Delaware General Assembly

AN ACT TO AMEND TITLE 12 OF THE DELAWARE CODE TO ESTABLISH THE AUTHORITY TO DIRECT THE DISPOSITION OF A PERSON'S LAST REMAINS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

WHEREAS, a competent adult individual has the right and power to direct the disposition of his or her remains after death and should be protected from interested persons who may try to impose their wishes regarding such disposition contrary to the deceased’s desires; and

WHEREAS, a statute that determines priority of individuals to direct the disposition of a decedent’s remains is necessary if the decedent fails to direct such disposition or if a dispute arises between interested persons regarding such disposition; and

WHEREAS, the right to direct the disposition of one’s remains needs to be stated in writing to better protect a third party who relies in good faith on such decisions.

Section 1. Amend Chapter 2, Title 12 of the Delaware Code to provide for a new Subchapter III to read as follows:

(1) ‘Adult’ means a natural person eighteen years of age or older.

(2) ‘Declarant’ means a competent adult who signs a declaration pursuant to the provisions of this article.

(3) ‘Declaration Instrument’ means a written instrument, signed by a declarant, governing the disposition of the declarant’s last remains and the ceremonies planned after a declarant’s death, including a document governing the disposition of last remains under this Title. Such a declaration may be made within a prepaid funeral, burial, or cremation contract with a mortuary or crematorium.

(4) ‘Interested Person’ means the deceased’s spouse, parent, adult child, sibling, grandchild, and other person designated in a declaration instrument.

(5) ‘Last Remains’ means the deceased’s body or cremains after death.

(6) ‘Reasonable under the Circumstances’, applied to the declarant’s instructions, means appropriate in relation to the declarant’s finances, cultural or family customs, and religious or spiritual beliefs. ‘Reasonable under the Circumstances’ implies consideration of factors that include, but are not limited to, a prepaid funeral, burial or cremation plan of the declarant; the size of the declarant’s estate; the declarant’s cultural or family customs; the declarant’s religious or spiritual beliefs; and the known or reasonably ascertainable creditors of the declarant.

(7) (a) ‘Third Party’ means a person:

(1) who is requested by a declaration instrument to act in good faith in reliance upon such instrument;

(2) who is delegated discretion over ceremonial or dispositional arrangements in a declaration instrument under § 264; or

(3) who is delegated discretion over ceremonial or dispositional arrangements in a declaration instrument.

(b) ‘Third Party’ includes, but is not limited to, a funeral director, mortician, mortuary, crematorium, or cemetery.

(8) ‘Unreasonable’ means an act that is clearly unreasonable, pursuant to the definition of ‘Reasonable under the Circumstances’ under subsection (6) of this Section.

§ 261. Limitations.

This subchapter shall not be construed to:

(a) invalidate a declaration instrument or will, codicil, trust, power of appointment or power of attorney;

(b) invalidate any act of an agent, guardian, or conservator;

(c) affect any claim, right or remedy that accrued prior to the effective date of this article;

(d) authorize or encourage acts that violate the constitution, statutes, rules, case law or public policy of Delaware or the United States;

(e) abridge contracts;

(f) modify the standards, ethics or protocols of the practice of medicine;

(g) compel or authorize a health care provider or health care facility, to administer medical treatment that is medically inappropriate or contrary to federal or other Delaware law; or

(h) permit or authorize euthanasia or an affirmative or deliberate act to end a person’s life.

§ 262. Declaration of Disposition of Last Remains.

(1) the disposition to be made of the declarant’s last remains;

(2) who may direct the disposition of the declarant’s last remains;

(3) the ceremonial arrangements to be performed after the declarant’s death;

(4) who may direct the ceremonial arrangement after the declarant’s death; or

(5) the rights, limitations, immunities, and other terms of third parties dealing with the declaration instrument.

(a) A third party who acts in good faith reliance on a declaration instrument that is legally executed shall not be subject to civil liability to any greater extent than if the third party were dealing directly with the declarant as a fully competent and living person. Such third party shall not be subject to criminal liability or regulatory sanction for such reliance.

(b) A third party who deals with a declaration instrument may presume in the absence of actual knowledge to the contrary:

(1) that the declaration instrument was validly executed; and

(2) that the declarant was competent at the time the instrument was executed.

(c) A third party who reasonably relies on a declaration instrument shall not be civilly or criminally liable for the proper application of property delivered or surrendered to comply with the declarant’s instructions in the declaration instrument.

(d) The directions of a declarant expressed in a declaration instrument shall be binding on all persons as if the declarant were alive and competent.

(e) A third party who has reasonable cause to question the authenticity or validity of a declaration instrument may promptly and reasonably seek additional information from the person proffering such declaration or from other involved persons. A third party may require exhibition of the original declaration instrument or a notarized copy.

(f) A third party seeking to fulfill a declarant’s intent regarding disposition of last remains or ceremonial arrangements may disregard such intent if such intent is unreasonable under the circumstances.

§ 264. Right to Dispose of Remains.

(a) The right to control disposition of the last remains or ceremonial arrangements of a decedent vests in and devolves upon the following persons, at the time of the decedent’s death, in the following order:

(1) the decedent if acting through a declaration instrument;

(2) either the appointed personal representative or special administrator of the decedent’s estate if such person has been appointed; or the nominee for appointment as personal representative under the decedent’s will if a personal representative or special administrator has not been appointed;

(3) the surviving spouse of the decedent, if not legally separated from the decedent;

(4) a majority of the surviving adult children of the decedent whose whereabouts are reasonably ascertainable;

(5) the surviving parents or legal guardians of the decent whose whereabouts are reasonably ascertainable;

(6) a majority of the surviving adult siblings of the decedent whose whereabouts are reasonably ascertainable; and

(7) the public administrator responsible for the decedent’s estate.

(b) To exercise the right to control final disposition pursuant to paragraph (5) of this Section, the majority of parents and guardians shall act in writing.

(c) If the assent of multiple persons under paragraphs (4), (5), or (6) of this Section cannot be obtained, a final judgment of the Chancery Court of the county of the decedent’s residence shall be required to exercise the right to control final disposition. Such final judgment shall be consistent with the decedent’s last wishes to the extent they are reasonable under the circumstances.

§ 265. Declaration of Disposition of Last Remains: Form.

The following declaration of disposition of last remains must be substantially in the following form:

DECLARATION OF DISPOSITION OF LAST REMAINS

I, __________________________ (Name of Declarant), being of sound mind and lawful age, hereby revoke all prior declarations, wills, codicils, trusts, powers of appointment, and powers of attorney regarding the disposition of my last remains, and I declare and direct that after my death the following provisions be taken:

1. If permitted by law, my body shall be (Initial ONE choice):

____________ Buried. I direct that my body be buried at ___________________________________________.

____________ Cremated. I direct that my cremated remains be disposed of as follows:____________________

____________________________________________________________________________________________.

___________ Entombed. I direct that my body be entombed at _________________________________________.

___________ Other. I direct that my body be disposed of as follows: ____________________________________

____________________________________________________________________________________________.

___________ Disposed of as ________________________ (Name of Designee) shall decide in writing. If _______
_________________________ is unwilling or unable to act, I nominate ___________________________________

as my alternate designee.

___________ I request __________________________ (Name of designee) make all arrangements for any ceremonies, consistent with my directions set forth in this declaration. If ________________________ is unwilling or unable to act, I nominate _____________________________ as my alternate designee.

___________ Funeral. I request the following arrangements for my funeral:_________________________________

______________________________________________________________________________________________.

__________ Memorial Service. I request the following arrangements for my memorial service:__________________

______________________________________________________________________________________________.

3. Special Instructions. In addition to the instructions above, I request (on the following lines you may make special requests regarding ceremonies or lack of ceremonies): _________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________.

Note: Those persons or entities asked to carry out a declarant’s intent regarding disposition of last remains and ceremonial arrangements need do so only if the declarant’s intent is reasonable under the circumstances. ‘Reasonable under the Circumstances’ may take into consideration factors such as a known prepaid funeral, burial, or cremation plan of the declarant, the size of the declarant’s estate, cultural or family customs, the declarant’s religious or spiritual beliefs, the known or reasonably ascertainable creditors of the declarant, and the declarant’s financial situation prior to death.

I may revoke or amend this declaration in writing at any time. I agree that a third party who receives a copy of this declaration may act according to it. Revocation of this declaration is not effective as to a third party until the third party learns of my revocation. My estate shall indemnify any third party for costs incurred as a result of claims that arise against the third party because of good-faith reliance on this declaration.

I execute this declaration as my free and voluntary act, on _____________________________________________.

(Declarant) _____________________________________________.

The following section regarding organ and tissue donation is optional. To make a donation, initial the option you select and sign below.

In the hope that I might help others, I hereby make an anatomical gift, to be effective upon my death, of:

A. ______________ Any needed organs/tissues.

B. ______________ The following organs/tissues:

_______________________________________________________________________.

Donor signature:__________________________________________________________________________.

Notarization Optional:

State of Delaware

County of _____________:

Acknowledged before me by _______________________________________________, Declarant, on

_____________________________,______. My commission expires:

(Seal) Notary Public__________________________________________________.

§ 266. Declaration: Other Points of Form.

(a) The form set forth in § 265 of this Section is not exclusive, and a person may use another form of declaration instrument if the wording of the form complies substantially with § 265 of this Section, the form is properly completed, and the form is in writing, dated, and signed by the declarant.

(b) A declaration instrument may be acknowledged, but lack of acknowledgment shall not render the declaration ineffective.

(c) This article shall apply to declaration instruments executed or exercised in Delaware and to declaration instruments signed or exercised by a person who is a resident of Delaware when such instrument is signed or exercised.

(d) The provisions of the most recent declaration instrument shall control over any other document regarding the disposition of the last remains.

§ 267. Declaration: Revocation Generally.

A declaration may be revoked by the declarant in writing or by burning, tearing, canceling, obliterating, or destroying the declaration instrument with the intent to revoke such instrument.

§ 268. Declaration: Revocation by Divorce.

(a) Unless otherwise stated in a declaration instrument, it shall be presumed that the declarant intends to have his or her declaration instrument executed pursuant to this subchapter and recognized to the fullest extent possible by other states.

(b) Unless otherwise provided in the declaration instrument, a declaration instrument or similar instrument executed in another state that complies with the requirements of this subchapter may, in good faith, be relied upon by a third party in this state if an action requested by such declarant does not violate any law of the federal government, Delaware, or a political subdivision.”.

Approved June 29, 2004