 2016, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until 11:59 p.m., Eastern Time, on August 31, 2016. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Kevin R. Winstead, Assistant Attorney General, Kentucky Attorney General’s Office of Consumer Protection, 1024 Capital Center Drive, Suite 200, Frankfort, Kentucky 40601, phone [phone], fax [phone], email address [e-mail].

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact person: Kevin R. Winstead

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation establishes the funeral planning declaration form by which a person may set forth his or her preferences regarding the manner of disposition of his or her remains and instructions regarding the related services, merchandise, and arrangements, which is authorized by KRS 367.93101(3) and governed by KRS 367.93101 to KRS 367.93121 as enacted by Senate Bill 103 (2016 Ky. Acts ch. 59).

      (b) The necessity of this administrative regulation: This regulation is necessary for the efficient and uniform application of the requirements of KRS 367.93101 to KRS 367.93121 regarding funeral planning declarations. KRS 367.93101(3) provides that a declaration is a funeral planning declaration setting forth a declarant's preferences regarding the manner of disposition of the declarant's remains and in a form prescribed by administrative regulation promulgated by the Office of the Attorney General.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation promulgates the funeral planning declaration form by which a person may set forth his or her preferences regarding the manner of disposition of his or her remains and instructions regarding the related services, merchandise, and arrangements. The form conforms to the content, execution, and other requirements of KRS 367.93101 to .93121.

      1. KRS 367.93101 defines certain terms. The statute establishes that a declaration shall be in a form prescribed in an administrative regulation promulgated by the Attorney General, and establishes certain duties of a designee.

      2. KRS 367.93103 requires that a funeral planning declaration be voluntary, written, signed by the declarant or another person at the declarant’s direction and in the declarant’s presence, dated, signed before competent witnesses, and acknowledged before a notary public or other person authorized to administer oaths. The statute requires that the declarant be of sound mind and at least 18 years old. The statute allows a declarant to appoint a designee to carry out the terms of the declaration, and limits who may serve as a designee and as a witness to the execution of the declaration.

      3. KRS 367.93105 provides that a declaration may specify the declarant’s preferences concerning the disposition of the declarant’s remains, the person who may direct the disposition of the declarant’s remains and the ceremonial arrangements, the person who may provide funeral services, specific directions about funeral services and ceremonial arrangements, the funeral and cemetery merchandise, and disinterment.

      4. KRS 367.93107 provides that the most recent declaration prevails and the invalidity of a specific direction shall not affect the validity of the declaration.

      5. KRS 367.93109 establishes immunity from liability for good-faith reliance on a declaration, and sets forth presumptions, absent to any actual contrary knowledge, that a declaration was validly executed and has not been revoked and that the declarant was competent at the time the declaration was executed. The statute also provides that directions in a declaration are binding as if the declarant were alive and competent.

      6. KRS 367.93111 provides that a declaration remains effective until it is revoked in writing by the declarant and the revocation is delivered to the designee or the person to whom the declaration was given.

      7. KRS 367.93115 directs that if a designee or alternate designee does not assume his or her obligations under the declaration within 5 days of notification of the declarant’s death, then the authority to make arrangements devolves pursuant to the terms of the declaration or KRS 367.117.

      8. KRS 367.93117 establishes the order of authority for the right to control the disposition of a decedent’s body and make funeral, burial, and other ceremonial arrangements.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will assist in the effective administration of KRS 367.93101 to KRS 367.93121, by establishing a funeral planning declaration form that a declarant may use to set forth his or her preferences regarding the disposition of his or remains.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

      (a) How the amendment will change this existing administrative regulation: Not applicable because this is a new administrative regulation.

      (b) The necessity of the amendment to this administrative regulation: Not applicable because this is a new administrative regulation.

      (c) How the amendment conforms to the content of the authorizing statutes: Not applicable because this is a new administrative regulation.

      (d) How the amendment will assist in the effective administration of the statutes: Not applicable because this is a new administrative regulation.

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation affects:

      1. An unknown number of individuals who may desire to establish, before their deaths, their preferences regarding the disposition of their remains.

      2. An unknown number of individuals who may be designated as a designee in a declaration.

      3. An unknown number of persons or business entities that perform services related to the disposition of human remains, including funeral homes, crematories, and cemeteries. There are currently 33 crematory authorities licensed with the Attorney General, over 270 cemetery companies registered with the Attorney General, over 460 pre-need burial contract sellers licensed with the Attorney General, and over 510 funeral homes licensed with the Kentucky Board of Embalmers and Funeral Directors.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: The regulated entities identified in question (3) will have to take the following actions to comply with this administrative regulation:

      1. Except as provided by law, accept a valid funeral planning declaration form regarding the disposition of the declarant’s remains and the related services, merchandise, and arrangements, and comply with the directions stated in a funeral planning declaration form.

      2. Use the funeral planning declaration form created by this administrative regulation if they provide services or assistance to a declarant in establishing the declarant’s preferences and directions stated in a declaration.

      3. On and after July 15, 2016, use the funeral planning declaration form if a declarant desires to pre-authorize her or her cremation. The amendments by Senate Bill 103 to the cremation statutes in KRS 367.97501 to .97537, effective July 15, 2016, deleted the preneed cremation authorization form as a method for a person to pre-authorize their cremation, and authorized the declaration as the method to pre-authorize a cremation.

      4. For each cremation that is pre-authorized by a funeral planning declaration form, the crematory authority shall attach the original of the declaration form to the cremation authorization form, and maintain the form for a period of time. (This is a requirement of the cremation forms regulation, 40 KAR 2:150, and KRS 367.97504(6).)

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): At ten cents per page, the cost to print the funeral planning declaration form is estimated to be $0.30 per copy. The estimated total printing cost is unknown because it depends on the number of copies printed.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): By using the funeral planning declaration form prescribed by this administrative regulation, an individual will be able to execute a funeral planning declaration form that sets forth his or her preferences regarding the disposition of his or her remains, and persons or business entities may provide services or assistance to a declarant in establishing the declarant’s preferences and directions stated in a declaration. Additionally, a crematory authority, licensed funeral director, or cemetery acting pursuant to the terms of a declaration shall not be held liable for good-faith reliance on representations made in a valid declaration. Further, for cremations pre-authorized by a declaration, a crematory authority will be able to conduct cremations and accept bodies for cremation based on the declaration.

      (5) Provide an estimate of how much it will cost to implement this administrative regulation:

      (a) Initially: None.

      (b) On a continuing basis: None.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: General fund appropriations and agency receipts.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change, if it is an amendment: None expected at this time.

      (8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees: The administrative regulation does not establish or increase any fees.

      (9) TIERING: Tiering is not applied in this administrative regulation because the administrative regulation does not disproportionately impact certain classes of regulated entities and the requirements of the statutes apply uniformly to any regulated entity or other person operating in the Commonwealth of Kentucky.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      (1). What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Office of the Attorney General will be impacted by this administrative regulation.

      (2). Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 367.93101, .93101(3), .93103, .93105, .93107, .93109, .93111, .93113, .93115, and .93117.

      (3). Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? None.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? None.

      (c) How much will it cost to administer this program for the first year? None.

      (d) How much will it cost to administer this program for subsequent years? None.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation:

Notation

      RELATES TO: KRS 367.93101, 367.93105, 367.93107, 367.93109, 367.93111, 367.93113, 367.93115, 367.93117, 367.93121, 367.97501, 367.97514, 367.97524, 367.97527

      STATUTORY AUTHORITY: KRS 367.93101(3)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 367.93101(3) requires the Office of the Attorney General to promulgate administrative regulations to prescribe a funeral planning declaration form. This administrative regulation prescribes the funeral planning declaration form identified in KRS 367.93101(3) and described in KRS 367.93101 to 367.93121, by which an individual declarant may set forth the declarant's preferences regarding the manner of disposition of the declarant's remains.