H.B. 130 Enrolled

1

FUNERAL SERVICES LICENSING ACT
2 AMENDMENTS
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Kay L. McIff
6 Senate Sponsor: Jon J. Greiner
7
8 LONG TITLE
9 General Description:
10 This bill modifies provisions of the Funeral Services Licensing Act regarding licensure
11 classifications, the composition of the Board of Funeral Service, qualifications for
12 licensure, the supervision of funeral service interns, the determination of the disposition
13 of a deceased person, preneed funeral arrangements, including required trust accounts,
14 and unlawful and unprofessional conduct by funeral service establishments and their
15 employees.
16 Highlighted Provisions:
17 This bill:
18 . modifies the definition of a funeral service establishment in the Funeral Services
19 Licensing Act to include the furnishing of services, merchandise, and products
20 purchased under a preneed funeral arrangement;
21 . modifies the composition of the Board of Funeral Service by increasing the number
22 of funeral service directors serving on the board from three to four and eliminating
23 the owner or officer of an endowment care cemetery member;
24 . eliminates the license classification of preneed funeral arrangement provider by
25 combining it with the funeral service establishment license classification;
26 . modifies qualifications for licensure as a funeral service director, funeral service
27 establishment, preneed funeral arrangement sales agent, and funeral service intern
28 and changes the current designation of "funeral service apprentice" to "funeral
29 service intern";

30 . provides for the conditional continuing licensure of a funeral service establishment
31 upon the death or termination from employment of an establishment's funeral
32 service director;
33 . modifies the licensure by endorsement provisions;
34 . modifies the unlawful and unprofessional conduct provisions of the act;
35 . modifies provisions related to the right and duty to control the disposition of a
36 deceased person by surviving relatives or other individuals;
37 . provides for forfeiture of the right of disposition under specified circumstances;
38 . provides for the resolution of disputes on the right of disposition of a decedent by a
39 probate court upon petitioning by relatives of the decedent or a funeral director who
40 has custody of the decedent's remains;
41 . provides a funeral service establishment and funeral service director with immunity
42 from civil and criminal liability and disciplinary action in carrying out the
43 disposition of a decedent's remains;
44 . modifies provisions related to preneed funeral arrangement contracts and associated
45 trust agreements; and
46 . makes certain technical changes.
47 Monies Appropriated in this Bill:
48 None
49 Other Special Clauses:
50 None
51 Utah Code Sections Affected:
52 AMENDS:
53 26-4-16, as last amended by Chapter 49, Laws of Utah 2003
54 58-9-102, as enacted by Chapter 49, Laws of Utah 2003
55 58-9-201, as enacted by Chapter 49, Laws of Utah 2003
56 58-9-301, as enacted by Chapter 49, Laws of Utah 2003
57 58-9-302, as enacted by Chapter 49, Laws of Utah 2003

58 58-9-303, as enacted by Chapter 49, Laws of Utah 2003
59 58-9-305, as enacted by Chapter 49, Laws of Utah 2003
60 58-9-306, as enacted by Chapter 49, Laws of Utah 2003
61 58-9-307, as enacted by Chapter 49, Laws of Utah 2003
62 58-9-501, as enacted by Chapter 49, Laws of Utah 2003
63 58-9-502, as enacted by Chapter 49, Laws of Utah 2003
64 58-9-503, as enacted by Chapter 49, Laws of Utah 2003
65 58-9-602, as enacted by Chapter 49, Laws of Utah 2003
66 58-9-701, as enacted by Chapter 49, Laws of Utah 2003
67 58-9-703, as enacted by Chapter 49, Laws of Utah 2003
68 58-9-706, as enacted by Chapter 49, Laws of Utah 2003
69 58-9-707, as enacted by Chapter 49, Laws of Utah 2003
70 ENACTS:
71 58-9-605, Utah Code Annotated 1953
72 58-9-606, Utah Code Annotated 1953
73 REPEALS AND REENACTS:
74 58-9-603, as enacted by Chapter 49, Laws of Utah 2003
75
76 Be it enacted by the Legislature of the state of Utah:
77 Section 1. Section 26-4-16 is amended to read:
78 26-4-16. Release of body for funeral preparations.
79 (1) (a) Where a body is held for investigation or autopsy under [the provisions of] this
80 chapter or for [any] a medical investigation permitted by law, the body shall, if requested by the
81 person given priority under Section 58-9-602 , be released for funeral preparations no later than
82 24 hours after the arrival at the office of the medical examiner or regional medical facility.
83 (b) An extension may be ordered only by a district court.
84 (2) The right and duty to control the disposition of a deceased person [shall be] is
85 governed by Sections 58-9-601 through [ 58-9-604 ] 58-9-606 .

86 Section 2. Section 58-9-102 is amended to read:
87 58-9-102. Definitions.
88 In addition to the definitions in Section 58-1-102 , as used in this chapter:
89 (1) "Beneficiary" means the individual who, at the time of the beneficiary's death, is to
90 receive the benefit of the property and services purchased under a preneed funeral arrangement.
91 (2) "Board" means the Board of Funeral Service created in Section 58-9-201 .
92 (3) "Buyer" means [any] a person who purchases a preneed funeral arrangement.
93 (4) "Calcination" means a process in which a dead human body is reduced by intense
94 heat to a residue that is not as substantive as the residue that follows cremation.
95 (5) "Cremation" means the reduction of a dead human body by direct flame to residue
96 that includes bone fragments.
97 (6) "Direct disposition" means the disposition of a dead human body:
98 (a) as quickly as law allows;
99 (b) without preparation of the body by embalming; and
100 (c) without [any] an attendant funeral service or graveside service.
101 (7) "Disposition" means the final disposal of a dead human body by:
102 (a) earth interment;
103 (b) above ground burial;
104 (c) cremation;
105 (d) calcination;
106 (e) burial at sea;
107 (f) delivery to a medical institution; or
108 (g) other lawful means.
109 (8) "Embalming" means replacing body fluids in a dead human body with preserving
110 and disinfecting chemicals.
111 [(9) "Funeral establishment" means a place established for any of the following
112 purposes in connection with a dead human body:]
113 [(a) custody;]

114 [(b) shelter;]
115 [(c) care;]
116 [(d) preparation;]
117 [(e) disposition; or]
118 [(f) other services.]
119 [(10)] (9) (a) "Funeral merchandise" means any of the following into which a dead
120 human body is placed in connection with the transportation or disposition of the body:
121 (i) [vaults] a vault;
122 (ii) [caskets] a casket; or
123 (iii) other personal property.
124 (b) "Funeral merchandise" does not include:
125 (i) a mausoleum [crypts] crypt;
126 (ii) [interment receptacles] an interment receptacle preset in a cemetery; or
127 (iii) a columbarium [niches] niche.
128 [(11)] (10) "Funeral service" means [any] a service, rite, or ceremony performed:
129 (a) with respect to the death of a human; and
130 (b) with the body of the deceased present.
131 [(13)] (11) "Funeral service director" means an individual licensed under this chapter
132 who may engage in all lawful professional activities regulated and defined under the practice of
133 funeral service.
134 (12) (a) "Funeral service establishment" means a place of business at a specific street
135 address or location licensed under this chapter that is devoted to:
136 (i) the embalming, care, custody, shelter, preparation for burial, and final disposition of
137 dead human bodies; and
138 (ii) the furnishing of services, merchandise, and products purchased from the
139 establishment as a preneed provider under a preneed funeral arrangement.
140 (b) "Funeral service establishment" includes:
141 (i) all portions of the business premises and all tools, instruments, and supplies used in

142 the preparation and embalming of dead human bodies for burial, cremation, and final
143 disposition as defined by division rule; and
144 (ii) a facility used by the business in which funeral services may be conducted.
145 [(12)] (13) "Funeral service [apprentice] intern" means an individual licensed under
146 this chapter who is permitted to:
147 (a) assist a funeral service director in the embalming or other preparation of a dead
148 human body for [deposition] disposition;
149 (b) assist a funeral service director in the cremation, calcination, or pulverization of a
150 dead human body or its remains; and
151 (c) perform other funeral service activities under the supervision of a funeral service
152 director.
153 (14) "Graveside service" means a funeral service held at the location of disposition.
154 (15) "Memorial service" means [any] a service, rite, or ceremony performed:
155 (a) with respect to the death of a human; and
156 (b) without the body of the deceased present.
157 (16) "Practice of funeral service" means:
158 (a) supervising the receipt of custody and transportation of a dead human body to
159 prepare the body for:
160 (i) disposition; or
161 (ii) shipment to another location;
162 (b) entering into a contract with [any] a person to provide professional services
163 regulated under this chapter;
164 (c) embalming or otherwise preparing a dead human body for disposition;
165 (d) supervising the arrangement or conduct of [any of the following]:
166 (i) a funeral service;
167 (ii) a graveside service; or
168 (iii) a memorial service;
169 (e) cremation, calcination, or pulverization of a dead human body or the body's

170 remains;
171 (f) supervising the arrangement of:
172 (i) a disposition; or
173 (ii) a direct disposition;
174 (g) facilitating:
175 (i) a disposition; or
176 (ii) a direct disposition;
177 (h) supervising [sales] the sale of funeral merchandise by a funeral establishment;
178 (i) managing or otherwise being responsible for the practice of funeral service in a
179 licensed funeral service establishment;
180 (j) supervising the sale of a preneed funeral arrangement; and
181 (k) contracting with or employing individuals to sell a preneed funeral arrangement.
182 (17) (a) "Preneed funeral arrangement" means [any] a written or oral agreement sold in
183 advance of the death of the beneficiary under which a person agrees with a buyer to provide at
184 the death of the beneficiary any of the following as are typically provided in connection with a
185 disposition:
186 (i) goods;
187 (ii) services, including:
188 (A) embalming services; and
189 (B) funeral directing services;
190 (iii) real property; or
191 (iv) personal property, including:
192 (A) [caskets] a casket;
193 (B) [other] another primary [containers] container;
194 (C) a cremation or transportation [containers] container;
195 (D) an outer burial [containers] container;
196 (E) [vaults] a vault;
197 (F) a grave [liners] liner;

198 (G) funeral clothing and accessories;
199 (H) [monuments] a monument;
200 (I) a grave [markers] marker; and
201 (J) a cremation [urns] urn.
202 (b) "Preneed funeral arrangement" does not include a policy or product of life
203 insurance providing a death benefit cash payment upon the death of the beneficiary which is
204 not limited to providing the products or services described in Subsection (17)(a).
205 [(18) "Provider" means a licensed funeral establishment that furnishes or will furnish
206 the services or property purchased under a preneed funeral arrangement.]
207 [(19)] (18) "Pulverization" means a grinding process that reduces the residue of a
208 cremation or calcination into a powdery substance.
209 [(20)] (19) "Sales agent" means an individual licensed under this chapter as a preneed
210 funeral arrangement sales agent.
211 [(21)] (20) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-9-501 .
212 [(22)] (21) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-9-502 .
213 Section 3. Section 58-9-201 is amended to read:
214 58-9-201. Board.
215 (1) There is created the Board of Funeral Service consisting of:
216 (a) [three] four funeral service directors who own [or], have an ownership interest in,
217 or have management responsibilities for a funeral service establishment[, at least two of which
218 are preneed funeral arrangement providers];
219 (b) one preneed funeral arrangement sales agent, who does not have an ownership
220 interest in a funeral service establishment; and
221 [(c) one owner or officer of an endowment care cemetery; and]
222 [(d)] (c) two members from the general public who have no association with the
223 funeral service profession.
224 (2) The board shall be appointed and serve in accordance with Section 58-1-201 .
225 (3) (a) The duties and responsibilities of the board shall be in accordance with Sections

226 58-1-202 and 58-1-203 . [In addition, the]
227 (b) The board shall designate one of its members on a permanent or rotating basis to:
228 [(a)] (i) assist the division in reviewing complaints concerning the unlawful or
229 unprofessional conduct of a licensee; and
230 [(b)] (ii) advise the division in its investigation of these complaints.
231 (4) A board member who has, under Subsection (3), reviewed a complaint or advised
232 the division in its investigation may be disqualified from participating with the board when the
233 board serves as a presiding officer of an administrative proceeding concerning the complaint.
234 Section 4. Section 58-9-301 is amended to read:
235 58-9-301. Licensure required -- License classifications.
236 (1) A license is required to engage in the practice of funeral service, except as
237 specifically provided in Sections 58-1-307 and 58-9-305 .
238 (2) The division shall issue to a person who qualifies under this chapter a license in the
239 classification of:
240 (a) funeral service director;
241 (b) funeral service [apprentice] intern;
242 (c) funeral service establishment; or
243 [(d) preneed funeral arrangement provider; or]
244 [(e)] (d) preneed funeral arrangement sales agent.
245 Section 5. Section 58-9-302 is amended to read:
246 58-9-302. Qualifications for licensure.
247 (1) Each applicant for licensure as a funeral service director shall:
248 (a) submit an application in a form prescribed by the division;
249 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
250 (c) be of good moral character in that the applicant has not been convicted of:
251 (i) a first or second degree felony;
252 (ii) a misdemeanor involving moral turpitude; or
253 (iii) any other crime that when considered with the duties and responsibilities of a

254 funeral service director is considered by the division and the board to indicate that the best
255 interests of the public are not served by granting the applicant a license;
256 (d) have [completed] obtained a high school [education] diploma or its equivalent or a
257 higher education degree;
258 (e) have obtained an associate degree, or its equivalent, in mortuary science from a
259 school of funeral service accredited by the American Board of Funeral Service Education or
260 other accrediting body recognized by the U.S. Department of Education;
261 (f) have completed not less than 2,000 hours and 50 embalmings, over a period of not
262 less than one year, of satisfactory performance in training as a licensed funeral service
263 [apprentice] intern under the supervision of a licensed funeral service director; and
264 (g) [have successfully completed] obtain a passing score on examinations approved by
265 the division in collaboration with the board.
266 (2) Each applicant for licensure as a funeral service [apprentice] intern shall:
267 (a) submit an application in a form prescribed by the division;
268 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
269 (c) be of good moral character in that the applicant has not been convicted of:
270 (i) a first or second degree felony;
271 (ii) a misdemeanor involving moral turpitude; or
272 (iii) any other crime that when considered with the duties and responsibilities of a
273 funeral service [apprentice] intern is considered by the division and the board to indicate that
274 the best interests of the public are not served by granting the applicant a license;
275 (d) have [completed] obtained a high school [education] diploma or its equivalent or a
276 higher education degree; and
277 (e) [have successfully completed] obtain a passing score on an examination [testing the
278 applicant's knowledge of the law and rules made under this chapter] approved by the division
279 in collaboration with the board.
280 (3) Each applicant for licensure as a funeral service establishment and each funeral
281 service establishment licensee shall:

282 (a) submit an application in a form prescribed by the division;
283 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
284 (c) have in place [and]:
285 (i) an embalming room for preparing dead human bodies for burial or final disposition,
286 which may serve one or more facilities operated by the applicant;
287 (ii) a refrigeration room that maintains a temperature of not more than 40 degrees
288 fahrenheit for preserving dead human bodies prior to burial or final disposition, which may
289 serve one or more facilities operated by the applicant; and
290 (iii) maintain at all times a licensed funeral service director who is responsible for the
291 day-to-day operation of the funeral service establishment [as the sole proprietor, a managing
292 general partner, or an officer of a corporation or other business entity; and (d) if it is the
293 intention of] and who is personally available to perform the services for which the license is
294 required;
295 (d) affiliate with a licensed preneed funeral arrangement sales agent or funeral service
296 director if the funeral service establishment [to sell] sells preneed funeral arrangements[, file
297 with the division an application for a license to sell preneed funeral arrangements.];
298 [(4) Each applicant for licensure as a preneed funeral arrangement provider shall:]
299 [(a) submit an application in a form provided by the division;]
300 [(b) pay a fee as determined by the department under Section 63-38-3.2 ;]
301 [(c) be licensed in the state as a funeral service establishment;]
302 [(d) be free of activities or conduct which, when considered with the responsibilities of
303 a licensee and the public interest, is a threat to the public health, safety, or welfare;]
304 (e) file with the completed application a copy of each form of contract or agreement the
305 applicant will use in the sale of preneed funeral arrangements; and
306 (f) provide evidence of appropriate licensure with the Insurance Department if the
307 applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or
308 in part by an insurance policy or product to be sold by the provider or the provider's sales agent.
309 [(5)] (4) Each applicant for licensure as a preneed funeral arrangement sales agent

310 shall:
311 (a) submit an application in a form prescribed by the division;
312 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
313 (c) be of good moral character in that the applicant has not been convicted of:
314 (i) a first or second degree felony;
315 (ii) a misdemeanor involving moral turpitude; or
316 (iii) any other crime that when considered with the duties and responsibilities of a
317 preneed funeral sales agent is considered by the division and the board to indicate that the best
318 interests of the public are not served by granting the applicant a license;
319 [(d) be a high school graduate or have obtained a certificate of equivalency approved
320 by the division;]
321 (d) have obtained a high school diploma or its equivalent or a higher education degree;
322 (e) [pass an] have obtained a passing score on an examination approved by the division
323 in collaboration with the board;
324 (f) [provide evidence that the applicant will be associated] affiliate with a licensed
325 [preneed] funeral [arrangement provider upon issuance of a license under terms acceptable to
326 the division] service establishment; and
327 (g) provide evidence of appropriate licensure with the Insurance Department if the
328 applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or
329 in part by an insurance policy or product.
330 Section 6. Section 58-9-303 is amended to read:
331 58-9-303. Term of license -- Expiration -- Renewal.
332 (1) (a) The division shall issue each license under this chapter in accordance with a
333 two-year renewal cycle established by rule.
334 (b) The division may by rule extend or shorten a renewal cycle by as much as one year
335 to stagger the renewal cycles it administers.
336 (2) Notwithstanding Subsection (1), a person who has once held a license as a funeral
337 service [apprentice] intern and has not qualified for licensure as a funeral service director may

338 be issued a subsequent funeral service [apprentice] intern license for only one additional
339 two-year term upon the specific approval of the division in collaboration with the board.
340 (3) At the time of renewal, the funeral service director licensee shall show satisfactory
341 evidence of completion of continuing education as required under Section 58-9-304 .
342 (4) Each license automatically expires on the expiration date shown on the license
343 unless the licensee renews it in accordance with Section 58-1-308 .
344 (5) (a) Except as otherwise provided in Subsections (5)(b) and (c), the division may
345 take action against the license of a funeral service establishment that does not have a licensed
346 funeral service director.
347 (b) If a licensed funeral service director dies and leaves the funeral service
348 establishment as part of the assets of the funeral service director's estate:
349 (i) the personal representative of the funeral service director's estate may operate the
350 funeral service establishment under the license, or renewals of the license, for not more than
351 two years from the date of the funeral service director's death without meeting the
352 qualifications of an applicant and without having a licensed funeral service director; but
353 (ii) Subsection (5)(b)(i) does not allow an unlicensed person to perform a function that
354 requires performance by a funeral service director licensed under this chapter.
355 (c) If the funeral service director of a licensed funeral service establishment terminates
356 employment with the establishment, the establishment has 90 days to hire a new licensed
357 funeral service director before action may be taken against the license under Subsection (5)(a).
358 Section 7. Section 58-9-305 is amended to read:
359 58-9-305. Exemptions from licensure.
360 In addition to the exemptions from licensure in Section 58-1-307 , a person may engage
361 in the following acts included within the definition of the practice of funeral service, subject to
362 the stated circumstances and limitations, without being licensed under this chapter:
363 (1) transportation of a dead human body in accordance with other applicable state and
364 federal laws;
365 (2) ambulance or other emergency transportation of a dead human body;

366 (3) the sale of any of the following that is delivered to the buyer or the buyer's designee
367 within 90 days after the day of the sale:
368 (a) funeral merchandise;
369 (b) headstones; or
370 (c) other memorial merchandise;
371 (4) the performance of funeral, graveside, or memorial services by:
372 (a) a member of the clergy;
373 (b) a member of the decedent's family; or
374 (c) any other recognized individual;
375 (5) assisting a Utah licensed funeral service director regarding disasters or special
376 emergencies by individuals licensed in other states as funeral service directors or embalmers;
377 (6) activities of an unlicensed individual employed by a funeral service establishment
378 involving arrangement for a funeral service or the sale of funeral merchandise if the binding
379 contract is reviewed, approved, and signed in behalf of the funeral service establishment by a
380 licensed funeral service director; and
381 (7) nonprofessional tasks or activities which:
382 (a) do not require independent professional judgment [which]; and
383 (b) are required of persons employed by a funeral service establishment under the
384 supervision of a funeral service director.
385 Section 8. Section 58-9-306 is amended to read:
386 58-9-306. License by endorsement.
387 The division may issue a license by endorsement under this chapter to a person who
388 [holds a license to engage in the practice of funeral service from another state, jurisdiction, or
389 territory of the United States, if]:
390 [(1) the person's license is:]
391 [(a) active;]
392 [(b) in good standing; and]
393 [(c) free from disciplinary action; and]

394 [(2) the person:]
395 [(a) meets the requirements of Section 58-1-302 ;]
396 (1) provides documentation that the funeral service director's current licensure is
397 active, in good standing, and free from any disciplinary action;
398 (2) submits an application on a form provided by the division;
399 (3) pays a fee determined by the department;
400 [(b)] (4) is of good moral character in that the person has not been convicted of:
401 [(i)] (a) a first or second degree felony;
402 [(ii)] (b) a misdemeanor involving moral turpitude; or
403 [(iii)] (c) any other crime that when considered with the duties and responsibilities of
404 the license for which the person is applying is considered by the division and the board to
405 indicate that the best interests of the public are not served by granting the applicant a license;
406 [(c)] (5) has completed five years of lawful and active practice as a licensed funeral
407 service director and embalmer within the ten years immediately preceding the application for
408 licensure by endorsement;
409 [(d)] (6) has passed a national examination determined by the division; and
410 [(e)] (7) has [passed an examination on] demonstrated competency of the laws and the
411 rules of the state as determined by the division.
412 Section 9. Section 58-9-307 is amended to read:
413 58-9-307. Supervision of funeral service intern.
414 (1) A person seeking licensure as a funeral service [apprentice] intern shall submit as a
415 part of the application for a license:
416 (a) the name of the licensed funeral service director who has agreed to supervise all
417 duties performed by the applicant as an intern; and
418 (b) the name of the licensed funeral service establishment at which the training and
419 supervision shall take place.
420 (2) A licensed funeral service director may supervise only one licensed funeral service
421 [apprentice] intern at one time.

422 (3) (a) Within 30 days after the day on which the supervisor-supervisee relationship
423 between a licensed funeral service director and a licensed funeral service [apprentice] intern
424 terminates, the funeral service director shall furnish to the division a report of the performance
425 of the funeral service [apprentice] intern.
426 (b) The report shall be in form and content as prescribed by the division.
427 (4) (a) A licensed funeral service [apprentice may apply to] intern shall notify the
428 division [to request supervision by a different] of any change in the intern's supervising funeral
429 service director. [The application shall be made on a form prescribed by the division. A
430 change of supervisor requires approval of the division.]
431 (b) The supervising funeral service director shall submit to the division, in accordance
432 with Subsection (3), a report of the funeral service [apprentice's] intern's performance.
433 (5) The licensed funeral service director is responsible for supervision of all of the
434 duties and functions performed by the funeral service [apprentice] intern throughout the entire
435 internship period.
436 Section 10. Section 58-9-501 is amended to read:
437 58-9-501. Unlawful conduct.
438 "Unlawful conduct" includes:
439 (1) doing any of the following to prepare a dead human body for disposition unless
440 licensed as a funeral service director or a funeral service [apprentice] intern:
441 (a) embalming;
442 (b) calcinating;
443 (c) pulverizing;
444 (d) cremating; or
445 (e) using any method that invades a dead human body;
446 (2) using the title "funeral service director," "funeral service [apprentice] intern,"
447 "preneed funeral service sales agent," or "funeral service establishment" unless licensed under
448 this chapter;
449 (3) engaging in, providing, or agreeing to provide funeral arrangements to be provided

450 under a preneed funeral arrangement without first obtaining a license as a [preneed] funeral
451 [arrangement provider] service establishment under this chapter;
452 (4) engaging in selling, representing for sale, or in any other way offering to sell any
453 contract under which preneed funeral arrangements are to be provided without first obtaining a
454 license under this chapter as:
455 (a) a preneed funeral arrangement sales agent; or
456 (b) a funeral service director; and
457 [(5) selling or representing for sale any preneed funeral arrangement contract or
458 agreement:]
459 [(a) which has not been approved as to form and content by the division; and]
460 [(b) a current copy of which is not on file with the division; and]
461 [(6)] (5) failing to comply with Section 58-9-702 .
462 Section 11. Section 58-9-502 is amended to read:
463 58-9-502. Unprofessional conduct.
464 (1) "Unprofessional conduct" includes:
465 (a) the failure of a funeral service director to accurately document, report, and
466 supervise the activities of a funeral service [apprentice] intern;
467 (b) knowingly soliciting the sale of any funeral service or funeral merchandise for a
468 person whose death occurred or was imminent prior to the solicitation; [and]
469 (c) paying or offering to pay a commission or anything of value to secure deceased
470 human remains for a funeral service or disposition to:
471 (i) medical personnel;
472 (ii) a nursing home;
473 (iii) a nursing home employee;
474 (iv) a hospice;
475 (v) a hospice employee;
476 (vi) clergy;
477 (vii) a government official; or

478 (viii) any other third party[.]; and
479 (d) failure to provide the following current information to the division:
480 (i) a licensee's business address;
481 (ii) a licensee's primary residence;
482 (iii) a funeral service establishment's funeral service director; or
483 (iv) a supervising funeral service director's funeral service intern's name.
484 (2) "Unprofessional conduct" does not include:
485 (a) general advertising directed to the public at large; or
486 (b) responding to a notification of death from:
487 (i) medical personnel;
488 (ii) a nursing home;
489 (iii) a nursing home employee;
490 (iv) a hospice;
491 (v) a hospice employee;
492 (vi) clergy;
493 (vii) a government official; or
494 (viii) any authorized representative of the family of the deceased person.
495 Section 12. Section 58-9-503 is amended to read:
496 58-9-503. Penalty for unlawful conduct.
497 (1) [Any] A person who violates the unlawful conduct provisions defined in
498 Subsections 58-9-501 (1) through [(5)] (4) is guilty of a class A misdemeanor.
499 (2) [Any] A person who violates the unlawful conduct provision defined in Subsection
500 58-9-501 [(6)](5) may be prosecuted under Title 76, Chapter 6, Part 4, Theft.
501 Section 13. Section 58-9-602 is amended to read:
502 58-9-602. Determination of control of disposition.
503 The right and duty to control the disposition of a deceased person, including the
504 location, manner and conditions of the disposition, and arrangements for funeral goods and
505 services to be provided vest in the following degrees of relationship in the order named,

506 provided the person is at least 18 and is mentally competent:
507 (1) a person designated in a written instrument, excluding a power of attorney that
508 terminates at death under Sections 75-5-501 and 75-5-502 , if the written instrument contains:
509 (a) the name and address of the decedent;
510 (b) the name and address of the person designated under this Subsection (1);
511 (c) directions that the person designated in this Subsection (1) is authorized to carry out
512 the disposition of the decedent's remains;
513 [(c)] (d) the signature of the decedent;
514 [(d)] (e) the signatures of at least two unrelated individuals who are not the person
515 designated under this Subsection (1), each of whom signed within a reasonable time after
516 witnessing the signing of the form by the decedent; and
517 [(e)] (f) the date or dates the written instrument was prepared and signed;
518 (2) the surviving, legally recognized spouse of the decedent;
519 (3) (a) the sole surviving child [or the majority of the surviving children] of the
520 decedent [over the age of 18], or if there is more than one child of the decedent, the majority of
521 the surviving children;
522 [(4) the unanimous consent of the surviving parent, parents, or lawful custodian of the
523 decedent;]
524 [(5) the person or persons in the next degree of succession under Title 75, Chapter 2,
525 Intestate Succession and Wills;]
526 (b) less than one-half of the surviving children are vested with the rights of this section
527 if they have used reasonable efforts to notify all other surviving children of their instructions
528 and are not aware of any opposition to those instructions on the part of more than one-half of
529 all surviving children;
530 (4) the surviving parent or parents of the decedent, and if one of the surviving parents
531 is absent, the remaining parent is vested with the rights and duties of this section after
532 reasonable efforts have been unsuccessful in locating the absent surviving parent;
533 (5) (a) the surviving brother or sister of the decedent, or if there is more than one

534 sibling of the decedent, the majority of the surviving siblings;
535 (b) less than the majority of surviving siblings are vested with the rights and duties of
536 this section if they have used reasonable efforts to notify all other surviving siblings of their
537 instructions and are not aware of any opposition to those instructions on the part of more than
538 one-half of all surviving siblings;
539 (6) the person in the classes of the next degree of kinship, in descending order, under
540 the laws of descent and distribution to inherit the estate of the decedent, and if there is more
541 than one person of the same degree, any person of that degree may exercise the right of
542 disposition;
543 [(6)] (7) any public official charged with arranging the disposition of deceased persons;
544 and
545 [(7) a person or persons whom the funeral service director reasonably believes is
546 entitled to control the disposition; and]
547 (8) in the absence of any person under Subsections (1) through (7), any other person
548 willing to assume the [right and duty to control the disposition] responsibilities to act and
549 arrange the final disposition of the decedent's remains, including the personal representative of
550 the decedent's estate or the funeral service director with custody of the body, after attesting in
551 writing that a good faith effort has been made to no avail to contact the individuals referred to
552 in Subsections (1) through (7).
553 Section 14. Section 58-9-603 is repealed and reenacted to read:
554 58-9-603. Loss of right of disposition.
555 (1) As used in this section, "estranged" means a physical and emotional separation
556 from the decedent at the time of death which has existed for a period of time that clearly
557 demonstrates an absence of affection, trust, and regard for the decedent.
558 (2) A person who has a right of disposition under this chapter forfeits that right and the
559 right is passed on to the next qualifying person as listed in Section 58-9-602 under the
560 following circumstances:
561 (a) the person is charged with first or second degree murder or voluntary manslaughter

562 in connection with the decedent's death, and the charges are known by the funeral service
563 director, except that if the charges against the person are dropped or if the person is acquitted
564 of the charges, the right of disposition is returned to the person;
565 (b) the person does not exercise the person's right of disposition within three days of
566 notification of the decedent's death or within five days of the decedent's death, whichever is
567 earlier; or
568 (c) if a probate court under Section 58-9-605 determines that the person entitled to the
569 right of disposition and the decedent were estranged at the time of death.
570 Section 15. Section 58-9-605 is enacted to read:
571 58-9-605. Disputes.
572 (1) Notwithstanding Sections 58-9-601 through 58-9-604 , the probate court for the
573 county in which the decedent resided may:
574 (a) award the right of disposition to the person determined by the court to be the most
575 fit and appropriate to carry out the right of disposition; and
576 (b) make decisions regarding the decedent's remains if those sharing the right of
577 disposition cannot agree.
578 (2) The following provisions apply to the probate court's determinations under this
579 section:
580 (a) if the persons holding the right of disposition are two or more persons with the
581 same relationship to the decedent, and they cannot, by majority vote, make a decision regarding
582 the disposition of the decedent's remains, any of those persons or a funeral service director with
583 custody of the remains may petition the probate court to make the decision;
584 (b) in making a determination the probate court shall consider:
585 (i) the reasonableness and practicality of the proposed funeral arrangements and
586 disposition;
587 (ii) the degree of the personal relationship between the decedent and each of the
588 persons claiming the right of disposition;
589 (iii) the desires of the person or persons who are ready, able, and willing to pay the cost

590 of the funeral arrangements and disposition;
591 (iv) the convenience and needs of other families and friends wishing to pay their
592 respects;
593 (v) the desires of the decedent; and
594 (vi) the degree to which the funeral arrangements would allow maximum participation
595 by all who wish to pay their respects.
596 (3) (a) In a dispute regarding the right of disposition, until the funeral service director
597 receives a court order or other written agreement signed by the parties to the dispute that
598 decides the final disposition of the remains, the funeral service director is not liable for refusing
599 to:
600 (i) accept the decedent's remains;
601 (ii) inter or otherwise dispose of the decedent's remains; or
602 (iii) complete the arrangements for the final disposition of the decedent's remains.
603 (b) If, during a dispute, a funeral service director retains a decedent's remains for final
604 disposition, the director may:
605 (i) embalm or refrigerate and shelter the body, or both, to preserve it while awaiting the
606 final decision of the probate court; and
607 (ii) add the costs incurred under Subsection (3)(b)(i) to the final disposition costs.
608 (4) The legal fees and court costs incurred by a funeral service director for petitioning
609 the probate court under Subsection (2)(a) may be added to the final disposition costs.
610 (5) (a) This section does not require or impose a duty upon a funeral service director to
611 bring an action under Subsection (2)(a).
612 (b) A funeral service director may not be held criminally or civilly liable for failing to
613 bring an action under Subsection (2)(a).
614 (6) Except to the degree that it may be considered by the probate court under
615 Subsection (2)(b)(iii), the fact that a person has paid for or agreed to pay for all or part of the
616 decedent's funeral arrangements and final disposition does not give that person a higher priority
617 to the right of disposition that the person would otherwise have.

618 (7) The personal representative of the decedent's estate does not, by virtue of being the
619 personal representative, have a greater claim to the right of disposition than the personal
620 representative would otherwise have.
621 Section 16. Section 58-9-606 is enacted to read:
622 58-9-606. Right to rely -- Immunity.
623 (1) A person signing a funeral service agreement, cremation authorization form, or
624 other authorization for a decedent's disposition warrants the truthfulness of the facts set forth in
625 the document, including the identity of the decedent and the person's authority to order the
626 disposition.
627 (2) A funeral service establishment has the right to rely on a contract or authorization
628 executed under Subsection (1) and may carry out the instructions of the person whom its
629 funeral service director reasonably believes holds the right of disposition.
630 (3) A funeral service director incurs no civil or criminal liability for failure to contact
631 or independently investigate the existence of any next-of-kin or relative of the decedent.
632 (4) If there are at least two persons in the nearest class of the next-of-kin who are equal
633 in priority and a funeral service director has no knowledge of an objection by other members of
634 the class, the funeral service director may rely on and act according to the instructions of the
635 first person in the class to make funeral and disposition arrangements.
636 (5) A funeral service establishment or funeral service director who relies in good faith
637 on the instructions of a person claiming the right of disposition under this part is immune from
638 civil and criminal liability and disciplinary action in carrying out the disposition of a decedent's
639 remains in accordance with that person's instructions.
640 Section 17. Section 58-9-701 is amended to read:
641 58-9-701. Preneed contract requirements.
642 (1) (a) Every preneed funeral arrangement sold in Utah shall be evidenced by a written
643 contract.
644 (b) The [provider] funeral service establishment shall [file the form of the contract with
645 the division. Approval of the contract by the division is required before:] maintain a copy of

646 the contract until five years after all of its obligations under the contract have been executed.
647 [(a) any representation may be made by a provider or sales agent to a potential buyer;
648 or]
649 [(b) any sale.]
650 (2) Each preneed contract form [approved by the division] shall:
651 (a) be written in clear and understandable language printed in an easy-to-read type size
652 and style;
653 (b) bear the preprinted name, address, telephone number, and license number of the
654 [provider] funeral service establishment obligated to provide the services under the contract
655 terms;
656 (c) be sequentially numbered by contract form;
657 (d) clearly identify that the contract is a guaranteed product contract;
658 (e) provide that a trust is established in accordance with the provisions of Section
659 58-9-702 ;
660 (f) if the contract is funded by an insurance policy or product, provide that the
661 insurance policy or product is filed with the Insurance Department and meets the requirements
662 of Title 31A, Insurance Code; and
663 (g) conform to other standards created by rule under Title 63, Chapter 46a, Utah
664 Administrative Rulemaking Act, to protect the interests of buyers and potential buyers.
665 [(3) No modification of the form, terms, or conditions of the preneed contract may be
666 made without the prior written approval of the division. The division may not unreasonably
667 withhold approval.]
668 [(4)] (3) A preneed contract shall provide for payment by the buyer in a form which
669 may be liquidated by the [provider] funeral service establishment within 30 days after the day
670 the [provider] funeral service establishment or sales agent receives the payment.
671 [(5)] (4) A preneed contract may not be revocable by the [provider] funeral service
672 establishment except:
673 (a) in the event of nonpayment; and

674 (b) under terms and conditions clearly set forth in the contract.
675 [(6)] (5) (a) A preneed contract may not be revocable by the buyer or beneficiary
676 except:
677 (i) in the event of:
678 (A) a substantial contract breach by the [provider] funeral service establishment; or
679 (B) substantial evidence that the [provider] funeral service establishment is or will be
680 unable to provide the personal property or services to the beneficiary as provided under the
681 contract; or
682 (ii) under terms and conditions clearly set forth in the contract.
683 (b) The contract shall contain a clear statement of the manner in which payments made
684 on the contract shall be refunded to the buyer or beneficiary upon revocation by the beneficiary.
685 [(7)] (6) (a) A preneed contract shall provide the buyer the option to require the
686 [provider] funeral service establishment to furnish a written disclosure to a person who does
687 not live at the same residence as the buyer.
688 (b) The buyer may choose:
689 [(a)] (i) a full disclosure containing a copy of the entire preneed contract;
690 [(b)] (ii) a partial disclosure informing the recipient of:
691 [(i)] (A) the existence of a preneed contract; and
692 [(ii)] (B) the name, address, telephone number, and license number of the [provider]
693 funeral service establishment obligated to provide the services under the preneed contract; or
694 [(c)] (iii) not to require the [provider] funeral service establishment to furnish a written
695 disclosure to another person.
696 Section 18. Section 58-9-703 is amended to read:
697 58-9-703. Trust agreement.
698 (1) Each trust established by a [provider] funeral service establishment shall be
699 administered in accordance with a trust agreement conforming with:
700 (a) the requirements of this chapter;
701 (b) rules adopted with respect to this chapter;

702 (c) the provisions of Title 75, Chapter 7, [Trust Administration] Utah Uniform Trust
703 Code; and
704 (d) all other state and federal laws applicable to trusts and trust agreements.
705 (2) Each trust agreement shall require that the [provider report to the division:] funeral
706 service establishment maintain a copy of the trust agreement until five years after all of its
707 obligations under the trust agreement have been executed or transferred.
708 [(a) funds deposited into the trust in the name of the beneficiary;]
709 [(b) the contract number; and]
710 [(c) that the trustee shall establish a separate account within the trust for each
711 beneficiary and contract number.]
712 (3) Each trust agreement shall require that the trustee:
713 (a) separately account for each contract; and
714 (b) separately record payments with respect to each contract made into the corpus of
715 the trust.
716 (4) Each trust agreement shall provide for distributions from the trust in accordance
717 with the provisions of this chapter upon:
718 (a) the death of the beneficiary;
719 (b) revocation of the contract by the [provider] funeral service establishment upon
720 nonpayment by the buyer; or
721 (c) revocation of the contract by the beneficiary or buyer.
722 Section 19. Section 58-9-706 is amended to read:
723 58-9-706. Trust funds and insurance reports.
724 (1) (a) Each [provider] funeral service establishment shall [file an annual report with
725 the division on or before April 15 of each year in a form provided by the division] maintain an
726 annual report of preneed trust funds and insurance.
727 (b) The report shall [state] contain:
728 [(a)] (i) the name of the trustees with which the [provider] funeral service
729 establishment has trust funds on deposit; and

730 [(b)] (ii) the amount remaining on deposit in the trust fund on:
731 [(i)] (A) December 31 of the preceding year; or
732 [(ii)] (B) another annual reporting period as the division may establish.
733 [(2) (a) A provider is not required to renew its license if the provider:]
734 [(i) has outstanding contracts; and]
735 [(ii) has discontinued the sale of contracts.]
736 [(b) A provider that does not renew its license pursuant to this Subsection (2) shall
737 continue to make annual reports to the division until all outstanding contracts have been:]
738 [(i) fully performed; or]
739 [(ii) transferred to a licensed provider.]
740 (2) Each funeral service establishment may be audited by the division at any time.
741 Section 20. Section 58-9-707 is amended to read:
742 58-9-707. Records of trustee -- Contents.
743 (1) The trustee shall keep [a] an orderly record of all agreements.
744 (2) The record shall contain:
745 [(1)] (a) the name and address of the person making [payments] a payment;
746 [(2)] (b) the date and the amount of each payment made;
747 [(3)] (c) the date and amount of each withdrawal and to whom paid; and
748 [(4)] (d) the name of the bank or trust company depository.