SB0285

SENATE BILL 285

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Cliff R. Pirtle and Crystal R. Diamond and Bill B. O'Neill and Siah Correa Hemphill

AN ACT

RELATING TO CREMATION; EXPANDING THE DEFINITION OF "CREMATION" TO INCLUDE ALKALINE HYDROLYSIS; MAKING TECHNICAL CHANGES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 24-12A-1 NMSA 1978 (being Laws 1993, Chapter 200, Section 1) is amended to read:

"24-12A-1. RIGHT TO AUTHORIZE CREMATION--DEFINITIONS.--

A. Any adult individual may authorize [his] the individual's own cremation and the lawful disposition of [his] the individual's cremated remains by:

(1) stating [his] the desire to be cremated in a written statement that is signed by the individual and notarized or witnessed by two persons; or

(2) including an express statement in [his] the individual's will indicating that the testator desired that [his] the individual's remains be cremated upon [his] death.

B. A personal representative acting pursuant to a will or [Article 3 of] Chapter 45, Article 3 NMSA 1978 or a funeral establishment, a commercial establishment, a direct disposition establishment or a crematory shall comply with a statement made in conformance with the provisions of Subsection A of this section. A statement that conforms to the provisions of Subsection A of this section is authorization to a personal representative, funeral establishment, commercial establishment, direct disposition establishment or crematory that the remains of the decedent are to be cremated. Statements dated prior to [the effective date of this act] April 5, 1993 are to be given effect if they meet the requirements of Subsection A of this section.

C. A personal representative, funeral establishment, commercial establishment, direct disposition establishment or crematory acting in reliance upon a document executed pursuant to the provisions of this section, who has no actual notice of revocation or contrary indication, is presumed to be acting in good faith.

D. No funeral establishment, commercial establishment, direct disposition establishment, crematory or employee of a funeral establishment, commercial establishment, direct disposition establishment or crematory or other person that relies in good faith on a statement written pursuant to this section shall be subject to liability for cremating the remains in accordance with the express instructions of a decedent. The written document is a complete defense to a cause of action by any person against any other person acting in accordance with the instructions of the decedent.

E. As used in this section:

(1) "commercial establishment" means an office, premises or place of business that provides for the practice of funeral service or direct disposition services exclusively to licensed funeral or direct disposition establishments;

(2) "cremate" means to reduce a dead human body by direct flame or alkaline hydrolysis to a residue that may include bone fragments; and

(3) "direct disposition establishment" means an office, premises or place of business that provides for the disposition of a dead human body as quickly as possible, without a funeral, graveside service, committal service or memorial service, whether public or private, and without embalming of the body unless embalming is required by the place of disposition."

SECTION 2. Section 58-17-3 NMSA 1978 (being Laws 2001, Chapter 149, Section 3) is amended to read:

"58-17-3. DEFINITIONS.--As used in the Endowed Care Cemetery Act:

A. "affiliate" means a corporation that is related to another corporation by shareholdings or other means of control and includes a subsidiary, parent or sibling corporation;

B. "burial park" means a tract of land that has been dedicated to the purposes of and used, and intended to be used, for the interment of remains in graves;

C. "care funds" means realty or personalty impressed with a trust by the terms of a gift, grant, contribution, payment, devise, bequest or contract, and income accumulated therefrom where legally so directed by the terms of the transaction by which the principal was established;

D. "cemetery" means a place dedicated to and used and intended to be used for the permanent interment of remains;

E. "cemetery authority" means a person that owns, operates, controls or manages a cemetery or holds lands for burial purposes;

F. "columbarium" means a structure or space in a structure used, or intended to be used, to contain cremated remains;

G. "cremated remains" means [remains after incineration in a crematory] any residue that may include bone fragments recovered after cremation;

H. "cremation" means the [irreversible process of reducing remains to bone fragments through intense heat and evaporation in a specifically designed furnace or retort and includes a mechanical or thermal process whereby the bone fragments are pulverized, or otherwise further reduced in size or quantity] reduction of a dead human body by direct flame or alkaline hydrolysis to cremated remains;

I. "crematory" means [a structure of most durable and lasting fireproof construction containing one or more specifically designed furnaces or retorts, used, or intended to be used, for] every place or premises that is devoted to or used for cremation and pulverization of cremated remains;

J. "crypt" means the chamber in a mausoleum of sufficient size to entomb the remains;

K. "depository institution" means an insured bank, thrift institution or credit union;

L. "director" means the director of the financial institutions division of the regulation and licensing department;

M. "endowed care" means the general maintenance of the cemetery area dedicated to endowed care, including the cutting and trimming of lawns, shrubs and trees at reasonable intervals, keeping all places where interments have been made in proper order and keeping in repair the drains, waterlines, roads, buildings, fences and other structures consistent with a well-maintained cemetery; "endowed care" includes overhead expenses necessary for the foregoing purposes, including maintenance of machinery, tools and equipment, compensation of employees for the performance of duties related to endowed care, including reasonable payments for employees' pension and other benefit plans, payment of reasonable and necessary insurance premiums, the maintenance of necessary records of lot ownership, transfers and burials and the administration of care funds in those instances where those administering the funds fail or refuse to act;

N. "endowed or perpetual care cemetery" means a cemetery or that designated portion of a cemetery for the benefit of which a care fund is established;

O. "entombment" means the permanent interment of remains in a crypt or vault;

P. "fraternal cemetery" means a cemetery owned, operated, controlled or managed by any fraternal organization or its auxiliary organizations, in which the sale of burial space is restricted principally to its members;

Q. "grave" means a space of ground in a burial park intended to be used for the permanent interment in the ground of remains;

R. "interment" means the permanent disposition of the remains by inurnment, entombment or burial;

S. "inurnment" means placing cremated remains in an urn;

T. "lot", "plot" or "burial space" means space in a cemetery owned by one or more individuals, an association or fraternal or other organization and used, or intended to be used, for the permanent interment of the remains of one or more deceased persons and includes adjoining graves, adjoining crypts or adjoining niches;

U. "mausoleum" means a structure or building of most durable and lasting fireproof construction used or intended to be used for the permanent interment in crypts of remains;

V. "municipal cemetery" means a cemetery owned, operated, controlled or managed by a incorporated or unincorporated political subdivision;

W. "niche" means a recess in a columbarium used, or intended to be used, for the permanent interment of cremated remains;

X. "no endowed care cemetery" means a cemetery for the benefit of which no care fund has been established;

Y. "plot owner", "owner" or "lot proprietor" means a person in whose name a burial plot is recorded in the office of the cemetery authority as owner of the exclusive right of burial, or who holds from the authority a conveyance of the exclusive rights of burial or a certificate of ownership of the exclusive right of burial;

Z. "religious cemetery" means a cemetery owned, operated, controlled or managed by a recognized church, religious society, association or denomination, or by a cemetery authority or a corporation administering, or through which is administered the secular matters of a recognized church, religious society, association or denomination;

AA. "remains" means the body of a deceased person; and

BB. "vault" means a container that is designed for placement in a grave space around a casket or urn."

SECTION 3. Section 61-32-3 NMSA 1978 (being Laws 1993, Chapter 204, Section 3, as amended) is amended to read:

"61-32-3. DEFINITIONS.--As used in the Funeral Services Act:

A. "board" means the board of funeral services;

B. "committal service" means a service at a place of interment or entombment that follows a funeral conducted at another location;

C. "cremains" means cremated remains;

D. "cremation" means the reduction of a dead human body by direct flame or alkaline hydrolysis to a residue that includes bone fragments;

E. "crematory" means every place or premises that is devoted to or used for cremation and pulverization of the cremains;

F. "crematory authority" means the individual who is ultimately responsible for the operation of a crematory;

G. "department" means the regulation and licensing department;

H. "direct disposer" means a person licensed to engage solely in providing direct disposition at a direct disposition establishment, licensed pursuant to the Funeral Services Act, as provided in that act;

I. "direct disposition" means only the disposition of a dead human body as quickly as possible, without a direct disposer performing or arranging a funeral, graveside service, committal service or memorial service, whether public or private, and without embalming of the body unless embalming is required by the place of disposition;

J. "direct supervision" means that the supervising funeral service practitioner is physically present with and in direct control of the person being trained;

K. "disposition" means the final disposal of a dead human body, whether it be by earth interment, above-ground interment or entombment, cremation, burial at sea or delivery to a medical school, when the medical school assumes complete responsibility for the disposal of the body following medical study;

L. "embalmer" means a person licensed to engage in embalming and preparing a dead human body for funeral service at a funeral establishment that is licensed pursuant to the Funeral Services Act;

M. "embalming" means the disinfection, preservation and restoration, when possible, of a dead human body by a licensed funeral service practitioner, licensed embalmer or a licensed funeral service intern under the supervision of a licensed funeral service practitioner;

N. "ennichement" means interment of cremains in a niche in a columbarium, whether in an urn or not;

O. "entombment" means interment of a casketed body or cremains in a crypt in a mausoleum;

P. "establishment" means every office, premises or place of business where the practice of funeral service or direct disposition is conducted or advertised as being conducted and includes commercial establishments that provide for the practice of funeral service or direct disposition services exclusively to licensed funeral or direct disposition establishments or a school of medicine;

Q. "funeral" means a period following death in which there is an organized, purposeful, time-limited, group-centered ceremony or rite, whether religious or not, with the body of the deceased present;

R. "funeral arranger" means a person licensed to engage in arrangements and directing of funeral services at a funeral establishment that is licensed pursuant to the Funeral Services Act;

S. "funeral merchandise" means that personal property offered for sale in connection with the transportation, funeralization or disposition of a dead human body, including the enclosure into which a dead human body is or cremains are directly placed, and excluding mausoleum crypts, interment enclosures preset in a cemetery and columbarium niches;

T. "funeral service intern" means a person licensed to be in training for the practice of funeral service under the supervision and instruction of a funeral service practitioner at a funeral establishment or commercial establishment, licensed pursuant to the Funeral Services Act;

U. "funeral service practitioner" means a person licensed to engage in the practice of funeral service at a funeral establishment or commercial establishment that is licensed pursuant to the Funeral Services Act;

V. "funeral services" means those immediate post-death activities related to a dead human body and its care and disposition, whether with or without rites or ceremonies; but "funeral services" does not include disposition of the body by a school of medicine following medical study;

W. "general supervision" means that the supervising funeral service practitioner is not necessarily physically present in the establishment with the person being trained but is available for advice and assistance;

X. "graveside service" means a funeral held at the graveside only, excluding a committal service that follows a funeral conducted at another location;

Y. "jurisprudence examination" means an examination prescribed by the board on the statutes, rules and regulations pertaining to the practice of funeral service or direct disposition, including the Funeral Services Act, the rules of the board, state health regulations governing human remains and the Vital Statistics Act;

Z. "licensee in charge" means a funeral service practitioner who is ultimately responsible for the conduct of a funeral or commercial establishment and its employees; or a direct disposer who is ultimately responsible for the conduct of a direct disposition establishment and its employees;

AA. "make arrangements" means advising or counseling about specific details for a funeral, graveside service, committal service, memorial service, disposition or direct disposition;

BB. "memorial service" means a gathering of persons for recognition of a death without the presence of the body of the deceased;

CC. "practice of funeral service" means those activities allowed under the Funeral Services Act by a funeral service practitioner, funeral arranger, embalmer or funeral service intern; and

DD. "pulverization" means the process that reduces cremains to a granular substance."

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