32-1365.02. Authorizing agents; consent for cremation, disinterment or embalming; definition

A. Except as provided in section 32-1365.01 and in subsection E 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 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 order of preference is the same as provided in section 36-831. If there is more than one member in a category listed in section 36-831 entitled to serve as the authorizing agent, final arrangements may be made by any member of that category unless that member knows of an objection by another member of the category. If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.

E. 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. If none of the persons listed in section 36-831 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. 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.

H. If the authorizing agent is not reasonably available or unable to act as the authorizing agent, the person's right to be the authorizing agent shall pass to the next person or category of persons in the order of preference prescribed in section 36-831.

I. 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 after the initial contact by the crematory, cemetery or funeral establishment. If a person in a prior category makes an initial contact with the crematory, cemetery or funeral establishment or becomes able before the final disposition of the decedent, that person resumes that person's right to serve as the authorizing agent.

J. Any dispute among any of the persons listed in section 36-831, subsection A concerning the 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 in order to expedite the resolution of a dispute among the parties. 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 section 36-831, subsection A.

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