Second Substitute S.B. 91

Senator David L. Gladwell proposes the following substitute bill:

1 FUNERAL SERVICES AMENDMENTS
2 2003 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: David L. Gladwell
5 This act modifies the Occupations and Professions Code by repealing the provisions of
6 the Funeral Services Licensing Act and the Preneed Funeral Arrangement Act. The act
7 enacts the provisions of those two acts within the Funeral Services Licensing Act. The act
8 alters the membership of the Board of Funeral Service. The act eliminates the Preneed
9 Funeral Arrangement Licensing Board and transfers the duties and responsibilities to the
10 Board of Funeral Service. The act enacts provisions prohibiting a convicted felon from
11 holding certain licenses. The act enacts endorsement requirements for individuals
12 licensed in another jurisdiction. The act enacts provisions prohibiting solicitation of
13 funeral services or merchandise after a person's death. The act establishes criminal
14 penalties for certain violations. The act enacts provisions dealing with the right and duty
15 to control the disposition of a deceased person. The act modifies the Utah Health Code
16 and the Utah Uniform Probate Code to provide cross-references to the Funeral Services
17 Licensing Act. The act makes technical changes.
18 This act affects sections of Utah Code Annotated 1953 as follows:
19 AMENDS:
20 26-2-18, as last amended by Chapter 86, Laws of Utah 2000
21 26-4-16, as enacted by Chapter 126, Laws of Utah 1981
22 63-55-258, as last amended by Chapter 49, Laws of Utah 2002
23 75-1-107, as repealed and reenacted by Chapter 39, Laws of Utah 1998
24 75-1-201, as last amended by Chapter 142, Laws of Utah 1999
25 ENACTS:

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Senate 2^nd Reading Amendments 2-4-2003 sm/tcl 26

58-9-101, Utah Code Annotated 1953
27 58-9-102, Utah Code Annotated 1953
28 58-9-201, Utah Code Annotated 1953
29 58-9-301, Utah Code Annotated 1953
30 58-9-302, Utah Code Annotated 1953
31 58-9-303, Utah Code Annotated 1953
32 58-9-304, Utah Code Annotated 1953
33 58-9-305, Utah Code Annotated 1953
34 58-9-306, Utah Code Annotated 1953
35 58-9-307, Utah Code Annotated 1953
36 58-9-401, Utah Code Annotated 1953
37 58-9-501, Utah Code Annotated 1953
38 58-9-502, Utah Code Annotated 1953
39 58-9-503, Utah Code Annotated 1953
40 58-9-504, Utah Code Annotated 1953
41 58-9-505, Utah Code Annotated 1953
42 58-9-506, Utah Code Annotated 1953
43 58-9-601, Utah Code Annotated 1953
44 58-9-602, Utah Code Annotated 1953
45 58-9-603, Utah Code Annotated 1953
46 58-9-604, Utah Code Annotated 1953
47 S [ 58-9-605, Utah Code Annotated 1953 ] s
48 58-9-701, Utah Code Annotated 1953
49 58-9-702, Utah Code Annotated 1953
50 58-9-703, Utah Code Annotated 1953
51 58-9-704, Utah Code Annotated 1953
52 58-9-705, Utah Code Annotated 1953
53 58-9-706, Utah Code Annotated 1953
54 58-9-707, Utah Code Annotated 1953
55 58-9-708, Utah Code Annotated 1953
56 REPEALS:

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- 3 - 57 58-9-1, as repealed and reenacted by Chapter 250, Laws of Utah 1991
58 58-9-2, as last amended by Chapter 297, Laws of Utah 1993
59 58-9-3, as last amended by Chapter 297, Laws of Utah 1993
60 58-9-4, as repealed and reenacted by Chapter 297, Laws of Utah 1993
61 58-9-5, as repealed and reenacted by Chapter 297, Laws of Utah 1993
62 58-9-6, as last amended by Chapter 313, Laws of Utah 1994
63 58-9-7, as repealed and reenacted by Chapter 297, Laws of Utah 1993
64 58-9-8, as repealed and reenacted by Chapter 250, Laws of Utah 1991
65 58-9-9, as repealed and reenacted by Chapter 250, Laws of Utah 1991
66 58-9-10, as repealed and reenacted by Chapter 250, Laws of Utah 1991
67 58-9-11, as repealed and reenacted by Chapter 250, Laws of Utah 1991
68 58-9-12, as repealed and reenacted by Chapter 250, Laws of Utah 1991
69 58-9-13, as repealed and reenacted by Chapter 297, Laws of Utah 1993
70 58-9-15, as repealed and reenacted by Chapter 250, Laws of Utah 1991
71 58-58-1, as enacted by Chapter 261, Laws of Utah 1991
72 58-58-2, as last amended by Chapter 297, Laws of Utah 1993
73 58-58-3, as last amended by Chapter 3, Laws of Utah 1996
74 58-58-4, as last amended by Chapter 297, Laws of Utah 1993
75 58-58-5, as last amended by Chapter 313, Laws of Utah 1994
76 58-58-6, as repealed and reenacted by Chapter 297, Laws of Utah 1993
77 58-58-7, as repealed and reenacted by Chapter 297, Laws of Utah 1993
78 58-58-8, as enacted by Chapter 261, Laws of Utah 1991
79 58-58-9, as enacted by Chapter 261, Laws of Utah 1991
80 58-58-10, as enacted by Chapter 261, Laws of Utah 1991
81 58-58-11, as enacted by Chapter 261, Laws of Utah 1991
82 58-58-12, as enacted by Chapter 261, Laws of Utah 1991
83 58-58-13, as enacted by Chapter 261, Laws of Utah 1991
84 58-58-14, as enacted by Chapter 261, Laws of Utah 1991
85 58-58-15, as enacted by Chapter 261, Laws of Utah 1991
86 Be it enacted by the Legislature of the state of Utah:
87 Section 1. Section 26-2-18 is amended to read:

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- 4 - 88 26-2-18. Interments -- Duties of sexton or person in charge -- Record of
89 interments -- Information filed with local registrar.
90 (1) (a) A sexton or person in charge of any premises in which interments are made may
91 not inter or permit the interment of any dead body or dead fetus unless the interment is made by
92 a funeral director licensed under Title 58, Chapter 9, Funeral Services Licensing Act, or by a
93 person holding a burial-transit permit.
94 (b) The right and duty to control the disposition of a deceased person shall be governed
95 by Sections 58-9-601 through 58-9-605 .
96 (2) The sexton or the person in charge of any premises where interments are made shall
97 keep a record of all interments made in the premises under his charge, stating the name of the
98 decedent, place of death, date of burial, and name and address of the funeral director or other
99 person making the interment. This record shall be open to public inspection. A city or county
100 clerk may, at the clerk's option, maintain the interment records on behalf of the sexton or
101 person in charge of any premises in which interments are made.
102 (3) Not later than the tenth day of each month, the sexton, person in charge of the
103 premises, or city or county clerk who maintains the interment records shall send to the local
104 registrar and the department a list of all interments made in the premises during the preceding
105 month. The list shall be in the form prescribed by the state registrar.
106 Section 2. Section 26-4-16 is amended to read:
107 26-4-16. Release of body for funeral preparations.
108 (1) Where a body is held for investigation or autopsy under the provisions of this
109 chapter or for any medical investigation permitted by law, the body shall, if requested by [next
110 of kin] the person given priority under Section 58-9-602 ,, be released for funeral preparations
111 no later than 24 hours after the arrival at the office of the medical examiner or regional medical
112 facility. An extension may be ordered only by a district court.
113 (2) The right and duty to control the disposition of a deceased person shall be governed
114 by Sections 58-9-601 through 58-9-605 .
115 Section 3. Section 58-9-101 is enacted to read:
116 CHAPTER 9. FUNERAL SERVICES LICENSING ACT
117 Part 1. General Provisions
118 58-9-101. Title.

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- 5 - 119 This chapter is known as the "Funeral Services Licensing Act."
120 Section 4. Section 58-9-102 is enacted to read:
121 58-9-102. Definitions.
122 In addition to the definitions in Section 58-1-102 , as used in this chapter:
123 (1) "Beneficiary" means the individual who, at the time of the beneficiary's death, is to
124 receive the benefit of the property and services purchased under a preneed funeral arrangement.
125 (2) "Board" means the Board of Funeral Service created in Section 58-9-201 .
126 (3) "Buyer" means any person who purchases a preneed funeral arrangement.
127 (4) "Calcination" means a process in which a dead human body is reduced by intense
128 heat to a residue that is not as substantive as the residue that follows cremation.
129 (5) "Cremation" means the reduction of a dead human body by direct flame to residue
130 that includes bone fragments.
131 (6) "Direct disposition" means the disposition of a dead human body:
132 (a) as quickly as law allows;
133 (b) without preparation of the body by embalming; and
134 (c) without any attendant funeral service or graveside service.
135 (7) "Disposition" means the final disposal of a dead human body by:
136 (a) earth interment;
137 (b) above ground burial;
138 (c) cremation;
139 (d) calcination;
140 (e) burial at sea;
141 (f) delivery to a medical institution; or
142 (g) other lawful means.
143 (8) "Embalming" means replacing body fluids in a dead human body with preserving
144 and disinfecting chemicals.
145 (9) "Funeral establishment" means a place established for any of the following
146 purposes in connection with a dead human body:
147 (a) custody;
148 (b) shelter;
149 (c) care;

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- 6 - 150 (d) preparation;
151 (e) disposition; or
152 (f) other services.
153 (10) (a) "Funeral merchandise" means any of the following into which a dead human
154 body is placed in connection with the transportation or disposition of the body:
155 (i) vaults;
156 (ii) caskets; or
157 (iii) other personal property.
158 (b) "Funeral merchandise" does not include:
159 (i) mausoleum crypts;
160 (ii) interment receptacles preset in a cemetery; or
161 (iii) columbarium niches.
162 (11) "Funeral service" means any service, rite, or ceremony performed:
163 (a) with respect to the death of a human; and
164 (b) with the body of the deceased present.
165 (12) "Funeral service apprentice" means an individual licensed under this chapter who
166 is permitted to:
167 (a) assist a funeral service director in the embalming or other preparation of a dead
168 human body for deposition;
169 (b) assist a funeral service director in the cremation, calcination, or pulverization of a
170 dead human body or its remains; and
171 (c) perform other funeral service activities under supervision of a funeral service
172 director.
173 (13) "Funeral service director" means an individual licensed under this chapter who
174 may engage in all lawful professional activities regulated and defined under the practice of
175 funeral service.
176 (14) "Graveside service" means a funeral service held at the location of disposition.
177 (15) "Memorial service" means any service, rite, or ceremony performed:
178 (a) with respect to the death of a human; and
179 (b) without the body of the deceased present.
180 (16) "Practice of funeral service" means:

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- 7 - 181 (a) supervising the receipt of custody and transportation of a dead human body to
182 prepare the body for:
183 (i) disposition; or
184 (ii) shipment to another location;
185 (b) entering into a contract with any person to provide professional services regulated
186 under this chapter;
187 (c) embalming or otherwise preparing a dead human body for disposition;
188 (d) supervising the arrangement or conduct of any of the following:
189 (i) a funeral service;
190 (ii) a graveside service; or
191 (iii) a memorial service;
192 (e) cremation, calcination, or pulverization of a dead human body or the body's
193 remains;
194 (f) supervising the arrangement of:
195 (i) a disposition; or
196 (ii) a direct disposition;
197 (g) facilitating:
198 (i) a disposition; or
199 (ii) a direct disposition;
200 (h) supervising sales of funeral merchandise by a funeral establishment;
201 (i) managing or otherwise being responsible for the practice of funeral service in a
202 licensed funeral establishment;
203 (j) supervising the sale of a preneed funeral arrangement; and
204 (k) contracting with or employing individuals to sell a preneed funeral arrangement.
205 (17) (a) "Preneed funeral arrangement" means any written or oral agreement sold in
206 advance of the death of the beneficiary under which a person agrees with a buyer to provide at
207 the death of the beneficiary any of the following as are typically provided in connection with a
208 disposition:
209 (i) goods;
210 (ii) services, including:
211 (A) embalming services; and

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House Floor Amendments 2-13-2003 kh/tcl 212

(B) funeral directing services;
213 (iii) real property; or
214 (iv) personal property, including:
215 (A) caskets;
216 (B) other primary containers;
217 (C) cremation or transportation containers;
218 (D) outer burial containers;
219 (E) vaults;
220 (F) grave liners;
221 (G) funeral clothing and accessories;
222 (H) monuments;
223 (I) grave markers; and
224 (J) cremation urns.
225 h [ (b) "Preneed funeral arrangement" includes a policy or product of life insurance:
226 (i) providing a death benefit cash payment on the death of the beneficiary; and
227 (ii) that is limited to providing the products and services described in Subsection
228 (17)(a).
229 (c) "Preneed funeral arrangement" does not include a policy or product of life insurance
230 that does not meet the requirements of Subsection (17)(b). ]
230a (b) "PRENEED FUNERAL ARRANGEMENT" DOES NOT INCLUDE A POLICY OR PRODUCT OF
230b LIFE INSURANCE PROVIDING A DEATH BENEFIT CASH PAYMENT UPON THE DEATH OF THE
230c BENEFICIARY WHICH IS NOT LIMITED TO PROVIDING THE PRODUCTS OR SERVICES DESCRIBED
230d IN SUBSECTION (17)(a). h
231 (18) "Provider" means a licensed funeral establishment that furnishes or will furnish
232 the services or property purchased under a preneed funeral arrangement.
233 (19) "Pulverization" means a grinding process that reduces the residue of a cremation
234 or calcination into a powdery substance.
235 (20) "Sales agent" means an individual licensed under this chapter as a preneed funeral
236 arrangement sales agent.
237 (21) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-9-501 .
238 (22) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-9-502 .
239 Section 5. Section 58-9-201 is enacted to read:
240 Part 2. Board

241 58-9-201. Board.
242 (1) There is created the Board of Funeral Service consisting of:

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- 9 - 243 (a) three funeral service directors who own or have an ownership interest in a funeral
244 establishment, at least two of which are preened funeral arrangement providers;
245 (b) one preneed funeral arrangement sales agent, who does not have an ownership
246 interest in a funeral service establishment;
247 (c) one owner or officer of an endowment care cemetery; and
248 (d) two members from the general public who have no association with the funeral
249 service profession.
250 (2) The board shall be appointed and serve in accordance with Section 58-1-201 .
251 (3) The duties and responsibilities of the board shall be in accordance with Sections
252 58-1-202 and 58-1-203 . In addition, the board shall designate one of its members on a
253 permanent or rotating basis to:
254 (a) assist the division in reviewing complaints concerning the unlawful or
255 unprofessional conduct of a licensee; and
256 (b) advise the division in its investigation of these complaints.
257 (4) A board member who has, under Subsection (3), reviewed a complaint or advised
258 the division in its investigation may be disqualified from participating with the board when the
259 board serves as a presiding officer of an administrative proceeding concerning the complaint.
260 Section 6. Section 58-9-301 is enacted to read:
261 Part 3. Licensing
262 58-9-301. Licensure required -- License classifications.
263 (1) A license is required to engage in the practice of funeral service, except as
264 specifically provided in Sections 58-1-307 and 58-9-305 .
265 (2) The division shall issue to a person who qualifies under this chapter a license in the
266 classification of:
267 (a) funeral service director;
268 (b) funeral service apprentice;
269 (c) funeral service establishment;
270 (d) preneed funeral arrangement provider; or
271 (e) preneed funeral arrangement sales agent.
272 Section 7. Section 58-9-302 is enacted to read:
273 58-9-302. Qualifications for licensure.

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- 10 - 274 (1) Each applicant for licensure as a funeral service director shall:
275 (a) submit an application in a form prescribed by the division;
276 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
277 (c) be of good moral character in that the applicant has not been convicted of:
278 (i) a felony;
279 (ii) a misdemeanor involving moral turpitude; or
280 (iii) any other crime that when considered with the duties and responsibilities of a
281 funeral service director is considered by the division and the board to indicate that the best
282 interests of the public are not served by granting the applicant a license;
283 (d) have completed a high school education or its equivalent;
284 (e) have obtained an associate degree, or its equivalent, in mortuary science from a
285 school of funeral service accredited by the American Board of Funeral Service Education or
286 other accrediting body recognized by the U.S. Department of Education;
287 (f) have completed not less than 2,000 hours and 50 embalmings, over a period of not
288 less than one year, of satisfactory performance in training as a licensed funeral service
289 apprentice under the supervision of a licensed funeral service director; and
290 (g) have successfully completed examinations approved by the division in
291 collaboration with the board.
292 (2) Each applicant for licensure as a funeral service apprentice shall:
293 (a) submit an application in a form prescribed by the division;
294 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
295 (c) be of good moral character in that the applicant has not been convicted of:
296 (i) a felony;
297 (ii) a misdemeanor involving moral turpitude; or
298 (iii) any other crime that when considered with the duties and responsibilities of a
299 funeral service apprentice is considered by the division and the board to indicate that the best
300 interests of the public are not served by granting the applicant a license;
301 (d) have completed a high school education or its equivalent; and
302 (e) have successfully completed an examination testing the applicant's knowledge of
303 the law and rules made under this chapter.
304 (3) Each applicant for licensure as a funeral service establishment shall:

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- 11 - 305 (a) submit an application in a form prescribed by the division;
306 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
307 (c) have in place and maintain at all times a licensed funeral service director
308 responsible for the operation of the funeral service establishment as the sole proprietor, a
309 managing general partner, or an officer of a corporation or other business entity; and
310 (d) if it is the intention of the funeral service establishment to sell preneed funeral
311 arrangements, file with the division an application for a license to sell preneed funeral
312 arrangements.
313 (4) Each applicant for licensure as a preneed funeral arrangement provider shall:
314 (a) submit an application in a form provided by the division;
315 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
316 (c) be licensed in the state as a funeral service establishment;
317 (d) be free of activities or conduct which, when considered with the responsibilities of
318 a licensee and the public interest, is a threat to the public health, safety, or welfare;
319 (e) file with the completed application a copy of each form of contract or agreement the
320 applicant will use in the sale of preneed funeral arrangements; and
321 (f) provide evidence of appropriate licensure with the Insurance Department if the
322 applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or
323 in part by an insurance policy or product to be sold by the provider or the provider's sales agent.
324 (5) Each applicant for licensure as a preneed funeral arrangement sales agent shall:
325 (a) submit an application in a form prescribed by the division;
326 (b) pay a fee as determined by the department under Section 63-38-3.2 ;
327 (c) be of good moral character in that the applicant has not been convicted of:
328 (i) a felony;
329 (ii) a misdemeanor involving moral turpitude; or
330 (iii) any other crime that when considered with the duties and responsibilities of a
331 preneed funeral sales agent is considered by the division and the board to indicate that the best
332 interests of the public are not served by granting the applicant a license;
333 (d) be a high school graduate or have obtained a certificate of equivalency approved by
334 the division;
335 (e) pass an examination approved by the division in collaboration with the board;

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- 12 - 336 (f) provide evidence that the applicant will be associated with a licensed preneed
337 funeral arrangement provider upon issuance of a license under terms acceptable to the division;
338 and
339 (g) provide evidence of appropriate licensure with the Insurance Department if the
340 applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or
341 in part by an insurance policy or product.
342 Section 8. Section 58-9-303 is enacted to read:
343 58-9-303. Term of license -- Expiration -- Renewal.
344 (1) The division shall issue each license under this chapter in accordance with a
345 two-year renewal cycle established by rule. The division may by rule extend or shorten a
346 renewal cycle by as much as one year to stagger the renewal cycles it administers.
347 (2) Notwithstanding Subsection (1), a person who has once held a license as a funeral
348 service apprentice and has not qualified for licensure as a funeral service director may be issued
349 a subsequent funeral service apprentice license for only one additional two-year term upon the
350 specific approval of the division in collaboration with the board.
351 (3) At the time of renewal, the licensee shall show satisfactory evidence of completion
352 of continuing education as required under Section 58-9-304 .
353 (4) Each license automatically expires on the expiration date shown on the license
354 unless the licensee renews it in accordance with Section 58-1-308 .
355 Section 9. Section 58-9-304 is enacted to read:
356 58-9-304. Continuing education.
357 (1) As a condition precedent for license renewal, each funeral service director shall,
358 during each two-year licensure cycle or other cycle defined by rule, complete 20 hours of
359 qualified continuing professional education in accordance with standards defined by rule.
360 (2) If a renewal cycle is extended or shortened under Section 58-9-303 , the continuing
361 education hours required for license renewal under this section shall be increased or decreased
362 proportionally.
363 Section 10. Section 58-9-305 is enacted to read:
364 58-9-305. Exemptions from licensure.
365 In addition to the exemptions from licensure in Section 58-1-307 , a person may engage
366 in the following acts included within the definition of the practice of funeral service, subject to

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- 13 - 367 the stated circumstances and limitations, without being licensed under this chapter:
368 (1) transportation of a dead human body in accordance with other applicable state and
369 federal laws;
370 (2) ambulance or other emergency transportation of a dead human body;
371 (3) the sale of any of the following that is delivered to the buyer or the buyer's designee
372 within 90 days after the day of the sale:
373 (a) funeral merchandise;
374 (b) headstones; or
375 (c) other memorial merchandise;
376 (4) the performance of funeral, graveside, or memorial services by:
377 (a) a member of the clergy;
378 (b) a member of the decedent's family; or
379 (c) any other recognized individual;
380 (5) assisting a Utah licensed funeral service director regarding disasters or special
381 emergencies by individuals licensed in other states as funeral service directors;
382 (6) activities of an unlicensed individual employed by a funeral service establishment
383 involving arrangement for a funeral service or the sale of funeral merchandise if the binding
384 contract is reviewed, approved, and signed in behalf of the funeral service establishment by a
385 licensed funeral service director; and
386 (7) nonprofessional tasks or activities which do not require independent professional
387 judgment which are required of persons employed by a funeral service establishment under the
388 supervision of a funeral service director.
389 Section 11. Section 58-9-306 is enacted to read:
390 58-9-306. License by endorsement.
391 The division may issue a license by endorsement to a person who holds a license to
392 engage in the practice of funeral service from another state, jurisdiction, or territory of the
393 United States, if:
394 (1) the person's license is:
395 (a) active;
396 (b) in good standing; and
397 (c) free from disciplinary action; and

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- 14 - 398 (2) the person:
399 (a) meets the requirements of Section 58-1-302 ;
400 (b) is of good moral character in that the person has not been convicted of:
401 (i) a felony;
402 (ii) a misdemeanor involving moral turpitude; or
403 (iii) any other crime that when considered with the duties and responsibilities of the
404 license for which the person is applying is considered by the division and the board to indicate
405 that the best interests of the public are not served by granting the applicant a license;
406 (c) has completed five years of lawful and active practice as a licensed funeral service
407 director and embalmer within the ten years immediately preceding the application for licensure
408 by endorsement;
409 (d) has passed a national examination determined by the division; and
410 (e) has passed an examination on the rules of the state determined by the division.
411 Section 12. Section 58-9-307 is enacted to read:
412 58-9-307. Supervision of funeral service apprentice.
413 (1) A person seeking licensure as a funeral service apprentice shall submit as a part of
414 the application for a license:
415 (a) the name of the licensed funeral service director who has agreed to supervise the
416 applicant; and
417 (b) the name of the licensed funeral establishment at which the training and supervision
418 shall take place.
419 (2) A licensed funeral service director may supervise only one licensed funeral service
420 apprentice at one time.
421 (3) Within 30 days after the day on which the supervisor-supervisee relationship
422 between a licensed funeral service director and a licensed funeral service apprentice terminates,
423 the funeral service director shall furnish to the division a report of the performance of the
424 funeral service apprentice. The report shall be in form and content as prescribed by the
425 division.
426 (4) A licensed funeral service apprentice may apply to the division to request
427 supervision by a different funeral service director. The application shall be made on a form
428 prescribed by the division. A change of supervisor requires approval of the division. The

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- 15 - 429 supervising funeral service director shall submit to the division, in accordance with Subsection
430 (3), a report of the funeral service apprentice's performance.
431 (5) The licensed funeral service director is responsible for all of the duties and
432 functions performed by the funeral service apprentice.
433 Section 13. Section 58-9-401 is enacted to read:
434 Part 4. License Denial and Discipline
435 58-9-401. Grounds for denial of license -- Disciplinary proceedings.
436 Grounds for refusing to issue a license to an applicant, for refusing to renew the license
437 of a licensee, for revoking, suspending, restricting, or placing on probation the license of a
438 licensee, for issuing a public or private reprimand to a licensee, and for issuing a cease and
439 desist order shall be in accordance with Section 58-1-401 .
440 Section 14. Section 58-9-501 is enacted to read:
441 Part 5. Unlawful and Unprofessional Conduct -- Penalties
442 58-9-501. Unlawful conduct.
443 "Unlawful conduct" includes:
444 (1) doing any of the following to prepare a dead human body for disposition unless
445 licensed as a funeral service director or a funeral service apprentice:
446 (a) embalming;
447 (b) calcinating;
448 (c) pulverizing;
449 (d) cremating; or
450 (e) using any method that invades a dead human body;
451 (2) using the title "funeral service director," "funeral service apprentice," or "funeral
452 service establishment" unless licensed under this chapter;
453 (3) engaging in, providing, or agreeing to provide funeral arrangements to be provided
454 under a preneed funeral arrangement without first obtaining a license as a preneed funeral
455 arrangement provider under this chapter;
456 (4) engaging in selling, representing for sale, or in any other way offering to sell any
457 contract under which preneed funeral arrangements are to be provided without first obtaining a
458 license under this chapter as:
459 (a) a preneed funeral arrangement sales agent; or

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461 (5) selling or representing for sale any preneed funeral arrangement contract or
462 agreement:
463 (a) which has not been approved as to form and content by the division; and
464 (b) a current copy of which is not on file with the division; and
465 (6) failing to comply with Section 58-9-702 .
466 Section 15. Section 58-9-502 is enacted to read:
467 58-9-502. Unprofessional conduct.
468 (1) "Unprofessional conduct" includes:
469 (a) the failure of a funeral service director to accurately document, report, and
470 supervise the activities of a funeral service apprentice;
471 (b) knowingly soliciting the sale of any funeral service or funeral merchandise for a
472 person whose death occurred or was imminent prior to the solicitation; and
473 (c) paying or offering to pay a commission or anything of value to secure deceased
474 human remains for a funeral service or disposition to:
475 (i) medical personnel;
476 (ii) a nursing home;
477 (iii) a nursing home employee;
478 (iv) a hospice;
479 (v) a hospice employee;
480 (vi) clergy;
481 (vii) a government official; or
482 (viii) any other third party.
483 (2) "Unprofessional conduct" does not include:
484 (a) general advertising directed to the public at large; or
485 (b) responding to a notification of death from:
486 (i) medical personnel;
487 (ii) a nursing home;
488 (iii) a nursing home employee;
489 (iv) a hospice;
490 (v) a hospice employee;

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492 (vii) a government official; or
493 (viii) any authorized representative of the family of the deceased person.
494 Section 16. Section 58-9-503 is enacted to read:
495 58-9-503. Penalty for unlawful conduct.
496 (1) Any person who violates the unlawful conduct provisions defined in Subsections
497 58-9-501 (1) through (5) is guilty of a class A misdemeanor.
498 (2) Any person who violates the unlawful conduct provision defined in Subsection
499 58-9-501 (6) may be prosecuted under Title 76, Chapter 6, Part 4, Theft.
500 Section 17. Section 58-9-504 is enacted to read:
501 58-9-504. Authority to promulgate rules.
502 In addition to the authority granted under Section 58-1-106 , in accordance with Title
503 63, Chapter 46a, Utah Administrative Rulemaking Act, the division in collaboration with the
504 board shall establish by rule:
505 (1) the minimum requirements for a licensed funeral establishment for the following:
506 (a) physical facilities;
507 (b) equipment;
508 (c) instruments; and
509 (d) supplies;
510 (2) license cycles under Section 58-9-303 ;
511 (3) standards to protect the interests of buyers and potential buyers of preneed funeral
512 arrangements under Section 58-9-701 ; and
513 (4) standards for preneed funeral arrangement trusts.
514 Section 18. Section 58-9-505 is enacted to read:
515 58-9-505. Disclosure requirements.
516 A licensee under this chapter shall disclose information in accordance with regulations
517 of the Federal Trade Commission and rules adopted by the division pursuant to this chapter.
518 Section 19. Section 58-9-506 is enacted to read:
519 58-9-506. Inspection -- Right to access.
520 A licensed funeral service establishment is subject to inspection during normal business
521 hours to determine compliance with the laws of Utah by:

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Senate 2^nd Reading Amendments 2-4-2003 sm/tcl 522

(1) any authorized representative of the division; or
523 (2) any authorized representative of a local or state health department.
524 Section 20. Section 58-9-601 is enacted to read:
525 Part 6. Control of Disposition
526 58-9-601. Advance directions.
527 (1) A person may provide written directions meeting the requirements of Subsection
528 (2) to direct the preparation, type, and place of the person's disposition, including:
529 (a) designating a funeral service establishment;
530 (b) providing directions for burial arrangements; or
531 (c) providing directions for cremation arrangements.
532 (2) The written directions described in Subsection (1) shall contain:
533 (a) the name and address of the decedent;
534 (b) written directions regarding the decedent's disposition;
535 (c) the signature of the decedent;
536 (d) the signatures of at least two unrelated individuals, each of whom signed within a
537 reasonable time after witnessing the signing of the form by the decedent; and
538 (e) the date or dates the written directions were prepared and signed.
539 (3) A funeral service director shall carry out the written directions of the decedent
540 prepared under this section to the extent that:
541 h [ (a) the directions are reasonable;
542 (b) ] (a) h the directions are lawful; and
543 h [ (c) ] (b) h the decedent has provided resources to carry out the directions.
544 (4) Directions for disposition contained in a will shall be carried out pursuant to
545 Subsection (3) regardless of:
546 (a) the validity of other aspects of the will; or
547 (b) the fact that the will may not be offered or admitted to probate until a later date.
548 (5) A person may change or cancel written directions prepared under this section at any
549 time prior to the person's death by providing written notice to all applicable persons, including:
550 S [ (a) the individuals who signed the written directions under Subsection (2)(d); ]
551 [ (b) ] (a) s if the written directions designate a funeral service establishment or funeral
551a service
552 director, the funeral service establishment or funeral service director designated in the written

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Senate 2^nd Reading Amendments 2-4-2003 sm/tcl 553

directions; and
554 S [ (c) ] (b) s if the written directions are contained in a will, the personal representative as
555 defined in Section 75-1-201 .
556 Section 21. Section 58-9-602 is enacted to read:
557 58-9-602. Determination of control of disposition.
558 The right and duty to control the disposition of a deceased person, including the
559 location and conditions of the disposition, vest in the following degrees of relationship in the
560 order named:
561 (1) a person designated in a written instrument, excluding a power of attorney that
562 terminates at death under Sections 75-5-501 and 75-5-502 , if the written instrument contains:
563 (a) the name and address of the decedent;
564 (b) the name and address of the person designated under this Subsection (1);
565 (c) the signature of the decedent;
566 (d) the signatures of at least two unrelated individuals who are not the person
567 designated under this Subsection (1), each of whom signed within a reasonable time after
568 witnessing the signing of the form by the decedent; and
569 (e) the date or dates the written instrument was prepared and signed;
570 (2) the surviving, legally recognized spouse of the decedent;
571 (3) the surviving child or the majority of the surviving children of the decedent over
572 the age of 18;
573 (4) the unanimous consent of the surviving parent, parents, or lawful custodian of the
574 decedent;
575 (5) the person or persons in the next degree of succession under Title 75, Chapter 2,
576 Intestate Succession and Wills;
577 (6) any public official charged with arranging the disposition of deceased persons;
578 (7) a person or persons whom the funeral service director reasonably believes is
579 entitled to control the disposition; and
580 (8) in the absence of any person under Subsections (1) through (7), any person willing
581 to assume the right and duty to control the disposition.
582 S [ Section 22. Section 58-9-603 is enacted to read:
583 58-9-603. Estranged persons. ] s

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Senate 2^nd Reading Amendments 2-4-2003 sm/tcl 584

S [ (1) As used in this section, "estranged" means having a relationship characterized by
585 mutual enmity, hostility, or indifference.
586 (2) The right and duty to control the disposition falls to the person in the subsequent
587 degree of relationship under Section 58-9-602 if:
588 (a) there is only one person in one degree of relationship to the decedent; and
589 (b) a court having jurisdiction determines that the person described in Subsection (2)(a)
590 and the decedent were estranged at the time of the decedent's death.
591 Section 23. Section 58-9-604 is enacted to read:
592 58-9-604. Refusal of control of disposition. ] Section 22. Section 58-9-603 is enacted to read:
592a 58-9-603. Refusal of control of disposition . s
593 If a person declines to act on the right and duty to control the disposition as established
594 in this part, the right and duty to control the disposition shall pass:
595 (1) to another person with the same degree of relationship to the decedent under
596 Section 58-9-602 as the person that declines to act on the right and duty to control the
597 disposition; or
598 (2) if no person satisfies Subsection (1), to the person or persons in the next degree of
599 relationship under Section 58 -9-602 .
600 S [Section 24. Section 58-9-605 is enacted to read:
601 58-9-605. Control by funeral service director.] Section 23. Section 58-9-604 is enacted to read:
601a 58-9-604. Control by funeral service director. s
602 A funeral service director may control the disposition of the decedent and recover
603 reasonable charges if:
604 (1) (a) the funeral service director has actual knowledge that none of the persons
605 described in Section 58-9-602 exist; or
606 (b) after reasonable efforts the funeral service director is not able to contact any of the
607 persons described in Section 58-9-602 ; and
608 (2) the appropriate public official charged with arranging the disposition of deceased
609 persons fails to assume responsibility for disposition of the decedent within 36 hours after
610 receiving written notice from the funeral service director.
611 Section S [ 25 ] 24 s . Section 58-9-701 is enacted to read:
612 Part 7. Preneed Funeral Arrangement Requirements
613 58-9-701. Preneed contract requirements.
614 (1) Every preneed funeral arrangement sold in Utah shall be evidenced by a written

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- 21 - 615 contract. The provider shall file the form of the contract with the division. Approval of the
616 contract by the division is required before:
617 (a) any representation may be made by a provider or sales agent to a potential buyer; or
618 (b) any sale.
619 (2) Each preneed contract form approved by the division shall:
620 (a) be written in clear and understandable language printed in an easy-to-read type size
621 and style;
622 (b) bear the preprinted name, address, telephone number, and license number of the
623 provider obligated to provide the services under the contract terms;
624 (c) be sequentially numbered by contract form;
625 (d) clearly identify that the contract is a guaranteed product contract;
626 (e) provide that a trust is established in accordance with the provisions of Section
627 58-9-702 ;
628 (f) if the contract is funded by an insurance policy or product, provide that the
629 insurance policy or product is filed with the Insurance Department and meets the requirements
630 of Title 31A, Insurance Code; and
631 (g) conform to other standards created by rule under Title 63, Chapter 46a, Utah
632 Administrative Rulemaking Act, to protect the interests of buyers and potential buyers.
633 (3) No modification of the form, terms, or conditions of the preneed contract may be
634 made without the prior written approval of the division. The division may not unreasonably
635 withhold approval.
636 (4) A preneed contract shall provide for payment by the buyer in a form which may be
637 liquidated by the provider within 30 days after the day the provider or sales agent receives the
638 payment.
639 (5) A preneed contract may not be revocable by the provider except:
640 (a) in the event of nonpayment; and
641 (b) under terms and conditions clearly set forth in the contract.
642 (6) (a) A preneed contract may not be revocable by the buyer or beneficiary except:
643 (i) in the event of:
644 (A) a substantial contract breach by the provider; or
645 (B) substantial evidence that the provider is or will be unable to provide the personal

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647 (ii) under terms and conditions clearly set forth in the contract.
648 (b) The contract shall contain a clear statement of the manner in which payments made
649 on the contract shall be refunded to the buyer or beneficiary upon revocation by the beneficiary.
650 Section 26. Section 58-9-702 is enacted to read:
651 58-9-702. Payments to be held in trust -- Trustee qualifications.
652 (1) All money representing payments for the purchase of a preneed funeral
653 arrangement shall be deposited by the provider or sales agent receiving the payment:
654 (a) within ten business days after the day on which the provider or sales agent receives
655 the payment in the form of cash or cash equivalent; or
656 (b) within 35 calendar days after the day on which the provider or sales agent receives
657 the payment in the form of a negotiable instrument.
658 (2) All money received under Subsection (1) shall be placed in a trust account naming
659 as trustee a Utah financial institution authorized to engage in the trust business under Title 7,
660 Chapter 5, Trust Business.
661 Section 27. Section 58-9-703 is enacted to read:
662 58-9-703. Trust agreement.
663 (1) Each trust established by a provider shall be administered in accordance with a trust
664 agreement conforming with:
665 (a) the requirements of this chapter;
666 (b) rules adopted with respect to this chapter;
667 (c) the provisions of Title 75, Chapter 7, Trust Administration; and
668 (d) all other state and federal laws applicable to trusts and trust agreements.
669 (2) Each trust agreement shall require that the provider report to the division:
670 (a) funds deposited into the trust in the name of the beneficiary;
671 (b) the contract number; and
672 (c) that the trustee shall establish a separate account within the trust for each
673 beneficiary and contract number.
674 (3) Each trust agreement shall require that the trustee:
675 (a) separately account for each contract; and
676 (b) separately record payments with respect to each contract made into the corpus of

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678 (4) Each trust agreement shall provide for distributions from the trust in accordance
679 with the provisions of this chapter upon:
680 (a) the death of the beneficiary;
681 (b) revocation of the contract by the provider upon nonpayment by the buyer; or
682 (c) revocation of the contract by the beneficiary or buyer.
683 Section 28. Section 58-9-704 is enacted to read:
684 58-9-704. Interest earned on trust funds.
685 Interest earned on trust funds shall be available for expenditure according to the
686 following priority:
687 (1) to pay the reasonable trustee expenses of administering the trust within a maximum
688 amount established by rule;
689 (2) to pay within a maximum amount established by rule under Section 58-9-504 the
690 reasonable provider expenses associated with:
691 (a) the sale of the plan;
692 (b) administering the collection, remittance, and accounting of the amount of payments
693 made into the corpus of the trust; and
694 (c) reporting required with respect to those contracts:
695 (i) that have been sold; and
696 (ii) under which the provider is obligated;
697 (3) to pay the costs of providing any of the following for which the provider is
698 obligated under a specific outstanding preneed funeral arrangement contract:
699 (a) personal property; and
700 (b) services at need; and
701 (4) to pay the provider available funds left in the individual trust account after:
702 (a) all costs of providing personal property and services for which the provider is
703 obligated under the contract underlying the trust; or
704 (b) (i) the contract is canceled as provided under this chapter; and
705 (ii) all amounts payable to the buyer, beneficiary, or any other person have been paid in
706 full.
707 Section 29. Section 58-9-705 is enacted to read:

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709 (1) Interest earned on trust funds shall be available to the provider according to the
710 priority set forth in Section 58-9-704 .
711 (2) The amount of payments made into the corpus of the trust and any other amount
712 which has been paid into the corpus of the trust shall be paid to the provider in the amount
713 credited to a specific account upon the event of one of the following:
714 (a) the death of the beneficiary which shall be demonstrated to the trustee by the
715 provider by furnishing to the trustee:
716 (i) a request for payment from the trust; and
717 (ii) a certified copy of the death certificate of the beneficiary; or
718 (b) revocation of the preneed funeral arrangement contract by either the provider or the
719 buyer according to the terms and conditions of the contract, which shall be demonstrated to the
720 trustee by the provider by furnishing to the trustee satisfactory evidence that:
721 (i) the contract has been revoked; and
722 (ii) the provider has paid all funds due to the buyer or beneficiary.
723 (3) After the provider completes all of the provider's obligations under the preneed
724 funeral arrangement, the provider shall return all remaining funds under the preneed funeral
725 arrangement to the estate of the beneficiary.
726 (4) Upon an order of any court having jurisdiction, all amounts that have been paid into
727 the corpus of the trust shall be paid to the buyer or beneficiary in the event of:
728 (a) a judgment to the benefit of a buyer or beneficiary upon a finding that:
729 (i) the provider is in substantial breach of the contract; or
730 (ii) there is substantial evidence that the provider is or will be unable to provide the
731 personal property or services to the beneficiary under the contract;
732 (b) a judgment of bankruptcy against the provider; or
733 (c) any finding by the court that determines the funds should be rightfully returned to
734 the buyer or beneficiary.
735 Section 30. Section 58-9-706 is enacted to read:
736 58-9-706. Annual reports concerning trust funds.
737 (1) Each provider shall file an annual report with the division on or before April 15 of
738 each year in a form provided by the division. The report shall state:

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- 25 - 739 (a) the name of the trustees with which the provider has trust funds on deposit; and
740 (b) the amount remaining on deposit in the trust fund on:
741 (i) December 31 of the preceding year; or
742 (ii) another annual reporting period as the division may establish.
743 (2) (a) A provider is not required to renew its license if the provider:
744 (i) has outstanding contracts; and
745 (ii) has discontinued the sale of contracts.
746 (b) A provider that does not renew its license pursuant to this Subsection (2) shall
747 continue to make annual reports to the division until all outstanding contracts have been:
748 (i) fully performed; or
749 (ii) transferred to a licensed provider.
750 Section 31. Section 58-9-707 is enacted to read:
751 58-9-707. Records and reports of trustee -- Contents.
752 The trustee shall keep a record of all agreements. The record shall contain:
753 (1) the name and address of the person making payments;
754 (2) the date and the amount of each payment made;
755 (3) the date and amount of each withdrawal and to whom paid; and
756 (4) the name of the bank or trust company depository.
757 Section 32. Section 58-9-708 is enacted to read:
758 58-9-708. Audits.
759 (1) (a) The division may at any time:
760 (i) audit records of the provider; and
761 (ii) inspect records of the provider.
762 (b) The provider or trustee shall make available to the division for examination,
763 inspection, or auditing all records pertaining to the accounts relating to:
764 (i) any contract sold under this chapter; and
765 (ii) any trust established under this chapter.
766 (2) (a) The director may employ experts from outside the division if special need exists
767 to perform examinations, inspections, and audits under this section.
768 (b) The provider shall be responsible for payment to the division of all reasonable and
769 necessary costs related to the employment of experts under this section.

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- 26 - 770 Section 33. Section 63-55-258 is amended to read:
771 63-55-258. Repeal dates, Title 58.
772 (1) Title 58, Chapter 3a, Architects Licensing Act, is repealed July 1, 2003.
773 (2) Title 58, Chapter 5a, Podiatric Physician Licensing Act, is repealed July 1, 2007.
774 (3) Title 58, Chapter 9, Funeral Services Licensing Act, is repealed July 1, 2008.
775 (4) Title 58, Chapter 13, Health Care Providers Immunity from Liability Act, is
776 repealed July 1, 2006.
777 (5) Title 58, Chapter 15, Health Facility Administrator Act, is repealed July 1, 2005.
778 (6) Title 58, Chapter 16a, Utah Optometry Practice Act, is repealed July 1, 2009.
779 (7) Title 58, Chapter 17a, Pharmacy Practice Act, is repealed July 1, 2006.
780 (8) Title 58, Chapter 20a, Environmental Health Scientist Act, is repealed July 1, 2003.
781 (9) Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors
782 Licensing Act, is repealed July 1, 2005.
783 (10) Title 58, Chapter 24a, Physical Therapist Practice Act, is repealed July 1, 2003.
784 (11) Title 58, Chapter 26a, Certified Public Accountant Licensing Act, is repealed July
785 1, 2007.
786 (12) Title 58, Chapter 28, Veterinary Practice Act, is repealed July 1, 2004.
787 (13) Title 58, Chapter 31b, Nurse Practice Act, is repealed July 1, 2005.
788 (14) Title 58, Chapter 37, Utah Controlled Substances Act, is repealed July 1, 2007.
789 (15) Title 58, Chapter 37a, Utah Drug Paraphernalia Act, is repealed July 1, 2007.
790 (16) Title 58, Chapter 37b, Imitation Controlled Substances Act, is repealed July 1,
791 2007.
792 (17) Title 58, Chapter 40, Recreational Therapy Practice Act, is repealed July 1, 2005.
793 (18) Title 58, Chapter 41, Speech-language Pathology and Audiology Licensing Act, is
794 repealed July 1, 2009.
795 (19) Title 58, Chapter 42a, Occupational Therapy Practice Act, is repealed July 1,
796 2005.
797 (20) Title 58, Chapter 44a, Nurse Midwife Practice Act, is repealed July 1, 2010.
798 (21) Title 58, Chapter 46a, Hearing Instrument Specialist Licensing Act, is repealed
799 July 1, 2003.
800 (22) Title 58, Chapter 47b, Massage Therapy Practice Act, is repealed July 1, 2004.

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- 27 - 801 (23) Title 58, Chapter 49, Dietitian Certification Act, is repealed July 1, 2005.
802 (24) Title 58, Chapter 53, Landscape Architects Licensing Act, is repealed July 1,
803 2008.
804 [(25) Title 58, Chapter 58, Preneed Funeral Arrangement Act, is repealed July 1,
805 2011.]
806 [(26)] (25) Title 58, Chapter 59, Professional Employer Organization Licensing Act, is
807 repealed July 1, 2007.
808 [(27)] (26) Title 58, Chapter 66, Utah Professional Boxing Regulation Act, is repealed
809 July 1, 2005.
810 [(28)] (27) Title 58, Chapter 67, Utah Medical Practice Act, is repealed July 1, 2006.
811 [(29)] (28) Title 58, Chapter 68, Utah Osteopathic Medical Practice Act, is repealed
812 July 1, 2006.
813 [(30)] (29) Title 58, Chapter 69, Dentist and Dental Hygienist Practice Act, is repealed
814 July 1, 2006.
815 [(31)] (30) Title 58, Chapter 71, Naturopathic Physician Practice Act, is repealed July
816 1, 2006.
817 [(32)] (31) Title 58, Chapter 72, Acupuncture Licensing Act, is repealed July 1, 2007.
818 [(33)] (32) Title 58, Chapter 73, Chiropractic Physician Practice Act, is repealed July
819 1, 2006.
820 Section 34. Section 75-1-107 is amended to read:
821 75-1-107. Evidence of death or status.
822 (1) In addition to the rules of evidence in courts of general jurisdiction, the following
823 rules relating to a determination of death and status apply:
824 [(1)] (a) Death occurs when an individual is determined to be dead as provided in Title
825 26, Chapter 34, Uniform Determination of Death Act.
826 [(2)] (b) A certified or authenticated copy of a death certificate purporting to be issued
827 by an official or agency of the place where the death purportedly occurred is prima facie
828 evidence of the fact, place, date, and time of death and the identity of the decedent.
829 [(3)] (c) A certified or authenticated copy of any record or report of a governmental
830 agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima
831 facie evidence of the status and of the dates, circumstances, and places disclosed by the record

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833 [(4)] (d) In the absence of prima facie evidence of death under Subsection [(2) or (3)]
834 (1)(b) or (c), the fact of death may be established by clear and convincing evidence, including
835 circumstantial evidence.
836 [(5)] (e) An individual whose death is not established under Subsection (1)[, (2), (3),]
837 (a), (b), (c) or [(4)] (d) who is absent for a continuous period of five years, during which the
838 individual has not been heard from, and whose absence is not satisfactorily explained after
839 diligent search or inquiry, is presumed to be dead. The individual's death is presumed to have
840 occurred at the end of the period unless there is sufficient evidence for determining that death
841 occurred earlier.
842 [(6)] (f) In the absence of evidence disputing the time of death stated on a document
843 described in Subsection [(2) or (3)] (1)(b) or (c), a document described in Subsection [(2) or
844 (3)] (1)(b) or (c) that states a time of death 120 hours or more after the time of death of another
845 individual, however the time of death of the other individual is determined, establishes by clear
846 and convincing evidence that the individual survived the other individual by 120 hours.
847 (2) The right and duty to control the disposition of a deceased person shall be governed
848 by Sections 58-9-601 through 58-9-605 .
849 Section 35. Section 75-1-201 is amended to read:
850 75-1-201. General definitions.
851 Subject to additional definitions contained in the subsequent chapters that are
852 applicable to specific chapters, parts, or sections, and unless the context otherwise requires, in
853 this code:
854 (1) "Agent" includes an attorney-in-fact under a durable or nondurable power of
855 attorney, an individual authorized to make decisions concerning another's health care, and an
856 individual authorized to make decisions for another under a natural death act.
857 (2) "Application" means a written request to the registrar for an order of informal
858 probate or appointment under Title 75, Chapter 3, Part 3, Informal Probate and Appointment
859 Proceedings.
860 (3) "Beneficiary," as it relates to trust beneficiaries, includes a person who has any
861 present or future interest, vested or contingent, and also includes the owner of an interest by
862 assignment or other transfer; as it relates to a charitable trust, includes any person entitled to

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- 29 - 863 enforce the trust; as it relates to a "beneficiary of a beneficiary designation," refers to a
864 beneficiary of an insurance or annuity policy, of an account with POD designation, of a security
865 registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar
866 benefit plan, or other nonprobate transfer at death; and, as it relates to a "beneficiary designated
867 in a governing instrument," includes a grantee of a deed, a devisee, a trust beneficiary, a
868 beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of
869 appointment, and a person in whose favor a power of attorney or a power held in any
870 individual, fiduciary, or representative capacity is exercised.
871 (4) "Beneficiary designation" refers to a governing instrument naming a beneficiary of
872 an insurance or annuity policy, of an account with POD designation, of a security registered in
873 beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or
874 other nonprobate transfer at death.
875 (5) "Child" includes any individual entitled to take as a child under this code by
876 intestate succession from the parent whose relationship is involved and excludes any person
877 who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
878 (6) "Claims," in respect to estates of decedents and protected persons, includes
879 liabilities of the decedent or protected person, whether arising in contract, in tort, or otherwise,
880 and liabilities of the estate which arise at or after the death of the decedent or after the
881 appointment of a conservator, including funeral expenses and expenses of administration.
882 "Claims" does not include estate or inheritance taxes, or demands or disputes regarding title of
883 a decedent or protected person to specific assets alleged to be included in the estate.
884 (7) "Conservator" means a person who is appointed by a court to manage the estate of a
885 protected person.
886 (8) "Court" means any of the courts of record in this state having jurisdiction in matters
887 relating to the affairs of decedents.
888 (9) "Descendant" of an individual means all of his descendants of all generations, with
889 the relationship of parent and child at each generation being determined by the definition of
890 child and parent contained in this title.
891 (10) "Devise," when used as a noun, means a testamentary disposition of real or
892 personal property and, when used as a verb, means to dispose of real or personal property by
893 will.

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- 30 - 894 (11) "Devisee" means any person designated in a will to receive a devise. For the
895 purposes of Title 75, Chapter 3, Probate of Wills and Administration, in the case of a devise to
896 an existing trust or trustee, or to a trustee in trust described by will, the trust or trustee is the
897 devisee, and the beneficiaries are not devisees.
898 (12) "Disability" means cause for a protective order as described by Section 75-5-401 .
899 (13) "Distributee" means any person who has received property of a decedent from his
900 personal representative other than as a creditor or purchaser. A testamentary trustee is a
901 distributee only to the extent of distributed assets or increment thereto remaining in his hands.
902 A beneficiary of a testamentary trust to whom the trustee has distributed property received from
903 a personal representative is a distributee of the personal representative. For purposes of this
904 provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to
905 the extent of the devised assets.
906 (14) "Estate" includes the property of the decedent, trust, or other person whose affairs
907 are subject to this title as originally constituted and as it exists from time to time during
908 administration.
909 (15) "Exempt property" means that property of a decedent's estate which is described in
910 Section 75-2-403 .
911 (16) "Fiduciary" includes a personal representative, guardian, conservator, and trustee.
912 (17) "Foreign personal representative" means a personal representative of another
913 jurisdiction.
914 (18) "Formal proceedings" means proceedings conducted before a judge with notice to
915 interested persons.
916 (19) "Governing instrument" means a deed, will, trust, insurance or annuity policy,
917 account with POD designation, security registered in beneficiary form (TOD), pension,
918 profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of
919 appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of
920 any similar type.
921 (20) "Guardian" means a person who has qualified as a guardian of a minor or
922 incapacitated person pursuant to testamentary or court appointment, but excludes one who is
923 merely a guardian ad litem.
924 (21) "Heirs," except as controlled by Section 75-2-711 , means persons, including the

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926 property of a decedent.
927 (22) "Incapacitated person" means any person who is impaired by reason of mental
928 illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic
929 intoxication, or other cause, except minority, to the extent of lacking sufficient understanding
930 or capacity to make or communicate responsible decisions.
931 (23) "Informal proceedings" mean those conducted without notice to interested persons
932 by an officer of the court acting as a registrar for probate of a will or appointment of a personal
933 representative.
934 (24) "Interested person" includes heirs, devisees, children, spouses, creditors,
935 beneficiaries, and any others having a property right in or claim against a trust estate or the
936 estate of a decedent, ward, or protected person. It also includes persons having priority for
937 appointment as personal representative and other fiduciaries representing interested persons.
938 The meaning as it relates to particular persons may vary from time to time and shall be
939 determined according to the particular purposes of, and matter involved in, any proceeding.
940 (25) "Issue" of a person means descendant as defined in Subsection (9).
941 (26) "Joint tenants with the right of survivorship" and "community property with the
942 right of survivorship" includes coowners of property held under circumstances that entitle one
943 or more to the whole of the property on the death of the other or others, but excludes forms of
944 coownership registration in which the underlying ownership of each party is in proportion to
945 that party's contribution.
946 (27) "Lease" includes an oil, gas, or other mineral lease.
947 (28) "Letters" includes letters testamentary, letters of guardianship, letters of
948 administration, and letters of conservatorship.
949 (29) "Minor" means a person who is under 18 years of age.
950 (30) "Mortgage" means any conveyance, agreement, or arrangement in which property
951 is used as security.
952 (31) "Nonresident decedent" means a decedent who was domiciled in another
953 jurisdiction at the time of his death.
954 (32) "Organization" includes a corporation, limited liability company, business trust,
955 estate, trust, partnership, joint venture, association, government or governmental subdivision or

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957 (33) "Parent" includes any person entitled to take, or who would be entitled to take if
958 the child died without a will, as a parent under this code by intestate succession from the child
959 whose relationship is in question and excludes any person who is only a stepparent, foster
960 parent, or grandparent.
961 (34) "Payor" means a trustee, insurer, business entity, employer, government,
962 governmental agency or subdivision, or any other person authorized or obligated by law or a
963 governing instrument to make payments.
964 (35) "Person" means an individual or an organization.
965 (36) (a) "Personal representative" includes executor, administrator, successor personal
966 representative, special administrator, and persons who perform substantially the same function
967 under the law governing their status.
968 (b) "General personal representative" excludes special administrator.
969 (37) "Petition" means a written request to the court for an order after notice.
970 (38) "Proceeding" includes action at law and suit in equity.
971 (39) "Property" includes both real and personal property or any interest therein and
972 means anything that may be the subject of ownership.
973 (40) "Protected person" means a person for whom a conservator has been appointed. A
974 "minor protected person" means a minor for whom a conservator has been appointed because
975 of minority.
976 (41) "Protective proceeding" means a proceeding described in Section 75-5-401 .
977 (42) "Registrar" refers to the official of the court designated to perform the functions of
978 registrar as provided in Section 75-1-307 .
979 (43) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of
980 indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in
981 payments out of production under such a title or lease, collateral trust certificate, transferable
982 share, voting trust certificate, and, in general, any interest or instrument commonly known as a
983 security, or any certificate of interest or participation, any temporary or interim certificate,
984 receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of
985 the foregoing.
986 (44) "Settlement," in reference to a decedent's estate, includes the full process of

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988 (45) "Special administrator" means a personal representative as described in Sections
989 75-3-614 through 75-3-618 .
990 (46) "State" means a state of the United States, the District of Columbia, the
991 Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction
992 of the United States.
993 (47) "Successor personal representative" means a personal representative, other than a
994 special administrator, who is appointed to succeed a previously appointed personal
995 representative.
996 (48) "Successors" means persons, other than creditors, who are entitled to property of a
997 decedent under the decedent's will or this title.
998 (49) "Supervised administration" refers to the proceedings described in Title 75,
999 Chapter 3, Part 5, Supervised Administration.
1000 (50) "Survive," except for purposes of Part 3 of Article VI, Uniform TOD Security
1001 Registration Act, means that an individual has neither predeceased an event, including the
1002 death of another individual, nor is considered to have predeceased an event under Section
1003 75-2-104 or 75-2-702 . The term includes its derivatives, such as "survives," "survived,"
1004 "survivor," and "surviving."
1005 (51) "Testacy proceeding" means a proceeding to establish a will or determine
1006 intestacy.
1007 (52) "Testator" includes an individual of either sex.
1008 (53) "Trust" includes any express trust, private or charitable, with additions thereto,
1009 wherever and however created. The term also includes a trust created or determined by
1010 judgment or decree under which the trust is to be administered in the manner of an express
1011 trust. The term excludes other constructive trusts, and it excludes resulting trusts,
1012 conservatorships, personal representatives, trust accounts as defined in Title 75, Chapter 6,
1013 Nonprobate Transfers, custodial arrangements pursuant to any Uniform Transfers To Minors
1014 Act, business trusts providing for certificates to be issued to beneficiaries, common trust funds,
1015 voting trusts, preneed funeral plans under Title 58, Chapter [58] 9, [Preneed] Funeral
1016 [Arrangement] Services Licensing Act, security arrangements, liquidation trusts, and trusts for
1017 the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or

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1019 escrowee for another.
1020 (54) "Trustee" includes an original, additional, or successor trustee, whether or not
1021 appointed or confirmed by the court.
1022 (55) "Ward" means a person for whom a guardian has been appointed. A "minor ward"
1023 is a minor for whom a guardian has been appointed solely because of minority.
1024 (56) "Will" includes codicil and any testamentary instrument which merely appoints an
1025 executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits
1026 the right of an individual or class to succeed to property of the decedent passing by intestate
1027 succession.
1028 Section 36. Repealer.
1029 This act repeals:
1030 Section 58-9-1, Short title.
1031 Section 58-9-2, Definitions.
1032 Section 58-9-3, Board.
1033 Section 58-9-4, License classifications.
1034 Section 58-9-5, Exemptions from licensure.
1035 Section 58-9-6, Qualifications for licensure.
1036 Section 58-9-7, Term of license -- Expiration -- Renewal.
1037 Section 58-9-8, Continuing education.
1038 Section 58-9-9, Limitation of term of funeral service apprentice license.
1039 Section 58-9-10, Supervision of funeral service apprentice.
1040 Section 58-9-11, Requirements for a funeral establishment.
1041 Section 58-9-12, Disclosure requirements.
1042 Section 58-9-13, Grounds for denial of license -- Disciplinary proceedings.
1043 Section 58-9-15, Inspection -- Right to access.
1044 Section 58-58-1, Short title.
1045 Section 58-58-2, Definitions.
1046 Section 58-58-3, Board -- Membership -- Duties.
1047 Section 58-58-4, License classifications -- Exemptions.
1048 Section 58-58-5, Qualifications for licensure.

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Senate 2^nd Reading Amendments 2-4-2003 sm/tcl 1049

Section 58-58-6, Term of license -- Expiration -- Renewal.
1050 Section 58-58-7, Grounds for denial of license -- Disciplinary proceedings.
1051 Section 58-58-8, Preneed contract requirements.
1052 Section 58-58-9, Payments to be held in trust -- Trustee qualifications.
1053 Section 58-58-10, Trust agreement.
1054 Section 58-58-11, Interest earned on trust funds.
1055 Section 58-58-12, Distribution of funds.
1056 Section 58-58-13, Annual reports concerning trust funds.
1057 Section 58-58-14, Records and reports of trustee -- Contents.
1058 Section 58-58-15, Audits.
1058a S Section 36. Coordination clause.
1058b IF THIS BILL AND S.B. 10, PRENEED FUNERAL ARRANGEMENT AMENDMENTS, BOTH PASS,
1058c IT IS THE INTENT OF THE LEGISLATURE THAT THE OFFICE OF LEGISLATIVE RESEARCH AND
1058d GENERAL COUNSEL, IN PREPARING THE UTAH CODE DATABASE FOR PUBLICATION, MERGE THE
1058e LANGUAGE FROM S.B. 10, SUBSECTION 58-58-8(7) INTO THIS BILL AS SUBSECTION 58-9-701(7). s