Chapter 97 — Rights
and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
New sections of law were added by
legislative action to this ORS chapter or to a series within this ORS chapter
by the Legislative Assembly during its 2012 regular session. See sections in
the following 2012 Oregon Laws chapters: 2012
Session Laws 0007; 2012
Session Laws 0033
2011 EDITION
CEMETERIES, HUMAN BODIES AND ANATOMICAL
GIFTS
PROPERTY RIGHTS AND TRANSACTIONS
GENERAL PROVISIONS
97.010 Definitions
97.020 Exemption
of certain organizations and cemeteries from certain sections of chapter
97.030 Vested
rights not acquired
97.040 Private
family burial grounds
AUTOPSIES
97.082 Consent
for certain autopsies; form
DISPOSITION OF HUMAN BODIES
97.110 Human
remains not to be attached
97.120 Human
remains to be deposited in accordance with ORS 97.010 to 97.040, 97.110 to
97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990
97.130 Right
to control disposition of remains; delegation
97.145 Liability
for failure to conform to written instrument directing control of remains
97.150 Disposition
of cremated remains; procedures; notice; limitations on liability of cemetery
authority, crematory operator or funeral service provider
97.153 Diagnostic
or therapeutic radioisotopes in body
97.160 Duty
of hospital or sanitarium to notify before sending remains to undertaker;
procedures
97.170 Disposition
of unclaimed body of deceased person; rules
97.180 Period
within which body may not be used
97.190 Post-mortem
examination of body
97.200 Disposition
of remains after educational use thereof
97.210 Exceptions
to application of ORS 97.170 to 97.200; rules
97.220 Disinterment
DEDICATION TO CEMETERY PURPOSES;
PLATTINGS
97.310 Survey
and subdivision of land; map or plat of mausoleum or columbarium; access
easement
97.320 Filing
map or plat and declaration of dedication of land to cemetery purposes
97.330 When
dedication is complete
97.340 Effect
of dedication
97.350 Dedication
to cemetery purposes not invalid
97.360 Resurvey
and alteration in shape or size; vacation of streets, walks, driveways and
parks and replatting into lots
97.370 Fixing
date of hearing; notice
97.380 Hearing;
order allowing replatting
97.390 Assessment
of benefits and damages
97.400 Disposal
of newly created lots; disposition and use of proceeds from sale; failure of
owner to perform duties
97.410 Right
of adjacent lot owner upon vacation of way
97.420 Effect
of failure to object
97.430 Declaration
of exercise of police power and right of eminent domain
97.440 Removal
of dedication
97.445 Vacating
county interest in cemetery real property
97.450 Discontinuance
of cemetery and removal of remains and markers
97.460 Requirements
for establishment of cemetery or burial park
SALES AND RIGHTS IN RESPECT OF CEMETERY
PLOTS
97.510 Sale
and conveyance of plots by cemetery authority
97.520 Sale
or offer to sell cemetery plot upon promise of resale at financial profit
97.530 Commission,
bonus or rebate for sale of plot or services
97.540 Commission,
bonus or rebate for recommendation of cemetery
97.550 Plots
are indivisible
97.560 Presumption
of sole ownership in grantee of plot
97.570 Spouse
has vested right of interment
97.580 Divestiture
of spouse’s right of interment
97.590 Transfer
of plot or right of interment
97.600 Descent
of plot
97.610 Determining
occupant of burial plot having co-owners
97.620 Death
of co-owner; authorization to use plot under directions of surviving owners
97.630 Family
plots; order of occupation
97.640 Waiver
or termination of vested right of interment
97.650 Limitations
upon vested right of interment
NONPROFIT CORPORATIONS
97.660 Lands
of cemetery or crematory corporation; exemption from execution, taxation and
condemnation
97.665 Revenues;
restrictions on uses of revenue
97.670 Selling
land unsuited for burials
97.675 Burial
lots or space; use; exemption from taxation, execution and liens; lien for
purchase price of gravestone
97.680 Recording
plan; power to improve and regulate grounds
CEMETERY MANAGEMENT
97.710 Power
of cemetery to make rules and regulations
97.720 Record
of interments and cremations; inspection
97.730 Gifts
and bequests in trust for cemeteries
INDIAN GRAVES AND PROTECTED OBJECTS
97.740 Definitions
for ORS 97.740 to 97.760
97.745 Prohibited
acts; application; notice
97.750 Permitted
acts; notice
97.760 Civil
action by Indian tribe or member; time for commencing action; venue; damages;
attorney fees
OREGON COMMISSION ON HISTORIC CEMETERIES
97.772 Definition
of “historic cemetery”
97.774 Oregon
Commission on Historic Cemeteries; terms
97.776 Commission
members; nominations
97.778 Chairperson;
quorum; meetings
97.780 Duties
97.782 Listing
of historic cemeteries; form
97.784 Executive
secretary; support services
CEMETERY CARE
97.810 Endowment
care and nonendowed care cemeteries
97.820 Placing
cemetery under endowed care; deposit; commingling endowment and special care
funds; trustee or custodian of fund
97.825 Suits
to enforce endowed care statutes; attorney fees
97.830 Investment
and reinvestment of principal of endowed care funds; use and application of
income
97.835 Limitation
of duties and liability of trustee
97.840 Cemetery
authority authorized to receive and hold gifts of property; disposition of
gifts
97.850 Endowment
and special care funds are charitable
97.860 Agreements
for care
97.865 Application
of ORS 97.810 to 97.865 to religious, county and city cemeteries
97.870 Unused
and uncared for portions of cemetery declared common nuisances
97.880 Resolution
declaring a nuisance
97.890 Complaint
97.900 Summons
97.910 Disuse
as prima facie evidence of abandonment
97.920 Judgment
declaring nuisance, authorizing abatement and creating and foreclosing lien
PREARRANGEMENT SALES AND PRECONSTRUCTION
SALES
97.923 Definitions
for ORS 97.923 to 97.949
97.925 Purpose
97.926 Rulemaking
authority
97.927 Applicability
of ORS 97.923 to 97.949
97.929 Exceptions
to ORS 97.923 to 97.949
97.931 Registration
of salesperson for endowment care cemeteries, preconstruction sales and
prearrangement sales; rules; background check; civil penalties
97.933 Certification
of provider of prearrangement or preconstruction sales; annual reports; audits;
fees
97.935 Registration
of master trustees; annual reports; annual audits; fees
97.936 Emergency
orders of suspension or restriction
97.937 Deposit
of trust funds made by endowment care cemeteries
97.939 Prearrangement
or preconstruction sales contracts; contents; delivery
97.941 Prearrangement
or preconstruction trust fund deposits
97.942 Appointment
of receiver; criteria
97.943 Distributions
from prearrangement trust fund deposits
97.944 Distributions
from preconstruction trust fund deposits
97.945 Funeral
and Cemetery Consumer Protection Trust Fund; fee; rules
97.946 Advertising
and marketing prohibitions
97.947 Examination
of providers and master trustees by director; subpoena power; depositions
97.948 Grounds
for discipline by director for violation of ORS 97.923 to 97.949; suspension
and revocation of certificate or registration; civil penalties; notification of
board
97.949 Notification
by director to appropriate federal, state or local law enforcement officer of
violation of ORS 97.923 to 97.949
REVISED UNIFORM ANATOMICAL GIFT ACT
97.951 Short
title
97.953 Definitions
97.955 Purpose
of anatomical gift; persons authorized to make gift
97.957 Methods
of making anatomical gift before death of donor
97.959 Revocation
or amendment of anatomical gift by donor or agent or guardian of donor
97.961 Refusal
to make anatomical gift; effect of refusal
97.963 Effect
of making, amending or revoking anatomical gift
97.965 Persons
authorized to make anatomical gift of body or body part of decedent
97.967 Methods
for making, amending or revoking anatomical gift of body or body part of
decedent by authorized person
97.969 Authorized
recipients of anatomical gifts; purposes for which gift may be used
97.970 Search
for document of anatomical gift or refusal; duty to send document or refusal to
hospital
97.971 Delivery
of document of gift or refusal not required; right to examine
97.972 Rights
and duties of procurement organizations and others; authorized examinations
97.973 Coordination
of procurement and use of anatomical gifts
97.974 Immunity
of persons acting in accordance with ORS 97.951 to 97.982
97.976 Law
governing validity of document of gift; presumption of validity
97.977 Donor
registry; duty of Department of Transportation to cooperate with donor registry
97.978 Resolution
of conflict between potential anatomical gift and advance directive
97.979 Cooperation
between medical examiner and procurement organization
97.980 Facilitation
of anatomical gift from decedent whose body is under jurisdiction of medical
examiner
97.981 Purchase
or sale of body parts prohibited
97.982 Alteration
of document of anatomical gift prohibited
97.983 Relation
to Electronic Signatures in Global and National Commerce Act
ANATOMICAL GIFTS
97.984 Liability
of executor who carries out anatomical gift
97.985 Transplants
not covered by implied warranty
FEDERAL AID FOR CEMETERIES
97.987 Department
of Transportation use of federal moneys for cemetery care
PENALTIES
97.990 Penalties
97.992 Penalties
for ORS 97.937
97.994 Penalties
for ORS 97.931, 97.933 and 97.941
GENERAL PROVISIONS
97.010 Definitions.
As used in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920, 97.923 to 97.949, 97.990 and 97.994:
(1)
“Burial” means the placement of human remains in a grave or lawn crypt.
(2)
“Burial park” means a tract of land for the burial of human remains, used, or
intended to be used, and dedicated for cemetery purposes.
(3)
“Burial right” means the right to use a grave, mausoleum, columbarium, ossuary
or scattering garden for the interment or other disposition of human remains.
(4)
“Cemetery” means a place:
(a)
Dedicated to and used, or intended to be used, for a permanent memorial or the
permanent interment of human remains; and
(b)
That may contain a mausoleum, crypt or vault interment, a columbarium, an
ossuary, a cenotaph, a scattering garden, any other structure or place used or
intended to be used for the interment or disposition of human remains or any
combination of these structures or places.
(5)
“Cemetery association” means a corporation or association authorized by its
articles of incorporation to conduct the business of a cemetery, but does not include
a corporation sole or a charitable, eleemosynary association or corporation.
(6)
“Cemetery authority” means a person who owns or controls cemetery lands or
property, including but not limited to a cemetery corporation, association or
corporation sole.
(7)
“Cemetery business” and “cemetery purpose” are used interchangeably and mean
any business or purpose requisite or incident to, or necessary for
establishing, maintaining, operating, improving or conducting a cemetery,
interring human remains, and the care, preservation and embellishment of
cemetery property.
(8)
“Cemetery merchandise” means personal property offered for sale or sold for use
in connection with the final disposition, memorialization or interment of human
remains. “Cemetery merchandise” includes, but is not limited to, an outer
burial container and a memorial.
(9)
“Cemetery services” means services provided by a cemetery authority for
interment or scattering, and installation of cemetery merchandise.
(10)
“Cenotaph” means a place, the primary purpose of which is to provide an area
where a person may pay to establish a memorial to honor a person whose remains
may be interred elsewhere or whose remains cannot be recovered.
(11)
“Columbarium” means a structure or room containing receptacles for permanent
inurnment of cremated remains in a place used, or intended to be used, and
dedicated for cemetery purposes.
(12)
“Cremated remains” means the remains of a cremated human body after completion
of the cremation process.
(13)
“Cremation” means the technical process, using direct flame and heat, that
reduces human remains to bone fragments.
(14)
“Crematory” means a structure containing a retort for the reduction of bodies
of deceased persons to cremated remains.
(15)
“Crypt” or “vault” means a space in a mausoleum of sufficient size used, or
intended to be used, to entomb uncremated human remains.
(16)
“Directors” or “governing body” means the board of directors, board of trustees
or other governing body of a cemetery association.
(17)
“Endowment care” means the general care and maintenance of developed portions
of a cemetery and memorials erected thereon financed from the income of a trust
fund.
(18)
“Entombment” means the placement of human remains in a crypt or vault.
(19)
“Funeral merchandise” means personal property offered for sale or sold for use
in connection with funeral services. “Funeral merchandise” includes, but is not
limited to, acknowledgment cards, alternative containers, caskets, clothing,
cremation containers, cremation interment containers, flowers, memory folders,
monuments, outer burial containers, prayer cards, register books and urns.
(20)
“Funeral services” means services customarily provided by a funeral service
practitioner including, but not limited to, care and preparation of human
remains for final disposition, professional services relating to a funeral or
an alternative to a funeral, transportation of human remains, limousine
services, use of facilities or equipment for viewing human remains, visitation,
memorial services or services that are used in connection with a funeral or
alternative to a funeral, coordinating or conducting funeral rites or
ceremonies, and other services provided in connection with a funeral,
alternative to a funeral or final disposition of human remains.
(21)
“Grave” means a space of ground in a burial park used, or intended to be used,
for burial of the remains of one person.
(22)
“Human remains” or “remains” means the body of a deceased person in any stage
of decomposition or after cremation.
(23)
“Interment” means the disposition of human remains by inurnment, entombment or
burial.
(24)
“Inurnment” means the placement of cremated remains in a receptacle and the
deposit of the receptacle in a niche.
(25)
“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 therein of the remains of one
or more deceased persons. Such terms include and apply with like effect to one,
or more than one, adjoining grave, crypt, vault or niche.
(26)
“Mausoleum” means a structure substantially exposed above ground for the
entombment of human remains in crypts or vaults in a place used, or intended to
be used, and dedicated for cemetery purposes.
(27)
“Memorial” means a product, other than a mausoleum or columbarium, used for
identifying an interment space or for commemoration of the life, deeds or
career of a decedent including, but not limited to, an ossuary, monument,
marker, niche plate, urn garden plaque, crypt plate, cenotaph, marker bench or
vase.
(28)
“Niche” means a recess usually in a columbarium used, or intended to be used,
for the inurnment of the cremated remains of one or more persons.
(29)
“Ossuary” means a receptacle used for the communal placement of cremated
remains without benefit of an urn or any other container in which cremated
remains may be commingled with other cremated remains and are nonrecoverable.
(30)
“Plot owner” or “owner” means any person identified in the records of the
cemetery authority as owner of the burial rights to a burial plot, or who holds
a certificate of ownership conveyed from the cemetery authority of the burial
rights in a particular lot, plot or space.
(31)
“Scattering” means the lawful dispersion of cremated remains that need not be
associated with an interment right or issuance of a deed, that may be recorded
only as a service that has taken place and may not be recorded on the permanent
records of the cemetery authority.
(32)
“Scattering garden” means a location set aside within a cemetery that is used
for the spreading or broadcasting of cremated remains that have been removed
from their container and can be mixed with or placed on top of the soil or ground
cover or buried in an underground receptacle on a commingled basis and that are
nonrecoverable.
(33)
“Special care” means any care in excess of endowed care in accordance with the
specific directions of a donor of funds. [Amended by 1955 c.545 §1; 1965 c.396 §1;
2007 c.661 §1; 2009 c.709 §10]
97.020 Exemption of certain organizations
and cemeteries from certain sections of chapter.
(1) The provisions of ORS 97.030, 97.120, 97.310 to 97.350, 97.360 (1), 97.510
and 97.550 relating to private cemeteries do not apply to:
(a)
Any religious or eleemosynary corporation, church, religious society or
denomination, corporation sole administering temporalities of any church or
religious society or denomination or any cemetery that such entity organizes,
controls or operates.
(b)
Any county or city cemetery.
(c)
A historic cemetery, as defined in ORS 97.772, operated and maintained by a
nonprofit organization described in section 501(c)(3) of the Internal Revenue
Code that is exempt from income tax under section 501(a) of the Internal
Revenue Code.
(2)
The provisions of ORS 97.810 to 97.865 relating to private cemeteries do not
apply to:
(a)
Any religious or eleemosynary corporation, church, religious society or
denomination, corporation sole administering temporalities of any church or
religious society or denomination or any cemetery that such entity organizes,
controls or operates, unless the cemetery authority for an entity described in
this paragraph elects to subject itself to ORS 97.810 to 97.865.
(b)
Any county or city cemetery, unless the county or city elects to subject itself
to ORS 97.810 to 97.865.
(c)
A historic cemetery, as defined in ORS 97.772, operated and maintained by a
nonprofit organization described in section 501(c)(3) of the Internal Revenue
Code that is exempt from income tax under section 501(a) of the Internal
Revenue Code. [Amended by 1955 c.473 §1; 1997 c.167 §1; 2011 c.162 §1]
97.030 Vested rights not acquired.
No cemetery authority or person having a right of sepulture or any other right
under ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920 and 97.990 acquires any vested right by virtue thereof which the
Legislative Assembly may not subsequently amend, alter or repeal.
97.040 Private family burial grounds.
Except for ORS 97.730, 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730,
97.810 to 97.920 and 97.990 do not apply to private family burial grounds where
lots are not offered for sale.
97.050 [1977
c.183 §1; 1983 c.526 §4; 1985 c.747 §49; 1987 c.660 §16; 1989 c.1034 §8;
renumbered 127.605 in 1989]
97.055 [1977
c.183 §2; 1979 c.211 §1; 1983 c.526 §5; renumbered 127.610 in 1989]
97.060 [1977
c.183 §3; renumbered 127.615 in 1989]
97.065 [1977
c.183 §4; renumbered 127.620 in 1989]
97.070 [1977
c.183 §5; renumbered 127.625 in 1989]
97.075 [1977
c.183 §6; repealed by 1983 c.526 §7]
97.080 [1977
c.183 §7; renumbered 127.630 in 1989]
AUTOPSIES
97.082 Consent for certain autopsies;
form. (1) Except as provided in subsection
(2) of this section, whenever a person dies and no autopsy is ordered by a
medical examiner or district attorney pursuant to ORS 146.117, an autopsy may
not be conducted without the prior written consent of a person within the first
applicable class of the following listed classes:
(a)
The spouse of the decedent;
(b)
A son or daughter of the decedent 18 years of age or older;
(c)
Either parent of the decedent;
(d)
A brother or sister of the decedent 18 years of age or older;
(e)
A guardian of the decedent at the time of death;
(f)
A person in the next degree of kindred to the decedent;
(g)
The personal representative of the estate of the decedent; or
(h)
The person nominated as the personal representative of the decedent in the
decedent’s last will.
(2)(a)
Consent required under subsection (1) of this section must be granted on a
written autopsy consent form developed pursuant to subsection (3) of this
section.
(b)
If the person authorized by subsection (1) of this section to grant written
consent to conduct an autopsy is not available to grant written consent in
person, the authorized person may grant consent by completing the required
consent form and returning the signed form, by facsimile or other electronic
transmission, to the party requesting permission.
(3)
The Public Health Officer, in consultation with the State Medical Examiner,
shall develop and make available a standardized written autopsy consent form
that:
(a)
Grants the person specified in subsection (1) of this section the authority to:
(A)
Grant permission to conduct an unlimited autopsy;
(B)
Grant permission to conduct a limited autopsy and to specify what limitations
are imposed upon the autopsy; or
(C)
Refuse permission to conduct an autopsy.
(b)
Provides a section for the person specified in subsection (1) of this section
to submit specific instructions with respect to tests to be performed during
the autopsy and to the disposition of organs and tissue removed for purposes of
a limited autopsy.
(c)
Provides that the consent signature be accompanied by the signature of a
witness. [2003 c.416 §1]
Note: 97.082
was enacted into law by the Legislative Assembly but was not added to or made a
part of ORS chapter 97 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
97.083 [1983
c.526 §1; renumbered 127.635 in 1989]
97.084 [1983
c.526 §2; renumbered 127.640 in 1989]
97.085 [1977
c.183 §§8,9,10; renumbered 127.645 in 1989]
97.090 [1977
c.183 §11; renumbered 127.650 in 1989]
DISPOSITION OF HUMAN BODIES
97.110 Human remains not to be attached.
No person shall attach, detain or claim to detain any human remains for any
debt or demand or upon any pretended lien or charge.
97.120 Human remains to be deposited in
accordance with ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810
to 97.920 and 97.990. A cemetery authority shall
deposit or dispose of human remains as provided by ORS 97.010 to 97.040, 97.110
to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990.
97.130 Right to control disposition of
remains; delegation. (1) Any individual of sound mind
who is 18 years of age or older, by completion of a written signed instrument
or by preparing or prearranging with any funeral service practitioner licensed
under ORS chapter 692, may direct any lawful manner of disposition of the
individual’s remains. Except as provided under subsection (6) of this section,
disposition directions or disposition prearrangements that are prepaid or that
are filed with a funeral service practitioner licensed under ORS chapter 692
are not subject to cancellation or substantial revision.
(2)
A person within the first applicable listed class among the following listed
classes that is available at the time of death, in the absence of actual notice
of a contrary direction by the decedent as described under subsection (1) of
this section or actual notice of opposition by completion of a written
instrument by a member of the same class or a member of a prior class, may
direct any lawful manner of disposition of a decedent’s remains by completion
of a written instrument:
(a)
The spouse of the decedent.
(b)
A son or daughter of the decedent 18 years of age or older.
(c)
Either parent of the decedent.
(d)
A brother or sister of the decedent 18 years of age or older.
(e)
A guardian of the decedent at the time of death.
(f)
A person in the next degree of kindred to the decedent.
(g)
The personal representative of the estate of the decedent.
(h)
The person nominated as the personal representative of the decedent in the
decedent’s last will.
(i)
A public health officer.
(3)(a)
The decedent or any person authorized in subsection (2) of this section to
direct the manner of disposition of the decedent’s remains may delegate such
authority to any person 18 years of age or older.
(b)
Delegation of the authority to direct the manner of disposition of remains must
be made by completion of:
(A)
The written instrument described in subsection (7) of this section; or
(B)
A written instrument recognized by the Armed Forces of the United States, as
that term is defined in ORS 348.282, if the decedent died while serving in the
Armed Forces of the United States.
(c)
The person to whom the authority is delegated has the same authority under
subsection (2) of this section as the person delegating the authority.
(4)
If a decedent or the decedent’s designee issues more than one authorization or
direction for the disposal of the decedent’s remains, only the most recent
authorization or direction is binding.
(5)
A donation of anatomical gifts under ORS 97.951 to 97.982 takes priority over
directions for the disposition of a decedent’s remains under this section only
if the person making the donation is of a priority under subsection (1) or (2)
of this section the same as or higher than the priority of the person directing
the disposition of the remains.
(6)
If the decedent directs a disposition under subsection (1) of this section and
those financially responsible for the disposition are without sufficient funds
to pay for such disposition or the estate of the decedent has insufficient
funds to pay for the disposition, or if the direction is unlawful, the
direction is void and disposition shall be in accordance with the direction
provided by the person given priority in subsection (2) of this section and who
agrees to be financially responsible.
(7)
The signature of the individual delegating the authority to direct the manner
of disposition is required for the completion of the written instrument
required in subsection (3)(b)(A) of this section. The following form or a form
substantially similar shall be used by all individuals:
______________________________________________________________________________
APPOINTMENT OF
PERSON
TO MAKE
DECISIONS
CONCERNING
DISPOSITION
OF REMAINS
I,
__________________, appoint__________________, whose address is _______________
and whose telephone number is (___)_________, as the person to make all
decisions regarding the disposition of my remains upon my death for my burial
or cremation. In the event ____________ is unable to act, I appoint____________,
whose address is __________________ and whose telephone number is (___)_________,
as my alternate person to make all decisions regarding the disposition of my
remains upon my death for my burial or cremation.
It
is my intent that this Appointment of Person to Make Decisions Concerning
Disposition of Remains act as and be accepted as the written authorization
presently required by ORS 97.130 (or its corresponding future provisions) or
any other provision of Oregon Law, authorizing me to name a person to have
authority to dispose of my remains.
DATED
this ___ day of______,_____.
__________________
(Signature)
DECLARATION OF
WITNESSES
We
declare that ____________ is personally known to us, that he/she signed this
Appointment of Person to Make Decisions Concerning Disposition of Remains in
our presence, that he/she appeared to be of sound mind and not acting under
duress, fraud or undue influence, and that neither of us is the person so
appointed by this document.
Witnessed By:
_______________ Date: _____
Witnessed By:
_______________ Date: _____
______________________________________________________________________________
(8) Subject to the provisions of ORS
97.951 to 97.982, if disposition of the remains of a decedent has not been
directed and authorized under this section within 10 days after the date of the
death of the decedent, a public health officer may direct and authorize
disposition of the remains.
(9) Notwithstanding subsection (2) of this
section, a person arrested for or charged with criminal homicide by reason of
the death of the decedent may not direct the disposition of the decedent’s
remains. The disposition of the decedent’s remains shall be made in accordance
with the directions of an eligible person within the first applicable class
established under subsection (2) of this section.
(10) Notwithstanding subsections (2) and
(3) of this section, if the person who has the authority to direct the manner
of disposition of cremated remains pursuant to subsection (1) or (2) of this
section transfers any portion of the cremated remains to another person, the
recipient of the cremated remains has the authority to direct the manner of
disposition of the cremated remains in the recipient’s possession. [Amended by
1969 c.175 §10; 1969 c.591 §279; 1973 c.823 §97; 1995 c.717 §10; 1997 c.472 §1;
1999 c.201 §5; 2007 c.373 §1; 2007 c.681 §24; 2011 c.154 §1; 2011 c.164 §1]
97.132
[1961 c.674 §1; repealed by 1969 c.175 §12]
97.134
[1961 c.674 §§2,3; repealed by 1969 c.175 §12]
97.140
[Repealed by 1957 c.423 §1 (97.141 and 97.145 enacted in lieu of 97.140)]
97.141
[1957 c.423 §2 (97.141 and 97.145 enacted in lieu of 97.140); repealed by 1997
c.472 §13]
97.145
Liability for failure to conform to written instrument directing control of
remains. No cemetery authority, crematory
operator or licensed funeral service practitioner interring or cremating
remains pursuant to a written instrument signed by the decedent or a person
described in ORS 97.130 (2) shall be liable for any failure to conform to the
priority of control of remains provided in ORS 97.130, except when it shall
have received two or more conflicting written instruments prior to interment or
cremation of said remains. [1957 c.423 §3 (97.141 and 97.145 enacted in lieu of
97.140); 1997 c.472 §2]
97.150
Disposition of cremated remains; procedures; notice; limitations on liability
of cemetery authority, crematory operator or funeral service provider.
(1)(a) If the cemetery authority, crematory operator or licensed funeral
service practitioner has been authorized to cremate remains of a decedent
pursuant to ORS 97.130, the authorization must also contain further
instructions to the cemetery authority, crematory operator or licensed funeral
service practitioner as to the final disposition of the cremated remains.
(b) If the cremated remains are left in
the possession of the cemetery authority, crematory operator or licensed
funeral service practitioner and no instructions for final disposition are
given to the cemetery authority, crematory operator or licensed funeral service
practitioner within 180 days after the date of cremation, the cemetery
authority, crematory operator or licensed funeral service practitioner shall make
a reasonable effort to notify the person who has the authority to direct
disposition of the cremated remains under ORS 97.130 (2). The notice must state
that the cemetery authority, crematory operator or licensed funeral service
practitioner intends to dispose of the cremated remains unless the person who
has the authority to direct disposition of the cremated remains gives
instructions to the contrary to the cemetery authority, crematory operator or
licensed funeral service practitioner within 30 days after the date of the
notice.
(c) Reasonable effort to notify includes,
but is not limited to, notice, delivered personally or by certified mail,
return receipt requested, to the person who has the authority to direct
disposition of the cremated remains at the address of the person in the records
of the cemetery authority, crematory operator or licensed funeral service
practitioner.
(d) If the person who has the authority to
direct the disposition of the cremated remains has not given instructions for
the disposition of the cremated remains within 30 days after the date of the
notice, the cemetery authority, crematory operator or licensed funeral service
practitioner may dispose of the cremated remains as is legally practicable.
(2) A cemetery authority, crematory
operator or licensed funeral service practitioner is not liable in any civil or
criminal proceeding relating to cremated remains that have been left in the
possession of the cemetery authority, crematory operator or licensed funeral
service practitioner for a period of 180 days or more unless:
(a) The cemetery authority, crematory
operator or licensed funeral service practitioner has failed to make a
reasonable effort to notify the person who has the authority to direct
disposition of the cremated remains as described in subsection (1) of this
section;
(b) A written contract has been entered
into with the cemetery authority, crematory operator or licensed funeral
service practitioner for care of the cremated remains; or
(c) Permanent interment has been made.
(3) A cemetery authority is not liable in
any civil or criminal proceeding relating to cremated remains that have been
interred, scattered, placed in an ossuary or disposed of in any other manner
within the cemetery if the person who physically possesses the cremated remains
consents to the disposition.
(4) A cemetery authority is not liable in
any civil or criminal proceeding relating to cremated remains that have been
scattered within the cemetery without the knowledge of the cemetery authority.
The cemetery authority may dispose of cremated remains that have been scattered
within the cemetery without the knowledge of the cemetery authority as is
legally practicable.
(5) If the cemetery authority, crematory
operator or licensed funeral service practitioner has complied with this
section, then the cemetery authority, crematory operator or licensed funeral
service practitioner may dispose of the remains as is legally practicable. [Amended
by 1989 c.669 §1; 1997 c.472 §3; 2011 c.164 §2]
97.153
Diagnostic or therapeutic radioisotopes in body.
Notwithstanding section 14, chapter 653, Oregon Laws 1991, or ORS 469.525,
diagnostic or therapeutic radioisotopes remaining inside the uncremated body of
a deceased person may be buried, entombed or otherwise disposed of in a
cemetery or other lawful place for the burial, entombment or other disposal of
the uncremated body of the deceased person even though the body contains
low-level radioactive waste as defined under 42 U.S.C. 2021(b) as of January 1,
1995, by-product material as defined under 42 U.S.C. 2014 as of January 1,
1995, or special nuclear material exempted by the United States Nuclear
Regulatory Commission as of January 1, 1995, under authority of 42 U.S.C.
2077(d). [1995 c.252 §1]
Note:
97.153 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
97.160
Duty of hospital or sanitarium to notify before sending remains to undertaker;
procedures. (1) No hospital or sanitarium, or the
employees, agents or representatives thereof, shall send or cause to be sent to
any funeral service practitioner, undertaker, mortician or embalmer the remains
of any decedent without having complied with this section before final
disposition of the remains.
(2) If the admitting record contains the
name of a relative, friend or other person identified by the decedent in the
admitting record, or if the hospital or sanitarium is aware of the name of any
other person chargeable with the funeral expenses of the decedent, the hospital
or the sanitarium must notify the relative, friend or other person personally
or by certified mail, return receipt requested.
(3) If a hospital or sanitarium is unable
to give actual notice to a relative, friend or other person under the
provisions of subsection (2) of this section, the hospital or sanitarium must
publish a notice of death at least one time in a newspaper of general circulation
in the county where the death occurred, or, if there is no such newspaper, in a
newspaper most likely to give notice of the death to relatives and friends of
the decedent. The notice must contain the name of the decedent and the address
and phone number for the hospital or sanitarium.
(4) If the remains of the decedent are not
claimed within 10 days after the giving of notice under subsection (2) of this
section, or within 10 days after publication under subsection (3) of this
section if publication is made under subsection (3) of this section, the
hospital or sanitarium may arrange for the disposal of the remains of the
decedent without further notice in the manner specified by ORS 97.170 to
97.200.
(5) Nothing in this section limits or
governs the authority of any administrator or executor, trustee or other person
having a fiduciary relationship with the deceased or to the state, counties,
cities or towns in the disposition of the remains of a deceased person. [Amended
by 1993 c.92 §1]
97.170
Disposition of unclaimed body of deceased person; rules.
(1) As used in this section, “indigent person” means a deceased person who does
not have a death or final expense benefit or insurance policy that pays for
disposition of the deceased person’s body or other means to pay for disposition
of the deceased person’s body and who has no relative or other person with the
legal right to direct and the means to pay for disposition of the deceased
person’s body.
(2)(a) The Oregon Health and Science
University shall appoint a Demonstrator of Anatomy from the staff of the
university.
(b) The Demonstrator of Anatomy shall
maintain a list of institutions that may accept or process bodies for education
or research purposes.
(3) A medical examiner as defined in ORS
146.003 or a health care facility as defined in ORS 442.015 that has charge of
an unclaimed body of a deceased person shall promptly attempt to locate and
notify the relatives of the deceased person or other persons who have an
interest in the deceased person and shall arrange with any person who will pay
the expenses to make disposition of the body. If the medical examiner or health
care facility cannot locate a person who will pay the expenses of disposition
of the body, the medical examiner or health care facility may transfer the body
to a licensed funeral service practitioner.
(4)(a) A licensed funeral service
practitioner who takes custody of the unclaimed body of a deceased person shall
promptly verify that a medical examiner or health care facility attempted to
locate relatives and interested persons as provided in subsection (3) of this
section.
(b) If a medical examiner or health care
facility has not attempted to locate relatives and interested persons as
provided in subsection (3) of this section, the funeral service practitioner
shall, within five days after taking custody of the body, attempt to locate and
notify relatives and interested persons and shall arrange with any person who
will pay the expenses to make disposition of the body.
(c) If no one claims the body within five
days after the funeral service practitioner takes custody of the body, or if
the persons notified acquiesce, the funeral service practitioner may transfer
the body to an institution approved by the Demonstrator of Anatomy under
subsection (2) of this section that desires the body for education or research
purposes. The funeral service practitioner shall arrange with an institution
that desires the body to pay for care, preparation and transportation of the
body to the institution.
(d) If no relative, interested person or
institution claims the body as provided in paragraphs (b) and (c) of this
subsection, the funeral service practitioner may cremate or bury the body
without the consent of persons listed in ORS 97.130 and is indemnified from any
liability arising from having made such disposition. The method of disposition
must be in the least costly and most environmentally sound manner that complies
with law, and that does not conflict with known wishes of the deceased. If the
deceased person is an indigent person, the Department of Human Services shall
reimburse the funeral service practitioner for the costs of disposition under
subsection (6) of this section.
(5) When the deceased person is a child
over whom the department held guardianship at the time of death, the department
shall promptly attempt to locate and notify the relatives of the deceased child
or any other person who has an interest in the deceased child and shall arrange
with any person who will pay the expenses to make disposition of the body. If
no relatives or interested persons claim the body, the department may transfer
the body to an institution that is on the list maintained by the Demonstrator
of Anatomy under subsection (2) of this section that desires the body for
education or research purposes, or may authorize burial or cremation of the
body. The department shall pay expenses related to burial or cremation
authorized by the department under this subsection.
(6) Upon receipt of an itemized statement
of expenses and proof as required by the department by rule that the deceased
person is an indigent person, the department shall reimburse a funeral service
practitioner the reasonable costs for disposition of the body of any unclaimed
deceased indigent person. The method of disposition must be in the least costly
and most environmentally sound manner that complies with law. The department
may adopt rules establishing the process for reimbursement and setting the
maximum amount that may be reimbursed to a funeral service practitioner under
this subsection. [Amended by 1973 c.842 §1; 1985 c.704 §1; 1993 c.345 §4; 1995
c.162 §62; 2009 c.709 §8]
97.180
Period within which body may not be used. Upon
receipt of any body by a school or college pursuant to ORS 97.170, it shall be
properly embalmed for anatomical purposes, but shall be retained 30 days before
being used or dismembered. If it is claimed by any relative or friend within
that period, it shall be delivered to the claimant.
97.190
Post-mortem examination of body. Unless
required by a medical examiner to determine the cause of death or specifically
authorized and ordered by the superintendent of the hospital or institution in
which any person coming under the provisions of ORS 97.170 may die, no such body
as is mentioned in ORS 97.170 is subject to post-mortem examination, except by
consent of the Demonstrator of Anatomy. [Amended by 1959 c.629 §43; 1965 c.221 §13;
1977 c.582 §1]
97.200
Disposition of remains after educational use thereof.
The remains of any corpse used for the purposes authorized by ORS 97.170 shall,
upon completion of such use, be decently buried or cremated and the ashes, in
case of cremation, shall be delivered to any relative who claims them, after
establishing relationship. All expenses incident to burial and cremation and
the delivery of ashes to any relative shall be borne by the educational
institution which used the body for educational purposes.
97.210
Exceptions to application of ORS 97.170 to 97.200; rules.
The body of any person who died of smallpox, diphtheria, scarlet fever or other
disease that the Oregon Health Authority, by rule, may prescribe, shall not be
subject to the provisions of ORS 97.170 to 97.200. [Amended by 1977 c.582 §2;
2009 c.595 §62]
97.220
Disinterment. (1) The remains of a deceased person
interred in a plot in a cemetery may be removed from the plot with the consent
of the cemetery authority and written consent of:
(a) The person under ORS 97.130 (2)(a),
(b) or (c) who has the authority to direct disposition of the remains of the
deceased person; or
(b) If the remains are cremated remains,
the person who had possession of the cremated remains and authorized the
interment of the cremated remains.
(2) If the consent of a person described
in subsection (1) of this section or of the cemetery authority cannot be
obtained, permission by the county court of the county where the cemetery is
situated is sufficient. Notice of application to the court for such permission
must be given at least 60 days prior thereto, personally or by mail, to the
cemetery authority, to the person not consenting and to every other person or
authority on whom service of notice is required by the county court.
(3) If the payment for the purchase of an
interment space is past due for a period of 90 days or more, this section does
not apply to or prohibit the removal of any remains from one plot to another in
the same cemetery or the removal of remains by the cemetery authority from a
plot to some other suitable place.
(4) This section does not apply to the
disinterment of remains upon order of court or if ordered under the provisions
of ORS 146.045 (3)(e). [Amended by 1977 c.582 §3; 2007 c.661 §2; 2011 c.164 §3]
97.230
[Repealed by 1973 c.286 §1]
97.250
[1969 c.175 §1; repealed by 1995 c.717 §9]
97.255
[1969 c.175 §3; repealed by 1995 c.717 §9]
97.260
[1969 c.175 §2; repealed by 1995 c.717 §9]
97.265
[1969 c.175 §4; 1973 c.823 §§98,157; 1993 c.218 §1; repealed by 1995 c.717 §9]
97.268
[1985 c.379 §1; repealed by 1995 c.717 §9]
97.270
[1969 c.175 §5; repealed by 1995 c.717 §9]
97.275
[1969 c.175 §6; 1969 c.591 §278a; 1975 c.215 §1; repealed by 1995 c.717 §9]
97.280
[1969 c.175 §7; repealed by 1995 c.717 §9]
97.285
[1969 c.175 §8; repealed by 1995 c.717 §9]
97.290
[1969 c.175 §9; repealed by 1995 c.717 §9]
97.295
[Formerly 116.115; 1995 c.717 §11; renumbered 97.966 in 1995]
97.300
[1969 c.271 §1; 1995 c.717 §12; renumbered 97.968 in 1995]
DEDICATION
TO CEMETERY PURPOSES; PLATTINGS
97.310
Survey and subdivision of land; map or plat of mausoleum or columbarium; access
easement. (1) Every cemetery authority, from time
to time as its property may require for cemetery purposes, shall:
(a) In case of land, survey and subdivide
it into sections, blocks, plots, avenues, walks or other subdivisions and make
a good and substantial map or plat showing them, with descriptive names or
numbers. In all instances this shall be done in compliance with ORS 92.010 to
92.192 except that ORS 92.090 (2)(a) and (b) shall not be applicable to
streets, alleys, ways and footpaths located wholly within a cemetery.
(b) In case of a mausoleum or columbarium,
make a good substantial map or plat on which are delineated the sections,
halls, rooms, corridors, elevation and other divisions, with descriptive names
or numbers. In all instances this shall be done in compliance with the state
building code.
(2) Every lot in a cemetery subdivision
shall include an access easement across the lot for the benefit of adjacent
lots. Designated areas between lots for the purpose of providing access to
separate lots are not required to approve a subdivision under this section. A
cemetery authority must disclose to a potential purchaser of a lot in the
cemetery the existence of the access easement across the lot. [Amended by 1965
c.396 §2; 1979 c.57 §1; 1985 c.582 §3; 1999 c.381 §1]
97.320
Filing map or plat and declaration of dedication of land to cemetery purposes.
In case of a cemetery lot, the cemetery authority shall file the map or plat in
the office of the recording officer of the county in which all or a portion of
the property is situated, and it forthwith shall file for record in that
officer’s office a written declaration dedicating the property delineated on
the plat or map exclusively to cemetery purposes.
97.330
When dedication is complete. Upon the
filing of the map or plat and of the declaration for record, the dedication is
complete for all purposes, and thereafter the property shall be held, occupied
and used exclusively for cemetery purposes.
97.340
Effect of dedication. After property is dedicated to
cemetery purposes pursuant to ORS 97.310 to 97.330 and 97.360 (1), neither the
dedication nor the title of a plot owner shall be affected by the dissolution
of the cemetery authority by nonuser on its part, by alienation of the
property, by any encumbrances, by sale under execution or otherwise, except as
provided in ORS 97.310 to 97.350, 97.360 (2), 97.440, 97.510 to 97.650, 97.710,
97.720 and 97.810 to 97.865.
97.350
Dedication to cemetery purposes not invalid.
Dedication to cemetery purposes pursuant to ORS 97.010 to 97.040, 97.110 to
97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990 is not invalid as
violating any laws against perpetuities or the suspension of the power of
alienation of title to or use of property, and is deemed to be in respect for
the dead, and is a provision for the interment of human remains and is a duty
to, and for the benefit of, the general public.
97.360
Resurvey and alteration in shape or size; vacation of streets, walks, driveways
and parks and replatting into lots. (1) Any part
or subdivision of the property so mapped and platted may, by order of the
directors and consent of the lot owners, be resurveyed and altered in shape and
size and an amended map or plat filed, so long as such change does not disturb
any interred remains.
(2) Whenever a majority of the lots as
platted or laid out in any cemetery established before March 3, 1927, or any
part thereof, has been sold without the owners or persons in control of the
cemetery having made provision for the establishment of an adequate endowment
fund for the perpetual maintenance, upkeep and beautification of the cemetery
and of the lots therein, the avenues, streets, alleys, walks, driveways and
parks therein may be vacated or altered and replatted into lots which may be
sold for burial purposes in the manner provided in this subsection and in ORS
97.370 to 97.430. Application for the vacation or alteration of any avenues,
streets, alleys, walks, driveways or parks, and for the replatting of the same,
or any portion thereof, for cemetery lots in any such cemetery shall be made to
the county court or board of county commissioners in the county where the
cemetery is situated. The application may be by the owners or persons in
control of the cemetery or by a group of 20 or more persons owning lots or
having relatives buried therein. The application shall be verified and shall
specify the lots owned by each petitioner in which are buried bodies of
relatives in which the petitioner is interested and shall state the reason for
the proposed change and what provisions have theretofore been made for the
perpetual upkeep, maintenance and beautification of the cemetery, and there
shall be presented therewith a plat of the cemetery, together with the proposed
replat, which shall have clearly indicated thereon the proposed changes.
97.370
Fixing date of hearing; notice. When any
application mentioned in ORS 97.360 (2) is filed, the court or board shall fix
the time for the hearing of it and notice of the time thereof shall be given by
publication in a paper of general circulation published in the town in which
the cemetery is situated or in the town to which it is nearest once a week for
a period of six successive weeks prior to the date of the hearing and a copy of
such notice shall be posted for a like period at three public and conspicuous
places in the cemetery. Such notice shall be addressed to all persons owning
lots or having an interest in the cemetery, but need not name them, and shall
set forth in a general way the proposed changes, the reason stated in the
application for making it, the time when the hearing of the application will be
had, and shall state that a plat showing the proposed changes is on file with the
county clerk of the county in which the cemetery is situated.
97.380
Hearing; order allowing replatting. At the
hearing mentioned in ORS 97.370 the court or board shall consider and hear any
evidence introduced in favor of the proposed change and all objections thereto
and, after a full hearing thereon, may allow the proposed change and replat in
whole or in part. If the proposed change is allowed, either in whole or in
part, an order allowing it shall be made providing that title to any new lot
created by the alteration or vacation of any avenues, streets, alleys,
driveways, walks or parks, or any part thereof, shall be vested in the owner of
the fee of the part of the cemetery sought to be vacated in trust for burial
purposes, or vested in any association which may be formed for the purpose of
taking over the cemetery and operating and maintaining it in accordance with
the provisions of ORS 97.400. [Amended by 1985 c.582 §4; 1999 c.381 §2]
97.390
Assessment of benefits and damages. If any
damages are claimed by the owner of any lot in any such cemetery as is
mentioned in ORS 97.360 (2), which lot is adjacent to the avenues, streets,
alleys, driveways or parks vacated as provided in ORS 97.380, they shall be
ascertained by the county court or board of county commissioners and offset
against the benefits accruing to the lot owner on account of the upkeep and
beautification of the cemetery in the manner provided in ORS 97.400. Any person
feeling aggrieved at the amount of damages so assessed by the board may appeal
from such order of allowance to the circuit court of the county in which the
cemetery is situated in the same manner as is provided by statute for appeal
from the assessment of damages by the exercise of eminent domain in locating a
county road and on such appeal the jury, in assessing the amount of damages to
be allowed to the appellant, shall offset against such damages the benefits
accruing to the appellant as in this section above provided.
97.400
Disposal of newly created lots; disposition and use of proceeds from sale;
failure of owner to perform duties. Any owner or
association accepting the trust of handling and disposing of lots newly created
pursuant to ORS 97.380 shall by the acceptance thereof agree to dispose of the
lots only for burial purposes and at a price not less than that fixed by the
county court or board of county commissioners. The net funds derived from the
sale of the lots remaining after the payment of the reasonable expenses
incident to the vacation and of the sale shall be placed in an irreducible and
perpetual fund and the interest therefrom shall be used for the perpetual
upkeep and beautification of the cemetery and the lots therein situated. The
fund shall be placed in some reliable trust company specified by the court or
board, which trust company shall invest the same and pay the income therefrom
to the owner or association charged with the disposal of such lots. Any owner
or association taking over the sale of the lots shall comply with such
provisions as the court or board may require of it in the upkeep,
beautification and care of the cemetery with the income thereof, and if such
owner or association for any reason fails to perform such duties, the court or
board may, on its own motion, from time to time, appoint some other association
or individual to perform them. The restrictions of this section shall not apply
to the sale of lots obtained by replatting cemeteries owned and maintained by
any county.
97.410
Right of adjacent lot owner upon vacation of way.
The vacation of an avenue, street, alley, driveway, walk or park adjacent to a
cemetery lot shall vest in the owner of such lot no interest in the vacated
portion thereof; but the adjacent owner shall, for 30 days after the date of
such an order of vacation, have the right to purchase any new lot adjacent to
the lot of the owner at the price fixed by the court or board at which the lots
are to be sold, and if there is more than one adjacent lot owner, the new lot
shall be sold to the one offering the highest price therefor.
97.420
Effect of failure to object. Any owner of
such cemetery as is mentioned in ORS 97.360 (2), or of any lot therein, or any
relative or heir of any deceased person buried in such cemetery who fails to
appear and file written objection to any proposed replat, alteration or
vacation, authorized by ORS 97.360 (2), shall be deemed to have consented to
the proposed change and shall be forever barred from claiming any right to use
and have open for traffic or passageway any streets, alleys, driveways or parks
vacated, or any right, title or interest therein, except as provided in ORS
97.360 (2) and 97.370 to 97.410.
97.430
Declaration of exercise of police power and right of eminent domain.
The enactment of ORS 97.360 (2) and 97.370 to 97.430 is hereby declared to be a
necessary exercise of the police powers of the state in order to preserve and
keep existing cemeteries as resting places for the dead and to preserve old and
historic cemeteries from becoming unkempt and places of reproach and desolation
in the communities in which they are located. The taking of avenues, streets,
alleys, walks, driveways and parks for the purpose and by the method specified
in ORS 97.360 (2) and 97.370 to 97.420 is hereby declared an exercise of the
right of eminent domain in behalf of the public health, safety, comfort,
pleasure and historic instruction.
97.440
Removal of dedication. (1) Property dedicated to
cemetery purposes shall be held and used exclusively for cemetery purposes
until the dedication is removed from all or any part of it by an order and
decree of the county court or board of county commissioners of the county in
which the property is situated in a proceeding brought by the cemetery
authority for that purpose and upon notice of hearing and proof satisfactory to
the court that:
(a) The portion of the property from which
dedication is sought to be removed is not being used for interment of human
remains; or
(b) The Oregon Commission on Historic
Cemeteries has received notice of and had the opportunity to comment on the
removal from the dedicated property of all human remains and markers dated
prior to February 14, 1909.
(2) The notice of hearing required by this
section must:
(a) Be given by publication once a week
for at least four consecutive weeks in a newspaper of general circulation in
the county where the cemetery is located and by publication twice in a
newspaper with statewide circulation;
(b) Be posted in three conspicuous places
on that portion of the property from which the dedication is to be removed;
(c) Describe the portion of the cemetery
property sought to be removed from dedication;
(d) State that all remains and markers
have been removed or that no interments have been made in the portion of the
cemetery property sought to be removed from dedication; and
(e) Specify the time and place of the
hearing. [Amended by 2003 c.237 §1]
97.445
Vacating county interest in cemetery real property.
Consistent with the provisions of ORS 368.326 to 368.366, a county may vacate
any real property interests the county may own in a cemetery. Consistent with
ORS 368.366 (2), the county may vacate its real property interests in favor of
a private nonprofit organization provided the organization states its intent to
provide for the continuing maintenance and care of the cemetery and associated
facilities. [1997 c.747 §2]
97.450
Discontinuance of cemetery and removal of remains and markers.
(1)(a) Whenever any cemetery that is within the limits of any county, city or
town has been abandoned, or it is desirable to abandon such cemetery, the
governing body of any county, if the cemetery is owned by the county, or the
corporate authorities of the city or town, if the cemetery is owned by the city
or town, or the trustees or directors, if the cemetery is owned by an
association or corporation, may order that such burial ground be discontinued,
have the remains of all persons interred in the cemetery moved to some other
suitable place and provide for the removal and reerection of all stones and
monuments marking said graves. Each removal must be made in an appropriate
manner and in accordance with the directions of the Director of the Oregon
Health Authority. Prior to any removal authorized under this section, written
notice must be given to the family, or next of kin of the deceased, if known,
and if unknown, notice of the removal shall be published for at least four
successive weeks in a newspaper of general circulation in the county in which
the cemetery is located and twice in a newspaper with statewide circulation.
(b) Any removal and the costs of the
proceedings under this section shall be at the expense of the county, city or
town, individual, corporation or association owning the cemetery to be moved.
(2) Notwithstanding subsection (1)(a) of
this section, a cemetery or burial ground containing human remains that were
interred before February 14, 1909, may not be discontinued or declared
abandoned or have remains removed from the burial ground or cemetery without
prior notice to and comment by the Oregon Commission on Historic Cemeteries.
When commenting on a request to discontinue or declare abandoned a cemetery or
burial ground, the commission shall consider:
(a) The listing of the cemetery or burial
ground under ORS 97.782;
(b) The historic significance of the
cemetery or graves included in the request; and
(c) The findings of any archaeological
survey of the cemetery or burial ground. [Amended by 1955 c.472 §1; 2003 c.237 §2;
2009 c.595 §63]
97.460
Requirements for establishment of cemetery or burial park.
(1) A person may not lay out, open up or use any property for cemetery or
burial park purposes unless the person:
(a) Is the owner of the property;
(b) Has the written consent of the
planning commission of the county or city having jurisdiction under ORS 92.042
or, if there is no such commission in such county or city, the governing body
of such county or city;
(c) Agrees to maintain records of the
disposition of human remains on the property as required by the planning
commission or governing body of the county or city having jurisdiction under
ORS 92.042; and
(d) Agrees to disclose the disposition of
human remains upon sale of the property. Failure to disclose the disposition of
human remains does not invalidate the sale of the property.
(2) A planning commission of a county or
city or, if there is no planning commission in a county or city, the governing
body of the county or city, shall provide to the State Mortuary and Cemetery
Board a list of the requirements for laying out, opening up or using property
in the county or city for cemetery or burial park purposes. [Formerly 64.060;
1965 c.396 §3; 2009 c.709 §9]
SALES
AND RIGHTS IN RESPECT OF CEMETERY PLOTS
97.510
Sale and conveyance of plots by cemetery authority.
(1) After filing the map or plat and recording the declaration of dedication, a
cemetery authority may sell and convey plots subject to such rules and
regulations as may be then in effect and subject to such other and further
limitations, conditions and restrictions made a part of the declaration of
dedication by reference or included in the instrument of conveyance of the
plot.
(2) Scattering of cremated remains in a
scattering garden is not a sale or conveyance. [Amended by 2007 c.661 §3]
97.520
Sale or offer to sell cemetery plot upon promise of resale at financial profit.
A person, firm or corporation may not sell or offer to sell a cemetery plot
upon the promise, representation or inducement of resale at a financial profit,
except with the consent and approval of the Director of the Department of
Consumer and Business Services. Each violation of this section constitutes a
separate offense. [Amended by 1989 c.171 §13; 2007 c.661 §4]
97.530
Commission, bonus or rebate for sale of plot or services.
No cemetery authority shall pay or offer to pay, and no person, firm or
corporation shall receive, directly or indirectly, a commission, bonus, rebate
or other thing of value for the sale of a plot or services. This does not apply
to a person regularly employed by the cemetery authority for such purpose. Each
violation of this section constitutes a separate offense.
97.540
Commission, bonus or rebate for recommendation of cemetery.
No person shall pay, cause to be paid or offer to pay, and no person, firm or
corporation shall receive, directly or indirectly, except as provided in ORS
97.530, any commission, bonus, rebate or other thing of value in consideration
of recommending or causing a dead human body to be disposed of in any cemetery.
Each violation of this section constitutes a separate offense.
97.550
Plots are indivisible. All plots, the use of which has
been conveyed by deed or certificate of ownership as a separate plot, are
indivisible except with the consent of the cemetery authority, or as provided
by law.
97.560
Presumption of sole ownership in grantee of plot.
All plots conveyed to individuals are presumed to be solely and separately
owned by the person named in the instrument of conveyance.
97.570
Spouse has vested right of interment. (1) The
spouse of an owner of any plot containing more than one interment space has a
vested right of interment of the remains of the spouse in the plot, and any
person thereafter becoming the spouse of the owner has a vested right of
interment of the remains of the person in the plot if more than one interment
space is unoccupied at the time the person becomes the spouse of the owner.
(2) The purchase by a married person of
more than one interment space shall create in the spouse a right of interment
therein.
97.580
Divestiture of spouse’s right of interment. No
conveyance or other action of the owner without the written consent or joinder
of the spouse of the owner divests the spouse of the vested right of interment,
except that a judgment of divorce between them terminates the right unless
otherwise provided in the judgment. [Amended by 2003 c.576 §357]
97.590
Transfer of plot or right of interment. No transfer
of any plot, heretofore or hereafter made, or any right of interment is
complete or effective until recorded on the books of the cemetery authority.
97.600
Descent of plot. Upon the death of the owner,
unless the owner has disposed of the plot either by specific direction in the
will of the owner or by a written declaration filed and recorded in the office
of the cemetery authority, if no interment has been made in an interment plot
which has been transferred by deed or certificate of ownership to an individual
owner or if all remains previously interred are lawfully removed, the plot
descends to the heirs at law of the owner, subject to the rights of interment
of the decedent and the surviving spouse of the decedent.
97.610
Determining occupant of burial plot having co-owners.
When there are two or more owners of a burial plot or of rights of interment
therein, such owners may designate one or more persons to designate the burials
to be made in the plot and file written notice of such designation with the
cemetery association. In the absence of such notice or of written objection to
its so doing, the cemetery association is not liable to any owner for interring
or permitting an interment therein upon the request or direction of any
registered co-owner of the plot.
97.620
Death of co-owner; authorization to use plot under directions of surviving
owners. An affidavit by any person having
knowledge of the fact, setting forth the fact of the death of one owner and
establishing the identity of the surviving owners named in the deed to any
plot, when filed with the cemetery authority operating the cemetery in which
the plot is located, is authorization to the cemetery authority to permit the
use of the unoccupied portion of the plot in accordance with the directions of
the surviving owners or their successors in interest.
97.630
Family plots; order of occupation. (1) Whenever
an interment of the remains of a member or of a relative of a member of the
family of the record owner, or of the remains of the record owner, is made in a
plot transferred by deed or certificate of ownership to an individual owner,
and the owner dies without making disposition of the plot, either by direction
in the owner’s will, or by a written declaration filed and recorded in the
office of the cemetery authority, the plot thereby becomes inalienable and
shall be held as the family plot of the owner, and occupied in the following
order:
(a) One grave, niche or crypt may be used
for the owner’s interment; one for the owner’s surviving spouse, if there is
one, who by ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920 and 97.990 has a vested right of interment in it; and in those
remaining, if any, the children of the deceased owner in order of death may be
interred without the consent of any person claiming any interest in the plot.
(b) If no child survives, the right of
interment goes in order of death to the spouse of any child of the record
owner.
(2) Any surviving spouse, child or child’s
spouse who has a right of interment in a family plot may waive such right in
favor of any other relative or spouse of a relative of either the deceased
owner or of the deceased owner’s spouse, and upon such waiver the remains of
the person in whose favor the waiver is made may be interred in the plot.
(3) Notwithstanding subsection (1) of this
section, the personal representative of the deceased owner of a family plot may
sell unoccupied interment spaces in the plot as property of the estate of the
deceased owner when there are no existing rights of interment in those spaces
or all existing rights of interment in those spaces have been waived and
thereby terminated.
(4) Whenever a plot is transferred by deed
or certificate of ownership to an individual owner and the transfer is recorded
on the books of the cemetery authority, the cemetery authority shall provide to
the individual owner a written statement, in a form approved by the State
Mortuary and Cemetery Board, containing a clear explanation of the provisions
of subsections (1) and (2) of this section and of the rights of interment
established thereby. [Amended by 1985 c.652 §1]
97.640
Waiver or termination of vested right of interment.
A vested right of interment may be waived and is terminated upon the interment
elsewhere of the remains of the person in whom it is vested.
97.650
Limitations upon vested right of interment. No
vested right of interment gives to any person the right to have the remains of
the person interred in any interment space in which the remains of any deceased
person having equal or prior vested right of interment have been interred; nor
does it give any person the right to have the remains of more than one deceased
person interred in a single interment space in violation of the rules and
regulations of the cemetery in which the interment space is located.
NONPROFIT
CORPORATIONS
97.660
Lands of cemetery or crematory corporation; exemption from execution, taxation
and condemnation. A nonprofit corporation
organized and existing solely for the purposes of either owning and operating a
cemetery or cremating dead bodies and burying and caring for incinerate remains,
may purchase or take, by gift or devise, and own and hold lands for the sole
purpose of either a cemetery or a crematory and burial place for incinerate
remains. Such lands shall be exempt from execution, and from any appropriation
for public purposes, and lots or portions of such land and space in any
buildings thereon may be sold, if intended to be used exclusively for burial
purposes, and in no wise with a view to the profit of the members of such
corporation. The land so held for cemetery purposes shall not exceed 600 acres,
but if the land already held for such purpose by the corporation is all
practically used, the amount thereof may be increased by adding thereto not
more than 20 acres at any one time. The land so held for the purposes of a crematory
and the burial of incinerate remains shall not exceed 30 acres, but if the land
already held for such purposes by the corporation is all practically used, the
amount thereof may be increased by adding thereto not more than 10 acres at any
one time. Lands held for the purposes described in this section shall be exempt
from taxation as provided in ORS 307.150. [Formerly 65.855]
Note:
97.660 to 97.680 [formerly 65.855 to 65.875] were made a part of ORS chapter 65
by legislative action but were not added to ORS chapter 97 or any smaller
series therein. See Preface to Oregon Revised Statutes for further explanation.
97.665
Revenues; restrictions on uses of revenue. (1) A
nonprofit corporation organized or existing solely for the purposes of either
owning and operating a cemetery or cremating dead bodies and burying and caring
for incinerate remains may, by its bylaws, provide that a stated percentage of
the money received from the sale of lots and burial space, cremation of bodies,
donations, gifts or other sources of revenue shall constitute an irreducible
fund. Any bylaw enacted for the creation of the irreducible fund cannot be
amended to reduce the fund.
(2) The board of directors may direct the
investment of the money in the irreducible fund, but all investments of money
deposited in the fund on or after January 1, 1972, shall be in securities in
classes and amounts approved by the State Treasurer and published in a list
pursuant to ORS 97.820. If a bank or trust company qualified to engage in the
trust business is directed by the board of directors to invest the money in the
irreducible fund, the bank or trust company shall be governed by ORS 130.750 to
130.775 and shall not be required to invest the money according to the list
approved by the State Treasurer. An officer of the corporation shall file with
the Director of the Department of Consumer and Business Services on or before
April 15 of each year a verified statement in duplicate containing the same
information pertaining to the irreducible fund as provided in ORS 97.810 (4)
regarding endowment care funds. The director may require the corporation to
file, as often as the director considers it to be necessary, a detailed report
of the conditions and assets of the irreducible fund.
(3) The interest or income arising from
the irreducible fund provided for in this section or by any bylaws, or so much
thereof as is necessary, shall be devoted exclusively to the preservation and
embellishment of the grounds, buildings and property of the corporation and the
lots and space in buildings or grounds sold to the members of the corporation,
or to the payment of the interest or principal of the debts authorized by
subsection (5) of this section for the purchase of land, erecting buildings,
and improvements. Any surplus thereof not needed or used for such purposes
shall be invested as provided in this section and shall become part of the
irreducible fund.
(4) After paying for the land and the
erection of the original buildings and improvements thereon, all the future
receipts and income of the corporation subject to the provisions in this
section relating to the creation of an irreducible fund, whether from the sale
of lots and burial space, cremation of bodies, donations, gifts and other
sources, shall be applied exclusively to laying out, preserving, protecting,
embellishing and beautifying the cemetery or the crematory and grounds thereof,
and the avenues leading thereto, and to the erection of such buildings and
improvements as may be necessary or convenient for cemetery or crematory
purposes, and to pay the necessary expenses of the corporation.
(5) No debts shall be contracted by such
corporation in anticipation of any future receipts, except for originally
purchasing the lands authorized to be purchased by it, laying out and
embellishing the grounds and avenues, erecting buildings and vaults on such
land, and improving them for the purposes of the corporation. The corporation
may issue bonds or notes for debts so contracted and may secure them by way of
mortgage upon any of its lands, buildings, property and improvements excepting
lots or space conveyed to the members. [Formerly 65.860]
Note:
See note under 97.660.
97.670
Selling land unsuited for burials. If in the
board of directors’ opinion, any portion of the lands of a nonprofit
corporation organized and existing solely for the purposes of either owning or
operating a cemetery or the cremation of dead bodies and the burial and care of
incinerate remains is unsuitable for burial purposes or other purposes of the
corporation, the board of directors may sell such portion and apply the
proceeds to the general purposes of such corporation in the same proportion and
manner as provided by ORS 97.660 to 97.680. [Formerly 65.865]
Note:
See note under 97.660.
97.675
Burial lots or space; use; exemption from taxation, execution and liens; lien
for purchase price of gravestone. Burial lots
or space for burial of incinerate remains in buildings or grounds sold by a
nonprofit corporation organized and existing solely for the purposes of either
owning and operating a cemetery or cremating dead bodies and burying and caring
for incinerate remains shall be for the sole purpose of interment or deposit
and safekeeping of incinerate remains. Such lots or space shall be exempt from
execution, attachment or other lien or process, if used as intended by the
purchaser thereof from such corporation, or the assigns or representatives of
the purchaser, exclusively for burial purposes, and in no wise with a view to
profit. Such lots or space shall be exempt from taxation as provided in ORS
307.150. The vendor of any gravestone, however, shall not be prevented from
having and enforcing a lien thereon for all or part of its purchase price. If a
suit is brought to enforce such a lien, the judgment therein is enforceable
thereafter; and, for the purpose of enabling the lien to be had and enforced,
the gravestone shall be deemed personal property and may be severed and
removed, under execution and order of sale, from the lot where it is situated
and may be sold in the same manner as any other personal property. [Formerly
65.870]
Note:
See note under 97.660.
97.680
Recording plan; power to improve and regulate grounds.
(1) As used in this section, “plan” means a document indicating the placement
of lots or burial spaces, and of the niches or inurnment spaces in the
buildings erected thereon, as established and authorized by the cemetery
authority.
(2) A nonprofit corporation organized and
existing solely for the purposes of owning and operating a cemetery or
cremating dead bodies and burying and caring for incinerate remains shall cause
a plan of its land and grounds and of the lots laid out by it and of the niches
or burial space in the buildings erected thereon to be made and recorded in the
county in which such grounds and land are located, such lots or spaces to be
numbered by regular consecutive numbers. Such corporation may enclose, improve,
and adorn the grounds, buildings, and avenues, prescribe rules for the
designation, improvement and adorning of lots and burial spaces and for
erecting monuments, and prohibit any use, division, improvement or adornment of
a lot or burial space which it may deem improper. [Formerly 65.875]
Note:
See note under 97.660.
CEMETERY
MANAGEMENT
97.710
Power of cemetery to make rules and regulations.
(1) The cemetery authority may make and enforce rules and regulations for:
(a) The use, care, control, management,
restriction and protection of its cemetery;
(b) Restricting and limiting the use of
all property within its cemetery;
(c) Regulating the uniformity, class and
kind of all markers, monuments and other structures within its cemetery;
(d) Prohibiting the erection of monuments,
markers or other structures in or upon any portion of its property;
(e) Regulating or preventing the erection
of monuments, effigies and structures within any portion of the cemetery
grounds and for the removal thereof;
(f) Regulating the care or preventing the
introduction of plants or shrubs within such grounds;
(g) Preventing the interment in any part
thereof of a body not entitled to interment therein;
(h) Preventing the use of burial plots for
purposes violative of its restrictions;
(i) Regulating the conduct of persons and
preventing improper assemblages therein; and
(j) All other purposes deemed necessary by
the cemetery authority for the proper conduct of its business and the
protection and safeguarding of the premises and the principles, plans and
ideals on which the cemetery was organized.
(2) The cemetery authority from time to
time may amend, add to, revise, change or modify such rules and regulations.
(3) Such rules and regulations shall be
plainly printed or typewritten and maintained, subject to inspection, in the
office of the cemetery authority.
97.720
Record of interments and cremations; inspection.
(1) The person in charge of any premises on which interments or cremations are
made shall keep a record of all remains interred or cremated on the premises
under the person’s charge, in each case stating the name of each deceased
person, the date of interment or cremation, and the name and address of the
funeral service practitioner. The interment records shall be open to inspection
by survivors of the decedent during the customary office hours of the cemetery
authority.
(2) A record shall be kept of the
ownership of all plots in the cemetery which have been conveyed by the cemetery
authority and of all transfers of plots in the cemetery.
97.730
Gifts and bequests in trust for cemeteries. Gifts,
grants and bequests of personal property in trust for the purpose of providing
perpetual care and maintenance, improvement or embellishment of private burial
lots in or outside of cemeteries and of the walks, fences, monuments,
structures or tombs thereon, are permitted and shall be deemed to be for
perpetual and benevolent uses. They are not invalid by reason of any
indefiniteness or uncertainty of the persons designated as beneficiaries in the
instrument creating the trust; nor are they invalid as violating any existing
laws against perpetuities or suspension of the power of alienation of title to
property. But nothing in this section affects any existing authority or cause
to pass upon the reasonableness of the amount of such gift, grant or bequest.
Any cemetery association may act as trustee of and execute any such trust with
respect to lots, walks, fences, monuments, structures or tombs, both within or
outside its own cemetery limits, but within the county where such cemetery
association has its principal office and place of business, whether such power
is otherwise included in its corporate powers or not.
INDIAN
GRAVES AND PROTECTED OBJECTS
97.740
Definitions for ORS 97.740 to 97.760. For the
purposes of ORS 97.740 to 97.760:
(1) “Burial” has the meaning given that
term in ORS 358.905.
(2) “Funerary object” has the meaning
given that term in ORS 358.905.
(3) “Human remains” has the meaning given
that term in ORS 358.905.
(4) “Indian tribe” means any tribe of
Indians recognized by the Secretary of the Interior or listed in the Klamath
Termination Act, 25 U.S.C. 3564 et seq., or listed in the Western Oregon Indian
Termination Act, 25 U.S.C. 3691 et seq., if the traditional cultural area of
the tribe includes Oregon lands.
(5) “Object of cultural patrimony” has the
meaning given that term in ORS 358.905.
(6) “Professional archaeologist” means a
person who has extensive formal training and experience in systematic,
scientific archaeology.
(7) “Sacred object” has the meaning given
that term in ORS 358.905. [1977 c.647 §1; 1981 c.442 §3; 1985 c.198 §2; 1993
c.459 §9; 1997 c.249 §34]
97.745
Prohibited acts; application; notice. (1) Except as
provided in ORS 97.750, no person shall willfully remove, mutilate, deface,
injure or destroy any cairn, burial, human remains, funerary object, sacred
object or object of cultural patrimony of any native Indian. Persons disturbing
native Indian cairns or burials through inadvertence, including by
construction, mining, logging or agricultural activity, shall at their own
expense reinter the human remains or funerary object under the supervision of
the appropriate Indian tribe.
(2) Except as authorized by the
appropriate Indian tribe, no person shall:
(a) Possess any native Indian artifacts,
human remains or funerary object having been taken from a native Indian cairn
or burial in a manner other than that authorized under ORS 97.750.
(b) Publicly display or exhibit any native
Indian human remains, funerary object, sacred object or object of cultural
patrimony.
(c) Sell any native Indian artifacts,
human remains or funerary object having been taken from a native Indian cairn
or burial or sell any sacred object or object of cultural patrimony.
(3) This section does not apply to:
(a) The possession or sale of native Indian
artifacts discovered in or taken from locations other than native Indian cairns
or burials; or
(b) Actions taken in the performance of
official law enforcement duties.
(4) Any discovered human remains suspected
to be native Indian shall be reported to the state police, the State Historic
Preservation Officer, the appropriate Indian tribe and the Commission on Indian
Services. [1977 c.647 §2; 1979 c.420 §1; 1981 c.442 §4; 1985 c.198 §1; 1993
c.459 §10]
97.750
Permitted acts; notice. (1) Any proposed excavation by a
professional archaeologist of a native Indian cairn or burial shall be
initiated only after prior written notification to the State Historic
Preservation Officer and the state police, as defined in ORS 358.905, and with
the prior written consent of the appropriate Indian tribe in the vicinity of
the intended action. Failure of a tribe to respond to a request for permission
within 30 days of its mailing shall be deemed consent. All associated material
objects, funerary objects and human remains removed during such an excavation
shall be reinterred at the archaeologist’s expense under the supervision of the
Indian tribe.
(2) In order to determine the appropriate
Indian tribe under this section and ORS 97.745, a professional archaeologist or
other person shall consult with the Commission on Indian Services which shall
designate the appropriate tribe. [1977 c.647 §3; 1979 c.420 §2; 1981 c.442 §5;
1993 c.459 §11]
97.760
Civil action by Indian tribe or member; time for commencing action; venue; damages;
attorney fees. (1) Apart from any criminal
prosecution, an Indian tribe or enrolled member thereof shall have a civil
action to secure an injunction, damages or other appropriate relief against any
person who is alleged to have violated ORS 97.745. The action must be brought
within two years of the discovery of the violation by the plaintiff. The action
may be filed in the circuit court of the county in which the subject grave,
cairn, remains or artifacts are located, or within which the defendant resides.
(2) Any conviction pursuant to ORS 97.990
(5) shall be prima facie evidence of a violation of ORS 97.745 in an action
brought under this section.
(3) If the plaintiff prevails:
(a) The court may grant injunctive or such
other equitable relief as is appropriate, including forfeiture of any artifacts
or remains acquired or equipment used in the violation. The court shall order
the disposition of any items forfeited as it sees fit, including the
reinterment of any human remains in accordance with ORS 97.745 (1);
(b) The plaintiff shall recover imputed
damages in an amount not to exceed $10,000 or actual damages, whichever is
greater. Actual damages include special and general damages, which include
damages for emotional distress;
(c) The plaintiff may recover punitive
damages upon proof that the violation was willful. Punitive damages may be
recovered without proof of actual damages. All punitive damages shall be paid
by the defendant to the Commission on Indian Services for the purposes of Indian
historic preservation; and
(d) An award of imputed or punitive
damages may be made only once for a particular violation by a particular
person, but shall not preclude the award of such damages based on violations by
other persons or on other violations.
(4) The court may award reasonable
attorney fees to the prevailing party in an action under this section. [1981
c.442 §2; 1995 c.543 §1; 1995 c.618 §55]
97.770
[1995 c.457 §7; repealed by 1999 c.731 §14]
97.771
[1995 c.457 §1; 1997 c.632 §1; repealed by 1999 c.731 §14]
OREGON
COMMISSION ON HISTORIC CEMETERIES
97.772
Definition of “historic cemetery.” For purposes
of ORS 97.772 to 97.784, “historic cemetery” means any burial place that
contains the remains of one or more persons who died before February 14, 1909. [1999
c.731 §1; 2003 c.173 §1]
Note:
97.772 to 97.784 were enacted into law by the Legislative Assembly but were not
added to or made a part of ORS chapter 97 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
97.773
[1995 c.457 §3; repealed by 1999 c.731 §14]
97.774
Oregon Commission on Historic Cemeteries; terms.
(1) There is established within the State Parks and Recreation Department the
Oregon Commission on Historic Cemeteries consisting of seven members appointed
by the State Parks and Recreation Director.
(2) The term of office of each member is
four years, but a member serves at the pleasure of the director. Before the
expiration of the term of a member, the director shall appoint a successor
whose term begins on July 1 next following. A member is eligible for
reappointment. If there is a vacancy for any cause, the director shall make an
appointment to become immediately effective for the unexpired term.
(3) A member of the commission is entitled
to compensation and expenses as provided in ORS 292.495. [1999 c.731 §2; 2003
c.173 §2]
Note:
See note under 97.772.
97.775
[1995 c.457 §4; repealed by 1999 c.731 §14]
97.776
Commission members; nominations. The members
of the Oregon Commission on Historic Cemeteries must be citizens of this state
who are well informed on the restoration and maintenance of historic
cemeteries. The State Parks and Recreation Director shall select members from
nominations made by organizations of local historic cemeteries, organizations
of nonprofit cemeteries, the State Mortuary and Cemetery Board and statewide
cemetery associations. The director shall try to appoint individuals to the
commission who represent or are knowledgeable concerning Native American burial
places, rural cemeteries, family burial places and metropolitan cemeteries. [1999
c.731 §4; 2003 c.173 §3]
Note:
See note under 97.772.
97.777
[1995 c.457 §5; repealed by 1999 c.731 §14]
97.778
Chairperson; quorum; meetings. (1) The
Oregon Commission on Historic Cemeteries shall select one of its members as
chairperson and another as vice chairperson for such terms and with duties and
powers necessary for the performance of the functions of such offices as the
commission determines.
(2) A majority of the members of the
commission constitutes a quorum for the transaction of business.
(3) The commission shall meet at least
once every three months at a place, day and hour determined by the commission.
The commission also shall meet at other times and places specified by the call
of the chairperson or of a majority of the members of the commission. [1999
c.731 §5; 2003 c.173 §4]
Note:
See note under 97.772.
97.779
[1995 c.457 §6; repealed by 1999 c.731 §14]
97.780
Duties. The Oregon Commission on Historic
Cemeteries shall:
(1) Maintain a listing of all historic
cemeteries in this state.
(2) Assist in coordination of restoration,
renovation and maintenance of Oregon’s historic cemeteries.
(3) Make recommendations to the State Parks
and Recreation Director for projects and funding to help maintain and improve
Oregon’s historic cemeteries.
(4) Obtain grant funding and seek
legislative appropriations for individual historic cemeteries and groups of
historic cemeteries.
(5) Make recommendations to the
Legislative Assembly for changes in law that will help protect historic
cemeteries as part of Oregon’s heritage.
(6) Assist the director in locating and
listing historic cemeteries.
(7) Assist cemeteries listed as historic
cemeteries with the commission to rehabilitate and maintain those cemeteries
and to promote public education relating to historic cemeteries.
(8) Establish a process to obtain advice
from authorities on the subject of the care of old grave markers and graveyards
as part of any restoration process. [1999 c.731 §6; 2003 c.173 §5]
Note:
See note under 97.772.
97.782
Listing of historic cemeteries; form. A historic
cemetery that is not an operating cemetery, as defined in ORS 692.010, shall be
listed with the Oregon Commission on Historic Cemeteries. An owner or any other
person or association of individuals that maintains such a historic cemetery
shall list the historic cemetery with the Oregon Commission on Historic
Cemeteries on a form provided by the commission. No fee shall be required from
a historic cemetery for listing. [1999 c.731 §7; 2003 c.173 §6]
Note:
See note under 97.772.
97.784
Executive secretary; support services. The State
Parks and Recreation Department shall provide support services to the Oregon
Commission on Historic Cemeteries. One staff person of the department shall be
the executive secretary of the commission. [1999 c.731 §8; 2003 c.173 §7]
Note:
See note under 97.772.
CEMETERY
CARE
97.810
Endowment care and nonendowed care cemeteries.
(1) As used in this section:
(a) “Endowment care cemetery” means a
cemetery that maintains an endowment care fund placed in an irrevocable trust
fund.
(b) “Grave liner” means a burial
receptacle designed to be installed in a grave, as defined in ORS 97.010, to
assist in preventing the ground from collapsing.
(2) An endowment care cemetery shall
deposit with the trustee or custodian of its endowment care fund the following
amounts received from the sale of plots, niches, crypts or private mausoleums:
(a) At least 15 percent of the gross sales
price with a minimum of $5 for each grave sold without a grave liner installed
at the time of sale or, when the gross sales price is paid in installments, at
least 15 percent of each installment until at least 15 percent of the gross
sales price has been deposited, with a minimum of $5 for each grave sold
without a grave liner installed at the time of sale.
(b) At least nine percent of the gross
sales price for each grave sold with a grave liner installed at the time of
sale or, when the gross sales price is paid in installments, at least nine
percent of each installment until at least nine percent of the gross sales
price has been deposited.
(c) At least five percent of the gross
sales price for each niche or, when the gross sales price is paid in
installments, at least five percent of each installment until at least five
percent of the gross sales price has been deposited.
(d) At least five percent of the gross
sales price for each crypt or, when the gross sales price is paid in
installments, at least five percent of each installment until at least five
percent of the gross sales price has been deposited.
(e) At least five percent of the gross
sales price for each private mausoleum or, when the gross sales price is paid
in installments, at least five percent of each installment until at least five
percent of the gross sales price has been deposited.
(3) The cemetery authority shall, within
30 days from the receipt of a payment, deposit with the trustee or custodian of
its endowment care fund any payment received by the cemetery authority that is:
(a) Required by subsection (2) of this
section to be paid into the fund; or
(b) A payment for special care, gifts,
grants, contributions, devises or bequests made with respect to the separate or
special care of a particular plot, grave, niche, crypt, mausoleum, monument or
marker or that of a particular family.
(4) Within 75 days of the end of its
fiscal year, each endowment care cemetery, except one owned by a city or a
county, shall file with the Director of the Department of Consumer and Business
Services a statement containing the following information pertaining to the
endowment care fund:
(a) The total amount invested in bonds,
securities, mortgages and other investments;
(b) The total amount of cash on hand not
invested at the close of the previous calendar or fiscal year;
(c) The income earned by investments in
the preceding calendar or fiscal year;
(d) The amounts of such income expended
for maintenance in the preceding calendar or fiscal year;
(e) The amount paid into the fund in the
preceding calendar or fiscal year; and
(f) Such other items as the director may
from time to time require to show accurately the complete financial condition
of the trust on the date of the statement.
(5) All of the information appearing on
the statement must be verified by an owner or officer of the cemetery
authority, and the cemetery authority shall maintain a copy of the statement in
the business office of the cemetery authority.
(6) The director may require, as often as
the director deems necessary, the cemetery authority to make under oath a
detailed report of the condition and assets of any cemetery endowment care
fund.
(7) At the time of the filing of the
statements of its endowment care fund each cemetery authority shall pay to the
director an annual fee as follows:
(a) Up to 100 interments per year, $40.
(b) Over 100 interments per year, $100.
(8) All fees received by the director
under this section shall be immediately turned over to the State Treasurer who
shall deposit the moneys in the Consumer and Business Services Fund created
under ORS 705.145.
(9) A cemetery may not operate as an
endowment care, permanent maintenance or free care cemetery until the provisions
of this section are complied with.
(10) The head of all contracts and
certificates of ownership or deeds referring to plots in an endowment care
cemetery must contain the following statement: “This cemetery is an endowment
care cemetery,” in at least 10-point black type.
(11) All contracts and certificates of
ownership or deeds referring to plots in an endowment care cemetery must
contain the following statement: “Endowment care means the general care and
maintenance of all developed portions of the cemetery and memorials erected
thereon.”
(12) A cemetery that otherwise complies
with this section may be designated an endowment care cemetery even though it
contains a small area that may be sold without endowed care, if it is
separately set off from the remainder of the cemetery. The head of all
contracts and certificates of ownership or deeds referring to plots in this
area must contain the phrase “nonendowed care” in at least 10-point black type.
(13) A nonendowed care cemetery is a
cemetery that does not deposit in an endowment care fund the minimum amounts
specified in subsection (2) of this section.
(14) A cemetery authority may not in any
way advertise or represent that it operates wholly or partially as an endowment
care cemetery, or otherwise advertise or represent that it provides general
care or maintenance of all or portions of the cemetery or memorials erected
thereon, unless the provisions of this section are complied with. [Amended by
1955 c.545 §2; 1965 c.396 §4; 1967 c.213 §1; 1987 c.295 §1; 1995 c.144 §4; 1999
c.66 §1; 2001 c.796 §23; 2007 c.661 §5; 2011 c.163 §1]
97.820
Placing cemetery under endowed care; deposit; commingling endowment and special
care funds; trustee or custodian of fund. (1)
Every cemetery authority that operates a cemetery may place its cemetery under
endowed care and establish, maintain and operate an endowment care fund. All
endowed care funds shall be deposited with and held solely by the trustee or
custodian appointed by the cemetery authority.
(2) Endowment care and special care funds
may be commingled for investment and the income therefrom shall be divided
between the endowment care and special care funds in the proportion that each
fund contributed to the principal sum invested. The income of the endowment care
fund may be used only to finance the care of the cemetery.
(3) The cemetery authority shall appoint
as sole trustee of the endowment care fund a trust company as defined in ORS
706.008 that is authorized to transact trust business in this state, or an insured
institution as defined in ORS 706.008 that is authorized to accept deposits in
this state. Such trust company or insured institution shall receive and accept
the fund, including any accumulated endowment care fund in existence at the
time of its appointment and perform such duties as are agreed upon in the
agreement between it and the cemetery authority. An insured institution not
qualified to transact trust business in this state may act as custodian of such
endowment care fund provided:
(a) The duties of the insured institution
are essentially custodial or ministerial in nature; and
(b) The insured institution invests the
funds from such plan only in its own time or savings deposits.
(4) The trustee or custodian may resign
upon written notice to the cemetery authority or the cemetery authority may
remove the trustee or custodian by written notice to it. In case of the
resignation or removal of the trustee or custodian, the cemetery authority
forthwith shall appoint a successor trustee or custodian and provide for the
direct transfer of all endowed care funds and earnings thereon from the former
trustee or custodian to the successor trustee or custodian. [Amended by 1955
c.545 §3; 1965 c.396 §5; 1985 c.450 §1; 1987 c.295 §2; 1993 c.18 §19; 1993 c.229
§22; 1993 c.318 §11; 1997 c.167 §2; 1997 c.631 §395; 2007 c.661 §6]
97.825
Suits to enforce endowed care statutes; attorney fees.
(1) If the cemetery authority fails to remit to the trustee or trustees, in
accordance with the law, the funds herein provided for endowment and special
care, or fails to expend the net income from the funds and generally care for
and maintain any portion of a cemetery entitled to endowment care, any three
lot owners whose lots are entitled to endowment care, or any one lot owner
whose lot is entitled to special care, or the next of kin, heirs at law or
personal representatives of such lot owners, shall have the right, or the
district attorney of any county wherein is situated such lots, shall have the
power, by suit for mandatory injunction or for appointment of a receiver, to
sue for, to take charge of, and to expend such net income. The suit may be
filed in the circuit court of the county in which said cemetery is located, to
compel the expenditure either by the cemetery authority or by any receiver so
appointed by the court, of the net income from such endowment care fund for the
purposes set out in ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730,
97.810 to 97.920 and 97.990.
(2) When the Director of the Department of
Consumer and Business Services has reason to believe that a cemetery endowment
care fund does not conform to the requirement of law, or when the director has
reason to believe that any cemetery is operating in violation of ORS 97.810 or
97.820, or when the director has sent an endowment care cemetery a notice of
delinquency to make any report to the director required by ORS 97.810, the
director shall, as soon thereafter as reasonable, give notice of the foregoing
to the trustee or trustees of the cemetery endowment care fund, the cemetery
authority, the Attorney General of Oregon and the State Mortuary and Cemetery
Board.
(3) Within 120 days after the receipt of
such notice, the Attorney General shall institute suit in the circuit court of
any county of this state in which such cemetery is located, for a mandatory
injunction against further sales of graves, plots, crypts, niches, burial
vaults, markers or other cemetery merchandise by such cemetery or for the
appointment of a receiver to take charge of the cemetery, unless the Attorney
General shall prior to that time be notified by the director that such failure
to conform to the requirements of the law or to report has been corrected.
(4) The Attorney General may delay
instituting any suit brought under subsection (3) of this section for no more
than an additional 30 days if, in the discretion of the Attorney General after
consulting with the director, it appears to the Attorney General:
(a) That the failure to conform to the
requirements of the law or to report will be corrected; and
(b) That no harm to the public will occur
during the additional 30 days.
(5) If a trustee fails to perform the
duties of the trustee under ORS 97.810 to 97.920, the trustee shall be liable
for any damage resulting from that failure to any lot owners or the next of
kin, heirs at law or personal representatives of such lot owners.
(6) The court may award reasonable
attorney fees, costs and disbursements to the prevailing party in an action
under this section. [1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999 c.67 §1;
2001 c.796 §24; 2007 c.661 §7]
97.830
Investment and reinvestment of principal of endowed care funds; use and
application of income. (1) The principal of all funds
for endowed care shall be invested, from time to time reinvested and kept
invested. If a trust agreement imposes upon the trustee or custodian the duty
to direct the investment or reinvestment of endowed care funds, the trustee or
custodian shall perform this duty governed by ORS 130.750 to 130.775.
Otherwise, the cemetery authority, governed by ORS 130.750 to 130.775, shall
direct the investment and reinvestment of endowed care funds in the time or
savings deposits of the custodian bank or savings association.
(2) The principal of invested endowed care
funds shall never be voluntarily reduced, but shall be maintained separate and
distinct by the trustee or custodian from all other funds except that it shall
be proper to commingle endowment care funds with special care funds. The
payment of charges chargeable against principal under ORS chapter 129 or of
other expenses necessarily incurred in the administration of the trust in
accordance with subsection (1) of this section shall not constitute a voluntary
reduction of principal. The net income earned shall be used solely for the
general care and maintenance of the cemetery property entitled to endowment
care, as stipulated in the resolution, bylaw and other action or instrument by
which the fund was established, and in such manner as the cemetery authority
may from time to time determine to be in the best interests of such endowed
property. Such net income shall never be used for the improvement or
embellishment of undeveloped property offered for sale. [Amended by 1955 c.545 §4;
1985 c.450 §3; 1987 c.295 §3; 1995 c.157 §24; 1995 c.297 §1; 2003 c.279 §32;
2005 c.348 §125]
97.835
Limitation of duties and liability of trustee.
The trustee shall have no duty whatsoever to operate, maintain or to supervise
the general maintenance of any endowment fund cemetery, and the trustee shall
have no duty whatsoever to enforce collection of any of the trust funds either
from the purchasers of lots, or from the cemetery authority, and the trustee
shall have no duty whatsoever to see to the application of the net income after
payment of the net income to the cemetery authority. The trustee shall be
entitled to rely without liability upon the affidavit of the cemetery authority
showing the amount payable to the trustee as endowment care funds. [1955 c.545 §6]
97.840
Cemetery authority authorized to receive and hold gifts of property;
disposition of gifts. A cemetery authority which has
established an endowment care fund may take, receive and hold any property,
real, personal or mixed, bequeathed, devised, granted, given or otherwise
contributed to it for its endowment care fund. Within 30 days of the receipt of
such contributions, the cemetery authority shall deposit, with the trustee or
custodian of the fund to which the property was contributed, all moneys and all
documents or instruments of title or conveyance evidencing the contribution. As
soon as practicable, the cemetery authority shall provide for the sale of all
property for fair market value and, within 30 days of the receipt of the
proceeds thereof, shall deposit the proceeds with the trustee or custodian. The
trustee or custodian shall execute all documents necessary to effect the sale,
consistent with the purposes of this section. [Amended by 1987 c.295 §4]
97.850
Endowment and special care funds are charitable.
The endowment and special care funds and all payments or contributions to them
are expressly permitted as and for charitable and eleemosynary purposes.
Endowment care is a provision for the discharge of a duty from the persons
contributing to the persons interred and to be interred in the cemetery and a
provision for the benefit and protection of the public by preserving and
keeping cemeteries from becoming unkempt and places of reproach and desolation
in the communities in which they are situated.
97.860
Agreements for care. (1) Upon payment of the purchase
price, including the amount fixed as a proportionate contribution for endowed
care, there may be included in the deed of conveyance, or by separate
instrument, an agreement to care, in accordance with the plan adopted, for the
cemetery and its appurtenances to the proportionate extent the income received
by the cemetery authority from the contribution permits.
(2) Upon the application of an owner of
any plot, and upon the payment by the owner of the amount fixed as a reasonable
and proportionate contribution for endowed care, a cemetery authority may enter
into an agreement with the owner for the care of the plot of the owner and its
appurtenances.
97.865
Application of ORS 97.810 to 97.865 to religious, county and city cemeteries.
(1) A cemetery authority that operates a cemetery for any religious or
eleemosynary corporation, church, religious society or denomination,
corporation sole administering temporalities of any church or religious society
or denomination and any county or city may make an irrevocable election to have
ORS 97.810 to 97.865 apply to any cemetery controlled or operated by the
cemetery authority, county or city by filing a written statement indicating
such action with the Director of the Department of Consumer and Business
Services. The statement shall be in the form prescribed by the director and
shall contain the information specified by the director.
(2)(a) When a cemetery authority, county
or city files a statement described in this section with the director, ORS
97.810 to 97.865 applies to a cemetery controlled or operated by the cemetery
authority, county or city beginning on the first day of the fiscal year next
following the filing of the statement.
(b) ORS 294.035 does not apply to funds
held by a county or city under ORS 97.810 to 97.865. [1997 c.167 §4; 2001 c.796
§25; 2007 c.661 §8]
97.870
Unused and uncared for portions of cemetery declared common nuisances.
(1) In all cases where a cemetery authority has owned a site for a cemetery for
more than 40 years and has during that period sold lots, subdivisions of lots,
pieces or parcels of the cemetery for burial purposes and the grantee or party
claiming through the grantee has not used portions of such lots, subdivisions
of lots, pieces or parcels of the cemetery for purposes of burial and has not
kept them free of weeds or brush, but has allowed them to remain entirely
unused for more than 40 years or uncared for and unused for more than 20 years
prior to the adoption of the resolution provided for in ORS 97.880, and such
lots, subdivisions of lots, pieces and parcels of the cemetery are adjacent to
improved parts thereof, and by reason of their uncared-for condition detract
from the appearance of the cemetery and interfere with the harmonious
improvement thereof, and furnish a place for the propagation of weeds and
brush, thereby becoming a menace to adjacent property, such lots, subdivisions
of lots, pieces and parcels of such cemetery, which are unused and uncared for
as aforesaid, hereby are declared to be a common nuisance and contrary to
public policy.
(2) The provisions of this section are not
applicable to portions of cemeteries which have been or are sold with
agreements between the cemetery authority or its successor in interest, or
both, and the grantee providing for endowment care, permanent maintenance or
free care. [Amended by 1965 c.396 §7; 2007 c.661 §9]
97.880
Resolution declaring a nuisance. The governing
board of a cemetery authority described in ORS 97.870 may adopt a resolution
declaring such unused and unimproved portion of its cemetery as is described in
ORS 97.870 a common nuisance and an abandoned and unused portion of such
cemetery, and may direct its officers to file the complaint described in ORS
97.890. [Amended by 1983 c.740 §9]
97.890
Complaint. (1) Upon the adoption of the resolution
described in ORS 97.880 the officers of the cemetery authority may file a
complaint in the circuit court for the county in which the cemetery is located
against the owners, holders or parties interested in such abandoned portion of
its cemetery demanding that the court require such owners, holders or
interested parties to keep the premises clear of weeds and brush and in
condition in harmony with other lots and, if the owners, holders, or interested
parties fail to appear in court and comply with the order of the court,
demanding that the court make a judgment declaring such portions of the
cemetery a common nuisance, directing the governing board to abate the nuisance
by clearing the premises and keeping them clear of weeds and brush, creating a
lien upon such lots and parcels in favor of the cemetery authority, providing
that the lien be foreclosed and the lots and parcels be sold in the same manner
as other sales upon execution are made and authorizing the governing board to
become a purchaser thereof on behalf of the cemetery authority.
(2) In such suit any number of owners of
different lots, subdivisions of lots, pieces or parcels of the cemetery may be
included in the one suit.
(3) It is a sufficient designation of the
property so abandoned and unimproved to give the lot number or portion thereof,
or a description of the piece or parcel having no lot number, together with the
name of the owner thereof, as appears on the record of the cemetery authority.
(4) In addition to the names of the
persons that appear on the records of the cemetery authority as the record
owners of such unused and unimproved portions of the cemetery, the plaintiff
shall include as a defendant in a complaint the following: “Also all other
persons unknown claiming any right, title, estate, lien or interest in the
unused and unimproved portions of the cemetery described in the complaint.” [Amended
by 2003 c.576 §358; 2007 c.661 §10]
97.900
Summons. (1) Summons shall be served upon all
owners or holders who are residents of this state in like manner as in service
of summons in a civil action if such owners and holders are known to the
sheriff in the county in which the cemetery is located. If the defendants are
not known to the sheriff, it is sufficient to serve the owners and holders
whose names appear on the tax rolls of the county for the year previous to that
in which the suit is started. The plaintiff is not required to mail a copy of
the summons or complaint to nonresident defendants.
(2) All owners and holders of such
unimproved lots whose names do not appear on the tax rolls as aforesaid as
shown by the return of the sheriff may be served by publication in any legal
newspaper published in the county in which the cemetery is located for four
consecutive weeks upon return of the sheriff that such owners and holders are
not known and cannot be served in the jurisdiction of the sheriff.
(3) The published summons shall contain
the names of the record owners, as shown by the records of the cemetery
authority, and “also all other persons unknown claiming any right, title,
estate, lien or interest in the unused and unimproved portions of the cemetery
described in the complaint,” together with a brief description of the lot, or
subdivisions of lots, pieces or parcels of the cemetery and a statement setting
forth the order and judgment described in ORS 97.890 (1) for which the
plaintiff has applied to the court in the complaint. Such summons shall require
all parties defendant to appear and show cause why an order should not be made
declaring the unused and unimproved portions of the cemeteries to be a common
nuisance, directing the cemetery authority to abate the nuisance, creating a
lien thereon, providing that it be foreclosed and directing that the unused and
unimproved portion of the cemetery be sold within four weeks from and after the
date of the first publication thereof. [Amended by 2003 c.576 §359; 2007 c.661 §11]
97.910
Disuse as prima facie evidence of abandonment.
In all cases arising under ORS 97.870 to 97.900, the fact that the owner,
holder or interested party, of the unused and unimproved portion of the
cemetery has not, for a term of 20 years or more, used the plot and has failed
to keep it clear of weeds or brush is prima facie evidence that the owner,
holder or interested party has abandoned it.
97.920
Judgment declaring nuisance, authorizing abatement and creating and foreclosing
lien. Upon the failure of the owner of the
premises to comply with the order of the court requiring proper care of the
premises or upon the failure of any of the defendants to appear and answer the
complaint or upon the trial of the cause, if the court finds that the
allegations of the complaint are supported by the evidence and that the summons
has been served as provided in ORS 97.900, the court may enter a judgment in
accordance with the allegations of the complaint and the provisions of ORS
97.890 (1). [Amended by 2003 c.576 §360]
PREARRANGEMENT
SALES AND PRECONSTRUCTION SALES
97.923
Definitions for ORS 97.923 to 97.949. As used in
ORS 97.923 to 97.949 and 97.994 unless the context requires otherwise:
(1) “Beneficiary” means the person, if
known, who is to receive the funeral and cemetery merchandise, funeral and
cemetery services or completed interment spaces.
(2) “Certified provider” means any person
certified under ORS 97.933 to sell or offer for sale prearrangement sales
contracts or preconstruction sales contracts.
(3) “Delivery” occurs when:
(a) Physical possession of the funeral or
cemetery merchandise is transferred to the purchaser; or
(b) If authorized by a purchaser under a
purchase agreement:
(A) The title to the funeral or cemetery
merchandise has been transferred to the purchaser, has been paid for, and is in
the possession of the seller, who has documented the sale in the purchaser’s
records through use of a serial or other identifying number and placed the
merchandise, until needed, for storage on the seller’s premises; or
(B) The merchandise has been identified
for the purchaser or the beneficiary as documented by the manufacturer’s
receipt placed by the seller in the purchaser’s records and held by the
manufacturer for future delivery.
(4) “Depository” means a financial
institution or trust company, as those terms are defined ORS 706.008, that is
authorized to accept deposits in this state or to transact trust business in
this state.
(5) “Director” means the Director of the
Department of Consumer and Business Services.
(6) “Guaranteed contract” means a written
preconstruction sales contract or prearrangement sales contract that guarantees
the beneficiary the specific undeveloped space or spaces or funeral and
cemetery merchandise or funeral and cemetery services contained in the contract
and under which no charges other than the sales price contained in the contract
shall be required upon delivery or performance of the funeral or cemetery
merchandise or services.
(7) “Master trustee” means an entity that
is not a certified provider under ORS 97.923 to 97.949 and that has fiduciary
responsibility for the uniform administration of funds including, but not
limited to, acceptance, custodianship, investment and accounting, delivered to
it by a certified provider for the benefit of purchasers of preconstruction
sales contracts or prearrangement sales contracts. “Master trustee” does not
include a financial institution, as defined in ORS 706.008, that acts solely as
a depository under ORS 97.923 to 97.949.
(8) “Nonguaranteed contract” means a
written preconstruction sales contract or prearrangement sales contract that
guarantees the beneficiary the specific undeveloped space or spaces or funeral
or cemetery merchandise or services contained in the contract, when the price
of the merchandise and services selected has not been fixed and will be
determined by existing prices at the time the merchandise and services are
delivered or provided.
(9) “Prearrangement sales” or “prearrangement
sales contract” means any sale, excluding the sale and contemporaneous or
subsequent assignment of a life insurance policy or an annuity contract, made
to a purchaser, that has as its purpose the furnishing of funeral or cemetery
merchandise or services in connection with the final disposition or commemoration
of the memory of a dead human body, for use at a time determinable by the death
of the person or persons whose body or bodies are to be disposed and where the
sale terms require payment or payments to be made at a currently determinable
time.
(10) “Preconstruction sale” or “preconstruction
sales contract” means a sale made to a purchaser, for the purpose of furnishing
undeveloped interment spaces and when the sale terms require payment or
payments to be made at a currently determinable time.
(11) “Provider” means any entity that
sells and offers for sale funeral or cemetery merchandise or services.
(12) “Purchaser” means a beneficiary or a
person acting on behalf of a beneficiary who enters into a prearrangement sales
contract or a preconstruction sales contract with a certified provider under
which any payment or payments made under the contract are required to be
deposited in trust under ORS 97.941.
(13) “Salesperson” means an individual
registered under ORS 97.931 and employed by a certified provider to engage in
the sale of prearrangement or preconstruction sales contracts on behalf of the
certified provider.
(14) “Sales price” means the gross amount
paid by a purchaser for a prearrangement sales contract or preconstruction
sales contract, excluding sales taxes, credit life insurance premiums and
finance charges.
(15) “Trust” means an express trust
created under ORS 97.941 whereby a trustee has the duty to administer the
amounts specified under ORS 97.941 received under a prearrangement sales
contract or a preconstruction sales contract for the benefit of the purchaser
of a prearrangement sales contract or preconstruction sales contract.
(16) “Undeveloped interment spaces” or “undeveloped
spaces” means any space to be used for the reception of human remains that is
not completely constructed or developed at the time of initial payment. [Formerly
128.400; 2003 c.362 §1; 2007 c.661 §12]
Note:
97.923 to 97.949 were enacted into law by the Legislative Assembly but were not
added to or made a part of ORS chapter 97 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
97.925
Purpose. It is the purpose of ORS 97.923 to
97.949, 97.992, 97.994 and 692.180 to assure funds for performance to those
purchasers who contract through prearrangement sales contracts for the purchase
of funeral or cemetery merchandise or services, and through preconstruction
sales contracts for undeveloped interment spaces. It is also the purpose of ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 to provide for the certification
or registration of persons selling or offering for sale prearrangement sales
contracts and preconstruction sales contracts, the creation and administration
of prearrangement sales contract and preconstruction sales contract trust
funds, the disbursement and allocation of trust funds upon the certified
provider’s performance of its contractual obligations and to provide protection
for the purchaser upon the certified provider’s default. [Formerly 128.405;
2007 c.661 §13]
Note:
See note under 97.923.
97.926
Rulemaking authority. The Director of the Department
of Consumer and Business Services may adopt rules that are necessary or
appropriate to:
(1) Protect purchasers of prearrangement
sales contracts and preconstruction sales contracts and the public; and
(2) Administer ORS 97.923 to 97.949. [2007
c.661 §25]
Note:
See note under 97.923.
97.927
Applicability of ORS 97.923 to 97.949. (1) Except as
provided in this section, ORS 97.923 to 97.949, 97.992, 97.994 and 692.180
apply to all certified providers, master trustees and salespersons who sell or
offer for sale prearrangement sales contracts or preconstruction sales
contracts.
(2) ORS 97.923 to 97.949, 97.992, 97.994
and 692.180 do not apply to:
(a) Agreements to sell or sales made by
endowment care cemeteries under ORS 97.929; or
(b) Any nonprofit memorial society
charging less than a $100 membership fee.
(3) Notwithstanding subsection (2) of this
section, ORS 97.937 applies to:
(a) Agreements to sell or sales made by
endowment care cemeteries under ORS 97.929; or
(b) Any nonprofit memorial society
charging less than a $100 membership fee. [Formerly 128.407; 2003 c.362 §2;
2007 c.661 §14]
Note:
See note under 97.923.
97.929
Exceptions to ORS 97.923 to 97.949. (1) The
provisions of ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply to:
(a) Agreements to sell or sales of graves,
crypts or niches where such graves, crypts or niches are in existence at the
time of the sale or agreement to sell and are located in an endowment care
cemetery as defined in ORS 97.810.
(b) Agreements to sell or sales of crypts
or niches where such crypts or niches are not in existence at the time of the
sale or agreement to sell and are to be located in an endowment care cemetery,
provided that:
(A) Thirty-five percent of the sales price
of each crypt or niche described in this paragraph is deposited in accordance
with the provisions of ORS 97.937; or
(B) Such endowment care cemetery deposits a
bond with a corporate surety authorized to do business in this state, or an
irrevocable letter of credit issued by an insured institution, as defined in
ORS 706.008. The bond or letter of credit shall be in an amount equal to 35
percent of the total sales price of all crypts or niches described in this
paragraph that have been sold by the endowment care cemetery and that have not
yet been completed.
(c) Agreements to sell or sales of burial
vaults or markers for installation in an endowment care cemetery, provided
that:
(A) Sixty-six and two-thirds percent of
the sale price of such vaults or markers is deposited in accordance with the
provisions of ORS 97.937;
(B) Such endowment care cemetery is at the
time of the sale or agreement to sell and for not less than 24 months before
such sale or agreement has been in continuous operation as an endowment care
cemetery and has assumed the obligation to supply and install the vault or
marker and maintain it as part of its endowment care program; and
(C) Such endowment care cemetery deposits
with the Director of the Department of Consumer and Business Services:
(i) A bond in a form approved by the
director in the amount of $10,000 issued by a corporate surety authorized to do
business in this state; or
(ii) An irrevocable letter of credit in a
form approved by the director in the amount of $10,000 issued by an insured
institution, as defined in ORS 706.008.
(2) Notwithstanding the exception provided
in subsection (1) of this section, a person who would otherwise have a claim
against a certified provider, a master trustee or a salesperson under the
provisions of ORS 97.923 to 97.949 or ORS chapter 692 shall have a right
against the bond or letter of credit described in subsection (1)(b) and (c) of
this section. [Formerly 128.412; 2003 c.271 §1]
Note:
Section 2, chapter 68, Oregon Laws 1999, provides:
Sec.
2. (1) The amendments to ORS 128.412
[renumbered 97.929] by section 1 of this 1999 Act apply only to agreements to
sell crypts or niches entered into on or after the effective date of this 1999
Act [October 23, 1999], and sales of crypts and niches made on or after the
effective date of this 1999 Act.
(2) An endowment care cemetery that
deposited a bond or an irrevocable letter of credit under the provisions of ORS
128.412 (2)(b) (1997 Edition) before the effective date of this 1999 Act must
continue to maintain the bond or irrevocable letter of credit in the amount
provided by ORS 128.412 (2)(b) (1997 Edition) until such time as all the crypts
and niches that were part of the development covered by the bond or letter of
credit are completed. Any endowment care cemetery that maintains a bond or
letter of credit pursuant to this subsection is not required to maintain a bond
or letter of credit in the amount required by ORS 128.412 (2)(b) [renumbered
97.929 (2)(b)], as amended by section 1 of this 1999 Act, for the purpose of
crypts and niches located in the development covered by the bond or letter of
credit maintained under the provisions of this subsection, but the endowment
care cemetery must maintain a bond or letter of credit in the amount required
by ORS 128.412 (2)(b) [renumbered 97.929 (2)(b)], as amended by section 1 of
this 1999 Act, for sales of, and agreements to sell, crypts or niches located
in any development commenced on or after the effective date of this 1999 Act.
[1999 c.68 §2]
Note:
97.929 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
97.930
[1977 c.715 §§2,3; renumbered 97.975 in 2001]
97.931
Registration of salesperson for endowment care cemeteries, preconstruction
sales and prearrangement sales; rules; background check; civil penalties.
(1) A salesperson may not engage in prearrangement sales made by endowment care
cemeteries under ORS 97.929 or in preconstruction sales or prearrangement sales
unless the salesperson is registered with the State Mortuary and Cemetery Board
or holds a current funeral service practitioner license, embalmer license,
funeral service practitioner apprentice registration or embalmer apprentice
registration. The board by rule shall:
(a) Establish procedures for issuing
salesperson registrations under this subsection;
(b) Establish standards for determining
whether a salesperson registration should be issued;
(c) Set renewal and salesperson
registration fees; and
(d) Require biennial renewal of
salesperson registrations.
(2) The board may conduct a background
check of any salesperson applying for registration under subsection (1) of this
section. The background check may include information solicited from the
Department of State Police. After consideration of information obtained from
any background check and any other information in its possession, the board
shall determine whether to register the salesperson.
(3)(a) The board may impose a civil
penalty of up to $1,000 per violation or suspend, revoke or refuse to issue or
renew the registration of a salesperson described in subsection (1) of this
section upon a determination that the applicant or holder has not complied with
the provisions of ORS 97.923 to 97.949 or ORS chapter 692, or any rules adopted
thereunder. When the board proposes to take such action, the person affected by
the action shall be accorded notice and an opportunity for hearing as provided
by ORS chapter 183. The board shall notify the Director of the Department of
Consumer and Business Services of its intent to take action against a
salesperson or person acting as a salesperson.
(b) The board shall suspend, revoke or
refuse to issue or renew the registration of a salesperson if the director
requests the board to take such action.
(4) Fees and other moneys received by the
board under this section shall be deposited into the State Mortuary and
Cemetery Board Account established in ORS 692.375. [Formerly 128.414; 2005
c.726 §2]
Note:
See note under 97.923.
97.933
Certification of provider of prearrangement or preconstruction sales; annual
reports; audits; fees. (1) A provider may not engage in
prearrangement sales or preconstruction sales unless the provider is certified
by the Director of the Department of Consumer and Business Services. The
director shall:
(a) Establish procedures for issuing
certificates required by this section.
(b) Establish standards for determining
whether a certificate should be issued.
(c) Set certification and renewal fees.
(d) Require annual renewal of
certification.
(e) Establish standards for rules of
conduct of certified providers.
(2) The fees described in this section
shall be reasonable and shall defray the costs associated with the
administration of ORS 97.923 to 97.949.
(3)(a) Every certified provider shall file
an annual report with the director on forms provided by the director. The
annual report shall contain any information reasonably considered necessary by
the director, including but not limited to:
(A) A disclosure of changes in trust
deposits;
(B) The number of consecutively numbered
prearrangement or preconstruction sales contracts sold during the reporting
period;
(C) A complete inventory of the funeral
merchandise, cemetery merchandise or a combination thereof delivered in lieu of
trust fund requirements under ORS 97.941, including:
(i) The location of the merchandise;
(ii) Merchandise serial numbers or
warehouse receipt numbers identified by the name of the purchaser or the
beneficiary; and
(iii) The statement of the certified
provider that each item of merchandise is in the seller’s possession at the
specified location; and
(D) The number of withdrawals from or
terminations of any trusts.
(b) If the annual report is not filed or
is filed and shows any material discrepancy, the director may take appropriate
action and send notification of the matter to the State Mortuary and Cemetery
Board.
(c) The director may relieve a certified
provider of the duty to file the annual report upon a determination that the
certified provider has performed all obligations under the prearrangement sales
contract or preconstruction sales contract, or that such obligations lawfully
have been assumed by another or have been discharged or canceled.
(4) The director may audit the records of
a certified provider that relate to prearrangement sales or preconstruction
sales, as the director may consider appropriate. The director may refer any
matter outside of normal auditing procedures to the office of the Attorney
General for investigation and send notification of the referral to the State
Mortuary and Cemetery Board.
(5) The conduct of individuals, including
salespersons as defined in ORS 97.923, employed by a certified provider is the
direct responsibility of the certified provider.
(6) A certificate issued to a provider is
not transferable. A person that seeks to purchase or otherwise acquire control
of a cemetery or funeral establishment that is a certified provider shall first
apply to the director and obtain approval of the purchase or change in control.
(7) A certificate issued to a provider
becomes inactive when the certificate is surrendered to the director. The
director retains jurisdiction over the provider as long as trust funds remain
on deposit for prearrangement sales contracts or preconstruction sales
contracts. While the certificate is inactive, the provider shall:
(a) Cease all prearrangement sales to the
public;
(b) Collect and deposit into trust all
installment funds paid toward contracts sold prior to becoming inactive;
(c) Seek disbursal of trust funds only in
accordance with the requirements of the written contracts and ORS 97.923 to
97.949 until the funds have been exhausted; and
(d) Continue to submit required annual
reports and renewal fees until no trust funds remain on deposit. [2001 c.796 §1;
2003 c.362 §3; 2007 c.661 §15]
Note:
See note under 97.923.
97.935
Registration of master trustees; annual reports; annual audits; fees.
(1) A person may not operate as a master trustee unless the person is
registered with the Director of the Department of Consumer and Business
Services. The director shall:
(a) Establish procedures for registering
persons under this section.
(b) Establish standards for master
trustees.
(c) Set registration and renewal fees.
(d) Establish standards for rules of
conduct of master trustees.
(2)(a) Every master trustee shall file an
annual report with the director on forms provided by the director. The annual
report shall contain any information reasonably considered necessary by the
director, including but not limited to:
(A) A disclosure of changes in trust
deposits; and
(B) A list of all certified providers for
which the master trustee holds funds and the total amount of funds held for
each certified provider.
(b) The director may take appropriate
action under ORS 97.948 and 97.949 if a master trustee fails to file the annual
report or the report contains any material discrepancy.
(c) The director may relieve a master
trustee of the duty to file the annual report upon a determination that the
master trustee has performed all obligations under the trust agreement with
each certified provider, or that the master trustee’s obligations have been
lawfully assumed by another person or have been discharged or canceled.
(3) The director may conduct an annual
audit of a master trustee. The director shall prescribe the form of audits
under this section.
(4) A master trustee who is audited under
this section shall pay all expenses and costs incurred by the director in
conducting the audit. [2001 c.796 §2; 2003 c.362 §4; 2007 c.661 §16]
Note:
See note under 97.923.
97.936
Emergency orders of suspension or restriction.
(1) In addition to other actions authorized under ORS 97.948 (2), the Director
of the Department of Consumer and Business Services may:
(a) Issue an emergency order suspending or
restricting a certificate or registration or ordering a certified provider or
master trustee or a person acting as a certified provider or master trustee to
cease and desist from specified conduct; or
(b) Take other action deemed necessary by
the director in the circumstances.
(2) The director shall promptly provide
opportunity for hearing pursuant to ORS chapter 183.
(3) Emergency orders are:
(a) Effective when issued;
(b) Reviewable as provided in ORS 183.480;
and
(c) Enforceable in the courts of this state.
[2007 c.661 §23]
Note:
See note under 97.923.
97.937
Deposit of trust funds made by endowment care cemeteries.
(1) This section applies to trust deposits required to be made by endowment
care cemeteries under ORS 97.929.
(2) As used in this section, “common trust
account” means trust funds received by a provider from two or more purchasers.
(3) All such trust funds shall be
deposited by the provider with a financial institution in the State of Oregon
carrying deposit insurance, within 15 days after receipt thereof. A trust fund
shall be held in a separate account in the name of the provider followed by the
words “funeral plan trust account,” in trust for the person for whom such
prearranged funeral plan is made, or in a common trust account in the name of
the provider in trust for each person for whom such prearranged funeral plan is
made, until a trust fund is released under any of the following conditions:
(a) Upon presentation of proof of the
death of the person for whom a prearranged funeral plan is made, the financial
institution shall release the principal and accrued income allocable to that
person’s account to the provider.
(b) Upon presentation of the written
request of the purchaser of a revocable trust, the financial institution shall release
the principal and accrued income allocable to the purchaser’s account as
directed in such request.
(c) Upon presentation of proof of the
death, dissolution, insolvency or merger with another of the provider of a
revocable trust, the financial institution shall release the principal and
accrued income allocable to each purchaser’s account to that purchaser.
(d) Upon presentation of proof of the
death, dissolution, insolvency or merger with another of the provider of an
irrevocable trust, the financial institution shall continue to hold such trust
fund subject to the funeral plan trust, and upon appointment of a successor
provider by the purchaser, the purchaser’s legal representative, the Director
of the Department of Consumer and Business Services or a court of competent
jurisdiction, the financial institution shall release such trust fund to the
successor provider only as provided in paragraph (a) of this subsection.
(4) If trust funds are held in a common
trust account under subsection (3) of this section, the provider shall maintain
records showing the purchaser and beneficiary of each individual trust fund in
the account and the allocation to each individual trust fund of interest earned
by the account. The records concerning allocation of interest must be updated
at least annually.
(5) The provider may appoint a successor
depository. The original depository shall only release the trust funds to the
successor depository as described in subsections (1) to (4) of this section.
(6) The financial institution is not
responsible for the fulfillment of any prearranged funeral plan, excepting only
such financial institution shall release a trust fund as provided in this
section.
(7) The director may appoint a successor
provider upon a determination that the original provider has ceased to provide
the kinds of services and things which the original provider agreed to provide,
that the purchaser or the purchaser’s legal representative cannot be readily
identified or contacted and that the appointment of a successor provider is
appropriate in order to protect the interests of the trust beneficiaries.
Financial institutions holding deposits of such trust funds shall change their
records to reflect such appointment of a successor provider upon receipt of written
notice of the appointment from the director. Where the director proposes to
take such action under this subsection, the provider being replaced shall be
accorded notice and an opportunity for hearing as provided in ORS chapter 183. [Formerly
128.415; 2007 c.661 §17]
Note:
Section 16, chapter 813, Oregon Laws 1987, provides:
Sec.
16. Notwithstanding the repeal of ORS
128.410 by section 17 of this Act and the amendments to ORS 128.415 [renumbered
97.937] by section 12 of this Act, ORS 128.410 and ORS 128.415 (1985
Replacement Part) shall continue to apply to any prearranged funeral plan
entered into prior to the effective date of this Act [September 27, 1987].
[1987 c.813 §16]
Note:
97.937 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
97.939
Prearrangement or preconstruction sales contracts; contents; delivery.
(1) Three copies of a written sales contract shall be executed for each
prearrangement sales contract or preconstruction sales contract sold by a
certified provider. The certified provider shall retain one copy of the
contract and a copy of the completed contract shall be given to:
(a) The purchaser; and
(b) The depository or the master trustee,
if applicable.
(2) Upon receiving a trust deposit under
ORS 97.941, the master trustee shall sign a copy of the contract received under
subsection (1) of this section, retain a copy for its files and return the
contract to the purchaser.
(3) Each completed contract shall:
(a) Comply with the plain language
standards described in ORS 180.545 (1);
(b) Be consecutively numbered;
(c) Have a corresponding consecutively
numbered receipt;
(d) Be preprinted or, if the certified
provider uses a master trustee, be obtained from the master trustee;
(e) Identify the purchaser and certified
provider who sold the contract;
(f) Specify whether the contract is a
guaranteed contract or a nonguaranteed contract;
(g) Specify the specific funeral or
cemetery merchandise or services or undeveloped interment spaces included and
not included in the contract; and
(h) If a guaranteed contract, disclose
that the certified provider may retain 10 percent of the sales price.
(4)(a) Notwithstanding ORS 97.943 (8), in
the case of a prearrangement sales contract, if at the time of entering into
the contract, the beneficiary of the contract is a recipient of public
assistance or reasonably anticipates becoming a recipient of public assistance,
the contract may provide that the contract is irrevocable.
(b) The contract may provide for an
election by the beneficiary, or by the purchaser on behalf of the beneficiary,
to make the contract thereafter irrevocable if after the contract is entered
into, the beneficiary becomes eligible or seeks to become eligible for public
assistance. [Formerly 128.421; 2007 c.661 §18]
Note:
See note under 97.923.
97.941
Prearrangement or preconstruction trust fund deposits.
(1) Upon receiving anything of value under a prearrangement sales contract or
preconstruction sales contract, the certified provider who sold the contract
shall deposit the following amounts into one or more trust funds maintained
pursuant to ORS 97.923 to 97.949, 97.992, 97.994 and 692.180:
(a) Ninety percent of the amount received
in payment of a guaranteed prearrangement sales contract or guaranteed
preconstruction sales contract. The remaining 10 percent shall be paid to the
provider who sold the contract; or
(b) One hundred percent of the amount
received in payment of a nonguaranteed prearrangement sales contract or
nonguaranteed preconstruction sales contract.
(2) All trust deposits required by ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 shall be placed in a depository or
delivered to a master trustee within five business days of their receipt.
(3)(a) The trust deposits of a provider
that does not use the services of a master trustee shall be maintained in a
depository, except that the provider may invest the trust funds in a manner
that is, in the opinion of the provider, reasonable and prudent under the
circumstances.
(b) A provider that invests trust funds
may invest the funds only in:
(A) Certificates of deposit;
(B) U.S. Treasuries;
(C) Issues of U.S. government agencies;
(D) Guaranteed investment contracts; or
(E) Banker’s acceptances or corporate
bonds rated A or better by Standard & Poor’s Corporation or Moody’s
Investors Service.
(c) All investments made under paragraph
(b) of this subsection shall be placed in the custody of the depository in
which the trust funds were originally deposited or any other depository that
may qualify under ORS 97.923 to 97.949.
(d) Prearrangement sales contract trust
fund and preconstruction sales contract trust fund accounts shall be in the
name of the provider who sold the contract under ORS 97.923 to 97.949, 97.992,
97.994 and 692.180.
(4) Funds deposited in the trust fund
account shall be identified in the records of the provider by the name of the
purchaser and beneficiary and adequate records shall be maintained to allocate
all earnings to each prearrangement sales contract or preconstruction sales
contract. Nothing shall prevent the provider from commingling the deposits in
any such trust fund account for purposes of managing and investing the funds. A
common trust fund account shall be identified by the name of the provider.
(5) When a prearrangement sales contract
or preconstruction sales contract includes rights of interment and funeral or
cemetery merchandise or services, the application of payments received under
the contract shall be clearly provided in the contract.
(6) Any person engaging in prearrangement
sales or preconstruction sales who enters into a combination sale which
involves the sale of items subject to trust and any item not subject to trust
shall be prohibited from increasing the sales price of those items not subject
to trust with the purpose of allocating a lesser sales price to items which
require a trust deposit.
(7)(a) A provider may appoint a successor
provider. The depository shall release the trust funds deposited under ORS
97.923 to 97.949, 97.992, 97.994 and 692.180 and accrued income only to the
successor provider as described in ORS 97.943 and 97.944 or upon presentation of
the written request of the purchaser.
(b) If appointing a successor provider
under this subsection, the original provider shall notify the Director of the
Department of Consumer and Business Services of the proposed change at least 30
days prior to the appointment.
(8)(a) A provider may appoint a successor
depository or a master trustee as defined in ORS 97.923.
(b) If appointing a successor depository
or master trustee under this subsection, the provider, the successor depository
and the master trustee must notify the director of the proposed change at least
30 days prior to the appointment.
(9)(a) The director may appoint a
successor certified provider upon a determination that:
(A) The original certified provider has
ceased to provide the services and merchandise that the original certified
provider agreed to provide;
(B) The certificate issued to the original
certified provider has been revoked or surrendered; and
(C) The appointment of a successor
certified provider is appropriate in order to protect the interests of the
purchasers and beneficiaries of prearrangement sales contracts or
preconstruction sales contracts.
(b) Depositories or master trustees
holding deposits of trust funds by the original certified provider shall change
their records to reflect the appointment of a successor certified provider upon
receipt of written notice of the appointment from the director.
(10) The trust fund accounts shall be a
single purpose fund. In the event of the provider’s bankruptcy, the funds and
accrued income shall not be available to any creditor as assets of the
provider, but shall be distributed to the purchasers or managed for their
benefit by the trustee in bankruptcy, receiver or assignee.
(11)(a) If the original provider is
licensed under ORS chapter 692 and voluntarily surrenders the license to the
State Mortuary and Cemetery Board, the original provider shall transfer
responsibility as provider under this section to a successor provider who holds
a certificate issued by the director under ORS 97.933.
(b) If the original provider is not
licensed under ORS chapter 692, upon presentation of proof of the death,
dissolution, insolvency or merger with another provider of the original
provider, the depository shall release the prearrangement trust fund deposits
or preconstruction trust fund deposits to the purchaser.
(c) If the original provider is licensed
under ORS chapter 692, upon proof of the death, insolvency or involuntary
surrender of the license of the original provider, the depository shall release
the prearrangement trust fund deposits or preconstruction trust fund deposits
to the purchaser.
(12) The purchaser or beneficiary of a
prearrangement sales contract or preconstruction sales contract may be named
cotrustee with the provider with the written consent of the purchaser or
beneficiary.
(13) A provider who has not appointed a
master trustee shall have an annual audit of all trust account funds performed
by an independent certified public accountant in accordance with generally
accepted accounting procedures. The provider shall make the audit results
available to the director if requested.
(14) As used in this section, “common
trust fund account” means trust funds received by a provider from two or more
purchasers. [Formerly 128.423; 2007 c.661 §19]
Note:
See note under 97.923.
97.942
Appointment of receiver; criteria. (1) The
Attorney General, on behalf of the Director of the Department of Consumer and
Business Services, may petition the circuit courts of this state for
appointment of a receiver for a certified provider or person acting as a
certified provider without certification.
(2) If the court determines that a
receivership is necessary or advisable, the court shall appoint a receiver:
(a) When a receiver would ensure the orderly
and proper conduct of a provider’s professional business and affairs during or
in the aftermath of an administrative proceeding to revoke or suspend the
provider;
(b) When a receiver would protect the
public’s interest and rights in the business, premises or activities of the
provider sought to be placed in receivership;
(c) Upon a showing of serious and repeated
violations of ORS 97.923 to 97.949 demonstrating an inability or unwillingness
to comply with the provisions of ORS 97.923 to 97.949;
(d) When a receiver would prevent loss,
wasting, dissipation, theft or conversion of assets that should be marshaled
and held available for the honoring of obligations under ORS 97.923 to 97.949;
or
(e) When the court receives proof of other
grounds that the court deems good and sufficient for instituting receivership
action concerning the receiver sought to be placed in receivership.
(3)(a) A receivership under this section
may be temporary or for the winding up and dissolution of a business, as the
director may request and the court determines to be necessary or advisable in
the circumstances.
(b) Venue of receivership proceedings may
be, at the director’s request, in Marion County or the county where the subject
of the receivership is located. The appointed receiver shall be the director or
a person that the director nominates and that the court approves.
(c) The director may expend money from
budgeted funds or the Funeral and Cemetery Consumer Protection Trust Fund to
implement a receivership. Any expenditures are a claim against the estate in
the receivership proceedings. [2007 c.661 §24]
Note:
See note under 97.923.
97.943
Distributions from prearrangement trust fund deposits.
(1) A depository may not make any distributions from prearrangement sales contract
trust deposits except as provided in this section.
(2) The principal of a trust created
pursuant to a prearrangement sales contract shall be paid to the certified
provider who sold the contract if the certified provider who sold the contract
swears, by affidavit, that the certified provider has delivered all merchandise
and performed all services required under the prearrangement sales contract and
delivers to the depository one of the following:
(a) A certified death certificate of the
beneficiary; or
(b) A sworn affidavit signed by the
certified provider and by:
(A) One member of the beneficiary’s
family; or
(B) The executor of the beneficiary’s
estate.
(3) The principal of a trust created
pursuant to a prearrangement sales contract shall be paid to the purchaser if
the original provider is no longer qualified to serve as provider under ORS
97.941 (11).
(4) Upon completion by the certified
provider of the actions described in subsection (2) of this section, the
depository shall pay to the certified provider from the prearrangement sales
contract trust fund an amount equal to the sales price of the merchandise
delivered.
(5) Upon the final payment to the
certified provider of the principal in trust under subsection (2) of this
section, the undistributed earnings of the trust shall be paid to:
(a) The certified provider who sold the
contract if the contract is a guaranteed contract; or
(b) The contract purchaser, or the
purchaser’s estate, if the contract is a nonguaranteed contract.
(6) The depository may rely upon the
certifications and affidavits made to it under the provisions of ORS 97.923 to
97.949, 97.992, 97.994 and 692.180, and shall not be liable to any person for
such reliance.
(7) If for any reason a certified provider
who sold the prearrangement sales contract has refused to comply, or cannot or
does not comply with the terms of the prearrangement sales contract within a
reasonable time after the certified provider is required to do so, the
purchaser or heirs or assigns or duly authorized representative of the
purchaser or the beneficiary shall have the right to a refund in the amount
equal to the sales price paid for undelivered merchandise and unperformed
services plus undistributed earnings amounts held in trust attributable to such
contract, within 30 days of the filing of a sworn affidavit with the certified
provider who sold the contract and the depository setting forth the existence
of the contract and the fact of breach. A copy of this affidavit shall be filed
with the Director of the Department of Consumer and Business Services. In the
event a certified provider who has sold a prearrangement sales contract is
prevented from performing by strike, shortage of materials, civil disorder,
natural disaster or any like occurrence beyond the control of the certified
provider, the certified provider’s time for performance shall be extended by
the length of such delay.
(8) Except for an irrevocable contract
described in ORS 97.939 (4), at any time prior to the death of the beneficiary
of a prearrangement sales contract, the purchaser of the prearrangement sales
contract may cancel the contract and shall be entitled to a refund of all
amounts paid on the contract, all amounts in trust including earnings allocated
to the contract that are in excess of all amounts paid on the contract and
unallocated earnings on trust contract amounts from the date of the last
allocation to the date of the refund request, less any amounts paid for
merchandise already delivered or services already performed, which amounts may
be retained by the certified provider as compensation.
(9) Notwithstanding ORS 97.941 (4) and
subsection (5) of this section, upon receiving a sworn affidavit from the
master trustee or provider stating that qualifying expenses, taxes or fees have
been incurred, a depository shall allow a master trustee or provider to pay
from earnings of trust fund deposits any expenses, accounting fees, taxes,
depository fees, investment manager fees and other fees as may be necessary to
enable the provider to comply with the reporting required by ORS 97.923 to
97.949, and to perform other services for the trust as may be authorized by ORS
97.923 to 97.949. Any payment of expenses or fees from earnings of a trust fund
deposit under this subsection shall not:
(a) Exceed an amount equal to two percent
per calendar year of the value of the trust as determined on the first day of
January of each calendar year;
(b) Include the payment of any fee to the
provider in consideration for services rendered as provider; or
(c) Reduce, diminish or in any other way
lessen the value of the trust fund deposit so that the services or merchandise
provided for under the contract are reduced, diminished or in any other way
lessened. [Formerly 128.425; 2005 c.66 §1; 2007 c.661 §20]
Note:
See note under 97.923.
97.944
Distributions from preconstruction trust fund deposits.
(1) A depository may not make any distributions from preconstruction sales
contract trust deposits except as provided in this section.
(2)(a) The construction or development of
undeveloped interment spaces shall be commenced on the phase of construction or
development, or the section or sections of spaces in which sales are made
within five years of the date of the first sale. The certified provider who
sold the preconstruction sales contract shall give written notice including a
description of the project to the Director of the Department of Consumer and
Business Services no later than 30 days after the first sale.
(b) Once commenced, construction or development
shall be pursued diligently to completion. The first phase of construction must
be completed within seven years of the first sale. However, any delay caused by
strike, shortage of materials, civil disorder, natural disaster or any similar
occurrence beyond the control of the certified provider extends the time of
completion by the length of a delay.
(c) If construction or development is not
commenced or completed within the times specified, any contract purchaser may
surrender and cancel the contract and upon cancellation shall be entitled to a
refund of the actual amounts paid toward the purchase price, together with
interest accrued on the amount deposited to the trust.
(3) Except as otherwise authorized by this
section, every certified provider selling undeveloped spaces shall provide
facilities for temporary interment for purchasers or beneficiaries of contracts
who die prior to completion of the space. Such temporary facilities shall be
constructed of permanent materials, and, insofar as practical, be landscaped
and groomed to the extent customary in that community. The heirs, assigns or
personal representative of a purchaser or beneficiary shall not be required to
accept temporary underground interment space where undeveloped space contracted
for was an aboveground entombment or inurnment space. In the event that
temporary facilities as described in this subsection are not made available
upon the death of a purchaser or beneficiary, the heirs, assigns or personal
representative is entitled to a refund of the entire sales price paid plus
undistributed interest attributable to such amount while in trust.
(4) If the certified provider who sold the
preconstruction sales contract delivers a completed space acceptable to the
heirs, assigns or personal representative of a purchaser or beneficiary, other
than a temporary facility, in lieu of the undeveloped space purchased, the
certified provider shall provide the depository with a delivery certificate and
all sums deposited under the preconstruction sales contract and income
allocable to that contract shall be paid to the certified provider.
(5) During the construction or development
of interment spaces, upon receiving the sworn certification of the certified
provider who sold the preconstruction sales contract and the contractor, the
depository shall disburse from the trust fund the amount equivalent to the cost
of performed labor or delivered materials as certified, not to exceed the
amounts deposited and income allocable to those contracts. A person who
executes and delivers a completion certificate with actual knowledge of a
falsity contained therein shall be considered in violation of ORS 97.923 to
97.949 and 692.180.
(6) Upon completion of the phase of
construction or development, section or sections of the project as certified to
the depository by the certified provider and the contractor, the trust
requirements shall terminate and all funds held in the preconstruction sales
contract trust fund attributable to the completed phase, section or sections
shall be paid to the certified provider who sold the preconstruction sales
contract.
(7) Upon the payment to a certified
provider of preconstruction sales contract trust funds under subsection (4) or
(6) of this section, the undistributed income of the trust shall be paid to:
(a) The certified provider who sold the
contract if the contract is a guaranteed contract; or
(b) The contract purchaser, or the
purchaser’s estate, if the contract is a nonguaranteed contract.
(8) If the preconstruction sales contract
purchaser defaults in making payments under an installment preconstruction
sales contract, and default continues for at least 30 days after the purchaser
has received written notice of default, the certified provider who sold the
contract may cancel the contract and withdraw from the trust fund the entire
balance of the defaulting purchaser’s account as liquidated damages. Upon
certification of the default, the depository shall deliver the balance to the
certified provider. The depository may rely on the certification and affidavits
made to it under the provisions of ORS 97.923 to 979.949, 97.992, 97.994 and
692.180 and shall not be liable to any person for such reliance. [Formerly
128.430; 2007 c.661 §21]
Note:
See note under 97.923.
97.945
Funeral and Cemetery Consumer Protection Trust Fund; fee; rules.
(1) Every prearrangement sales contract or preconstruction sales contract
seller shall pay to the Director of the Department of Consumer and Business
Services a $5 fee for each prearrangement sales contract or preconstruction
sales contract entered into, to be paid into a special income earning fund in
the State Treasury, separate from the General Fund, known as the Funeral and
Cemetery Consumer Protection Trust Fund. The fees shall be remitted to the
director annually within 30 days after the end of December for all contracts
that have been entered into during the 12-month period.
(2) Except as provided in this section,
the fund shall be used solely for the purpose of providing restitution to
purchasers who have suffered pecuniary loss arising out of prearrangement sales
contracts or preconstruction sales contracts. The fund may be used for payment
of actual administrative expenses incurred in administering the fund. All
moneys in the Funeral and Cemetery Consumer Protection Trust Fund are
appropriated continuously to the director for the payment of restitution under
this section and the payment of expenses incurred in performing the duties and
functions of the director required under ORS 97.923 to 97.949, 97.992, 97.994
and 692.180.
(3) The director shall administer the fund
and shall adopt rules governing the payment of restitution from the fund.
(4) Payments for restitution shall be made
only upon order of the director where the director determines that the
obligation is noncollectible from the certified provider. Restitution shall not
exceed the amount of the sales price paid plus interest at the statutory rate.
(5) The fund shall not be applied toward
any restitution for losses on a prearrangement sales contract or
preconstruction sales contract entered into prior to September 27, 1987.
(6) The fund shall not be allocated for
any purpose other than that specified in ORS 97.923 to 97.949, 97.992, 97.994
and 692.180.
(7) If the director proposes to deny an
application for restitution from the fund, the director shall accord an
opportunity for a hearing as provided in ORS chapter 183.
(8) Notwithstanding any other provision of
this section, the payment of restitution from the fund shall be a matter of
grace and not of right and no purchaser shall have vested rights in the fund as
a beneficiary or otherwise.
(9) The status of the fund shall be
reviewed annually by the director. If the review determines that the fund
together with all accumulated income earned on the fund is sufficient to cover
costs of potential claims against the fund and that the total number of
outstanding claims filed against the fund is less than 10 percent of the fund’s
current balance, then payments to the fund shall be adjusted accordingly at the
discretion of the director. [Formerly 128.435; 2003 c.362 §5]
Note:
See note under 97.923.
97.946
Advertising and marketing prohibitions. (1) A person
may not engage in unsolicited door to door or telephone advertising and
marketing of prearrangement sales contracts or preconstruction sales contracts.
The costs of advertising and marketing may not be paid from trust funds.
(2) Advertising and marketing a
prearrangement sales contract or a preconstruction sales contract by a funeral
service practitioner, embalmer or funeral service establishment licensed under
ORS chapter 692 does not constitute a violation of ORS 692.180 (1)(c). [Formerly
128.440]
Note:
See note under 97.923.
97.947
Examination of providers and master trustees by director; subpoena power;
depositions. (1)(a) The Director of the Department
of Consumer and Business Services may examine the conditions and resources,
including sales contracts, of a certified provider, master trustee or person
acting as a certified provider or master trustee without certification or
registration to determine whether the certified provider, master trustee or
person acting as a certified provider or master trustee without certification
or registration is complying with ORS 97.923 to 97.949, the rules of the
director and any other laws of this state applicable to a certified provider or
master trustee.
(b) In addition to the authority conferred
by ORS 97.948, the director may require a certified provider, master trustee or
person acting as a certified provider or master trustee without certification
or registration to pay the actual and reasonable costs of the examination.
(2) For the purpose of an examination
under this section, the director may administer oaths and affirmations, compel
the attendance of witnesses, take evidence and require the production of books,
papers, correspondence, memoranda, agreements or other documents or records
that the director considers relevant or material to the examination.
(3) If a certified provider, master
trustee or person acting as a certified provider or master trustee without
certification or registration fails to comply with a subpoena issued under this
section or a party or witness refuses to testify on any matter, the judge of
the circuit court for any county, on the application of the director, shall
compel obedience by proceedings for contempt as in the case of disobedience of
the requirements of a subpoena issued from the court or a refusal to testify on
a matter before the court.
(4) Each witness who appears before the
director under a subpoena issued under this section shall receive the fees and
mileage provided for witnesses in ORS 44.415 (2), except that a witness
subpoenaed at the instance of parties other than the director or an examiner
may not be compensated for attendance or travel unless the director certifies
that the testimony of the witness was material to the matter investigated.
(5) During the course of any examination,
the director may cause the depositions of witnesses to be taken in the manner
prescribed by law for like depositions in civil suits in the circuit court. [2001
c.796 §3; 2003 c.362 §6; 2005 c.338 §1]
Note:
Section 30, chapter 338, Oregon Laws 2005, provides:
Sec.
30. The amendments to ORS 97.947 by section
1 of this 2005 Act apply to:
(1) Conditions and resources, including
sales contracts, in existence before, on or after the effective date of this
2005 Act [January 1, 2006].
(2) Conduct occurring before, on or after
the effective date of this 2005 Act. [2005 c.338 §30]
Note:
See note under 97.923.
97.948
Grounds for discipline by director for violation of ORS 97.923 to 97.949;
suspension and revocation of certificate or registration; civil penalties;
notification of board. (1) The Director of the
Department of Consumer and Business Services may discipline a certified
provider, master trustee or person acting as a certified provider or master
trustee without certification or registration who has been found by an audit or
examination conducted by the director:
(a) To be in violation of ORS 97.923 to
97.949;
(b) To have liabilities that exceed
assets;
(c) To be unable to meet obligations as
they come due; or
(d) To be in a financial condition that
fails to adequately protect the interests of customers.
(2) In disciplining a certified provider,
master trustee or person acting as a certified provider or master trustee
without certification or registration under subsection (1) of this section, the
director may take the following actions:
(a) Impose probation.
(b) Suspend the certificate or
registration.
(c) Revoke the certificate or
registration.
(d) Place limitations on the certificate
or registration.
(e) Refuse to issue or renew a certificate
or registration.
(f) Issue an order to cease and desist
from the activities that support the discipline.
(g) Take any other disciplinary action
that the director finds proper, including assessment of the costs of the
investigation and disciplinary proceedings and assessment of a civil penalty
not to exceed $10,000 per violation.
(3) If the certificate or registration of
a certified provider or master trustee is suspended under this section, the
holder of the certificate or registration may not engage in the activities
allowed by the certificate or registration during the term of suspension. Upon
the expiration of the term of suspension, the director shall reinstate the
certificate or registration if the conditions for which the certificate or
registration was suspended no longer exist.
(4) The director shall enter each case of
disciplinary action on the records of the Department of Consumer and Business
Services.
(5) Civil penalties under this section may
be imposed as provided in ORS 183.745.
(6) If the director takes disciplinary
action under this section, the director may send a notice of the action to the
State Mortuary and Cemetery Board and to the Attorney General. [2001 c.796 §4;
2003 c.362 §7; 2005 c.338 §2]
Note:
Section 31, chapter 338, Oregon Laws 2005, provides:
Sec.
31. The order authorized by the amendments
to ORS 97.948 by section 2 of this 2005 Act applies to actions occurring
before, on or after the effective date of this 2005 Act [January 1, 2006]. [2005
c.338 §31]
Note:
See note under 97.923.
97.949
Notification by director to appropriate federal, state or local law enforcement
officer of violation of ORS 97.923 to 97.949. (1) If
the Director of the Department of Consumer and Business Services has reason to
believe that a person has violated any provision of ORS 97.923 to 97.949, the
director may give the information relative to the violation to the appropriate
federal, state or local law enforcement officer having jurisdiction over the
violation.
(2) If the director, in the course of
taking an action against a certified provider, master trustee or person acting
as a certified provider or master trustee without certification or
registration, finds that a salesperson or person acting as a salesperson has
violated any provision of ORS 97.923 to 97.949, the director shall provide the State
Mortuary and Cemetery Board with a copy of the findings and the order of the
director. The board shall, upon receipt of such information, discipline the
salesperson or person acting as a salesperson as required by law. [2001 c.796 §5;
2003 c.362 §8; 2005 c.338 §3]
Note:
See note under 97.923.
97.950
[1995 c.717 §1; 1997 c.472 §4; 1999 c.201 §1; 2005 c.505 §1; repealed by 2007
c.681 §31]
REVISED
UNIFORM ANATOMICAL GIFT ACT
97.951
Short title. ORS 97.951 to 97.982 may be cited as
the Revised Uniform Anatomical Gift Act. [2007 c.681 §1]
Note:
97.951 to 97.982 were enacted into law by the Legislative Assembly but were not
added to or made a part of ORS chapter 97 or any series therein by legislative
action. See Preface to Oregon Revised Statutes for further explanation.
97.952
[1995 c.717 §2; 1997 c.472 §5; 2005 c.505 §2; repealed by 2007 c.681 §31]
97.953
Definitions. As used in ORS 97.951 to 97.982:
(1) “Adult” means an individual who is 18
years of age or older.
(2) “Agent” means an:
(a) Attorney-in-fact as that term is
defined in ORS 127.505; or
(b) Individual expressly authorized to
make an anatomical gift on the principal’s behalf by any record signed by the
principal.
(3) “Anatomical gift” means a donation of
all or part of a human body to take effect after the donor’s death for the
purpose of transplantation, therapy, research or education.
(4) “Body part” means an organ, an eye or
tissue of a human being. The term does not include the whole body.
(5) “Decedent” means a deceased individual
whose body or body part is or may be the source of an anatomical gift, and
includes a stillborn infant or a fetus.
(6)(a) “Disinterested witness” means a
witness other than:
(A) A spouse, child, parent, sibling,
grandchild, grandparent or guardian of the individual who makes, amends,
revokes or refuses to make an anatomical gift; or
(B) An adult who exhibited special care
and concern for the individual.
(b) “Disinterested witness” does not
include a person to whom an anatomical gift could pass under ORS 97.969.
(7) “Document of gift” means a donor card
or other record used to make an anatomical gift. The term includes a statement,
symbol or designation on a driver license, identification card or donor
registry.
(8) “Donor” means an individual whose body
or body part is the subject of an anatomical gift.
(9) “Donor registry” means a centralized
database that contains records of anatomical gifts and amendments to or
revocations of anatomical gifts.
(10) “Driver license” means a license or
permit issued under ORS 807.021, 807.040, 807.200, 807.280 or 807.730,
regardless of whether conditions are attached to the license or permit.
(11) “Eye bank” means an organization
licensed, accredited or regulated under federal or state law to engage in the recovery,
screening, testing, processing, storage or distribution of human eyes or
portions of human eyes.
(12) “Guardian” means a person appointed
by a court to make decisions regarding the support, care, education, health or
welfare of an individual. “Guardian” does not include a guardian ad litem.
(13) “Hospital” means a facility licensed
as a hospital under the law of any state or a facility operated as a hospital
by the United States, a state or a subdivision of a state.
(14) “Identification card” means the card
issued under ORS 807.021, 807.400 or 807.730, or a comparable provision of the
motor vehicle laws of another state.
(15) “Know” means to have actual
knowledge.
(16) “Minor” means an individual who is
under 18 years of age.
(17) “Organ procurement organization”
means an organization designated by the Secretary of the United States
Department of Health and Human Services as an organ procurement organization.
(18) “Parent” means a parent whose
parental rights have not been terminated.
(19) “Physician” means an individual
authorized to practice medicine or osteopathy under the law of any state.
(20) “Procurement organization” means an
eye bank, organ procurement organization or tissue bank.
(21) “Prospective donor” means an
individual who is dead or near death and has been determined by a procurement
organization to have a body part that could be medically suitable for
transplantation, therapy, research or education. The term does not include an
individual who has made a refusal.
(22) “Reasonably available” means able to
be contacted by a procurement organization without undue effort and willing and
able to act in a timely manner consistent with existing medical criteria
necessary for the making of an anatomical gift.
(23) “Recipient” means an individual into
whose body a decedent’s body part has been or is intended to be transplanted.
(24) “Record” means information that is
inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(25) “Refusal” means a record that
expressly states an intent to prohibit other persons from making an anatomical
gift of an individual’s body or body part.
(26) “Sign” means, with the present intent
to authenticate or adopt a record:
(a) To execute or adopt a tangible symbol;
or
(b) To attach to or logically associate
with the record an electronic symbol, sound or process.
(27) “State” means a state of the United
States, the District of Columbia, Puerto Rico, the United States Virgin Islands
or any territory or insular possession subject to the jurisdiction of the
United States.
(28) “Technician” means an individual
determined to be qualified to remove or process body parts by an appropriate
organization that is licensed, accredited or regulated under federal or state
law. The term includes an enucleator.
(29) “Tissue” means a portion of the human
body other than an organ or an eye. The term does not include blood unless the
blood is donated for the purpose of research or education.
(30) “Tissue bank” means a person that is
licensed, accredited or regulated under federal or state law to engage in the
recovery, screening, testing, processing, storage or distribution of tissue.
(31) “Transplant hospital” means a
hospital that furnishes organ transplants and other medical and surgical
specialty services required for the care of transplant patients. [2007 c.681 §2;
2008 c.1 §33]
Note:
See note under 97.951.
97.954
[1995 c.717 §3; 1997 c.472 §6; 1999 c.201 §2; 2005 c.505 §3; repealed by 2007
c.681 §31]
97.955
Purpose of anatomical gift; persons authorized to make gift.
(1) Subject to ORS 97.963, a donor may make an anatomical gift of a donor’s
body or body part during the life of the donor for the purpose of
transplantation, therapy, research or education.
(2) An anatomical gift may be made in the
manner provided in ORS 97.957 by:
(a) The donor, if the donor is an adult or
if the donor is a minor and is:
(A) Emancipated; or
(B) Authorized under ORS 807.280 to apply
for an instruction driver permit because the donor is at least 15 years of age;
(b) An agent of the donor, unless the
power of attorney for health care or other record prohibits the agent from
making an anatomical gift;
(c) A parent of the donor, if the donor is
an unemancipated minor; or
(d) The donor’s guardian. [2007 c.681 §3]
Note:
See note under 97.951.
97.956
[1995 c.717 §4; 1997 c.472 §7; 1999 c.201 §3; repealed by 2007 c.681 §31]
97.957
Methods of making anatomical gift before death of donor.
(1) A donor may make an anatomical gift:
(a) By a designation on the donor’s driver
license or identification card;
(b) In a will;
(c) During a terminal illness or injury of
the donor, by any form of communication addressed to at least two adults, at
least one of whom is a disinterested witness;
(d) By a donor card or other record signed
by the donor or other person making the gift; or
(e) By authorizing that a statement,
symbol or designation indicating that the donor has made an anatomical gift is
to be included on a donor registry.
(2) If the donor or other person
authorized to make an anatomical gift under ORS 97.955 is physically unable to
sign a record, the record may be signed by another individual at the direction
of the donor or other person and must:
(a) Be witnessed by at least two adults,
at least one of whom is a disinterested witness, who have signed at the request
of the donor or the other person; and
(b) State that it has been signed and
witnessed as provided in paragraph (a) of this subsection.
(3) Revocation, suspension, expiration or
cancellation of a driver license or identification card upon which an
anatomical gift is indicated does not invalidate the gift.
(4) An anatomical gift made by will takes
effect upon the donor’s death whether or not the will is probated. Invalidation
of the will after the donor’s death does not invalidate the gift.
(5) An anatomical gift made by a
designation on the donor’s driver license or identification card is
conclusively presumed valid. [2007 c.681 §4; 2009 c.106 §1]
Note:
See note under 97.951.
97.958
[1995 c.717 §5; 1997 c.472 §8; 1999 c.201 §4; 2005 c.505 §4; repealed by 2007
c.681 §31]
97.959
Revocation or amendment of anatomical gift by donor or agent or guardian of
donor. (1) Except as provided in subsection
(7) or (8) of this section, an anatomical gift made under ORS 97.957 may be
amended or revoked only by the donor in accordance with the provisions of this
section and may not be amended or revoked by any other person otherwise
authorized to make, amend or revoke a gift under ORS 97.963 or 97.967.
(2) A donor or other person authorized to
amend or revoke an anatomical gift under subsection (7) or (8) of this section
may amend or revoke an anatomical gift by:
(a) A record signed by:
(A) The donor;
(B) The other person; or
(C) Subject to subsection (3) of this
section, another individual acting at the direction of the donor or the other
person if the donor or other person is physically unable to sign; or
(b) A later-executed document of gift that
amends or revokes a previous anatomical gift or portion of an anatomical gift,
either expressly or by inconsistency.
(3) A record signed pursuant to subsection
(2)(a)(C) of this section must:
(a) Be witnessed by at least two adults,
at least one of whom is a disinterested witness, who have signed at the request
of the donor or the other person; and
(b) State that it has been signed and
witnessed as required in this subsection.
(4) A donor or other person authorized to
revoke an anatomical gift under subsection (7) or (8) of this section may
revoke an anatomical gift by the destruction or cancellation of the document of
gift, or the portion of the document of gift used to make the gift, with the
intent to revoke the gift.
(5) A donor may amend or revoke an
anatomical gift that was not made in a will by any form of communication during
a terminal illness or injury addressed to at least two adults, at least one of
whom is a disinterested witness.
(6) A donor who makes an anatomical gift
in a will may amend or revoke the gift in the manner provided for amendment or
revocation of wills or as provided in subsection (4) of this section.
(7) If a donor who is an unemancipated
minor dies, a parent of the donor who is reasonably available may revoke or
amend an anatomical gift of the donor’s body or body part.
(8) An agent or guardian of a donor may
amend or revoke an anatomical gift only if:
(a) The agent or guardian made the gift
under ORS 97.955 (2)(b) or (d); or
(b) The power of attorney for health care
or other record appointing the agent expressly authorizes the agent to amend or
revoke anatomical gifts. [2007 c.681 §5; 2009 c.106 §2; 2011 c.61 §1]
Note:
See note under 97.951.
97.960
[1995 c.717 §6; 1997 c.472 §9; repealed by 2007 c.681 §31]
97.961
Refusal to make anatomical gift; effect of refusal.
(1) An individual may refuse to make an anatomical gift of the individual’s
body or body part by:
(a) A record signed by:
(A) The individual; or
(B) Subject to subsection (2) of this
section, another individual acting at the direction of the individual if the
individual is physically unable to sign;
(b) The individual’s will, whether or not
the will is admitted to probate or invalidated after the individual’s death; or
(c) Any form of communication made by the
individual during the individual’s terminal illness or injury addressed to at
least two adults, at least one of whom is a disinterested witness.
(2) A record signed under subsection
(1)(a)(B) of this section must:
(a) Be witnessed by at least two adults, at
least one of whom is a disinterested witness, who have signed at the request of
the individual; and
(b) State that it has been signed and
witnessed as provided in this subsection.
(3) An individual who has made a refusal
may amend or revoke the refusal:
(a) In the manner provided in subsection
(1) of this section for making a refusal;
(b) By subsequently making an anatomical
gift pursuant to ORS 97.957 that is inconsistent with the refusal; or
(c) By destroying or canceling the record
evidencing the refusal, or the portion of the record used to make the refusal,
provided that the destruction or cancellation is done with the intent to revoke
the refusal.
(4) Except as otherwise provided in
subsection (5) of this section, in the absence of an express, contrary
indication by the individual set forth in the refusal, an individual’s
unrevoked refusal to make an anatomical gift of the individual’s body or body
part prohibits all other persons from making an anatomical gift of the
individual’s body or body part.
(5) If an unemancipated minor who signed a
refusal dies, a parent of the minor who is reasonably available may revoke the
minor’s refusal. [2007 c.681 §6; 2009 c.106 §3]
Note:
See note under 97.951.
97.962
[1995 c.717 §7; repealed by 2007 c.681 §31]
97.963
Effect of making, amending or revoking anatomical gift.
(1) An anatomical gift of a donor’s body or body part, if the donor or another
person made an anatomical gift of the donor’s body or body part under ORS
97.957 or an amendment to an anatomical gift of the donor’s body or body part
under ORS 97.959, may not be revoked except in accordance with ORS 97.959.
(2) A donor’s revocation of an anatomical
gift of the donor’s body or body part under ORS 97.959 is not a refusal and
does not prohibit another person specified in ORS 97.955 or 97.965 from making
an anatomical gift of the donor’s body or body part under ORS 97.957 or 97.967.
(3) If a person other than the donor makes
an unrevoked anatomical gift of the donor’s body or body part under ORS 97.957
or an amendment to an anatomical gift of the donor’s body or body part under
ORS 97.959, another person may not make, amend or revoke the gift of the donor’s
body or body part under ORS 97.967.
(4) A revocation of an anatomical gift of
a donor’s body or body part under ORS 97.959 by a person other than the donor
does not prohibit another person from making an anatomical gift of the body or
body part under ORS 97.957 or 97.967.
(5) In the absence of an express, contrary
indication by the donor or other person authorized to make an anatomical gift
under ORS 97.955, an anatomical gift of a body part is neither a refusal to
give another body part nor a limitation on the making of an anatomical gift of
another body part at a later time by the donor or other person.
(6) In the absence of an express, contrary
indication by the donor or other person authorized to make an anatomical gift
under ORS 97.955, an anatomical gift of a body part for one or more of the
purposes set forth in ORS 97.955 is not a limitation on the making of an
anatomical gift of the body part for any of the other purposes by the donor or
other person under ORS 97.957 or 97.967. [2007 c.681 §7; 2009 c.106 §4; 2011
c.61 §2]
Note:
See note under 97.951.
97.964
[1995 c.717 §8; 2005 c.505 §5; repealed by 2007 c.681 §31]
97.965
Persons authorized to make anatomical gift of body or body part of decedent.
(1) Subject to subsections (2) and (3) of this section and unless prohibited by
ORS 97.961 or 97.963, an anatomical gift of a decedent’s body or body part for
purpose of transplantation, therapy, research or education may be made by any
member of the following classes of persons who is reasonably available, in the
following order:
(a) An agent of the decedent at the time
of death who could have made an anatomical gift under ORS 97.955 (2)(b)
immediately before the decedent’s death;
(b) The spouse of the decedent;
(c) An adult child of the decedent;
(d) A parent of the decedent;
(e) An adult sibling of the decedent;
(f) An adult grandchild of the decedent;
(g) A grandparent of the decedent;
(h) An adult who exhibited special care
and concern for the decedent;
(i) A guardian of the decedent at the time
of death; or
(j) Any other person having the authority
to dispose of the decedent’s body.
(2) If there is more than one member of a
class listed in subsection (1) of this section entitled to make an anatomical
gift, an anatomical gift may be made by a member of the class unless that
member or a person to which the gift may pass under ORS 97.969 knows of an
objection by another member of the class. If an objection is known, the gift
may be made only by a majority of the members of the class who are reasonably
available.
(3) A person may not make an anatomical
gift if, at the time of the decedent’s death, a person in a prior class under
subsection (1) of this section is reasonably available to make or to object to
the making of an anatomical gift. [2007 c.681 §8]
Note:
See note under 97.951.
97.966
[Formerly 97.295; 2007 c.681 §30; renumbered 97.984 in 2007]
97.967
Methods for making, amending or revoking anatomical gift of body or body part
of decedent by authorized person. (1) A person
authorized to make an anatomical gift under ORS 97.965 may make an anatomical
gift by a document of gift signed by the person making the gift or by that
person’s oral communication that is electronically recorded or is
contemporaneously reduced to a record and signed by the individual receiving
the oral communication.
(2) Subject to subsection (3) of this
section, an anatomical gift by a person authorized under ORS 97.965 may be
amended or revoked orally or in a record by any member of a prior class who is
reasonably available. If more than one member of the prior class is reasonably
available, the gift made by a person authorized under ORS 97.965 may be:
(a) Amended only if a majority of the
reasonably available members agree to amendment of the gift; or
(b) Revoked only if a majority of the
reasonably available members agree to the revocation of the gift or if they are
equally divided as to whether to revoke the gift.
(3) A revocation under subsection (2) of
this section is effective only if, before an incision has been made to remove a
body part from the donor’s body or before invasive procedures have begun to
prepare the recipient, the procurement organization, transplant hospital,
physician or technician knows of the revocation. [2007 c.681 §9]
Note:
See note under 97.951.
97.968
[Formerly 97.300; renumbered 97.985 in 2007]
97.969
Authorized recipients of anatomical gifts; purposes for which gift may be used.
(1) An anatomical gift may be made to the following persons named in the
document of gift:
(a) A hospital, accredited medical school,
dental school, college, university, organ procurement organization or other
appropriate person, for research or education;
(b) Subject to subsection (2) of this
section, an individual designated by the person making the anatomical gift if
the individual is the recipient of the body part; or
(c) An eye bank or tissue bank.
(2) If an anatomical gift to an individual
under subsection (1)(b) of this section cannot be transplanted into the
individual, the body part passes in accordance with subsection (7) of this
section in the absence of an express, contrary indication by the person making
the anatomical gift.
(3) If an anatomical gift of one or more
specific body parts or of all body parts is made in a document of gift that
does not name a person described in subsection (1) of this section but
identifies the purpose for which an anatomical gift may be used, the following
rules apply:
(a) If the body part is an eye and the
gift is for the purpose of transplantation or therapy, the gift passes to the
appropriate eye bank.
(b) If the body part is tissue and the
gift is for the purpose of transplantation or therapy, the gift passes to the
appropriate tissue bank.
(c) If the body part is an organ and the
gift is for the purpose of transplantation or therapy, the gift passes to the
appropriate organ procurement organization as custodian of the organ.
(d) If the body part is an organ, an eye
or tissue and the gift is for the purpose of research or education, the gift
passes to the appropriate procurement organization.
(4) For the purposes of subsection (3) of this
section, if there is more than one purpose of an anatomical gift set forth in
the document of gift but the purposes are not set forth in any priority, the
gift must be used for transplantation or therapy, if suitable. If the gift
cannot be used for transplantation or therapy, the gift may be used for
research or education.
(5) If an anatomical gift of one or more
specific body parts is made in a document of gift that does not name a person
described in subsection (1) of this section and does not identify the purpose
of the gift, the gift may be used only for transplantation or therapy, and the
gift passes in accordance with subsection (7) of this section.
(6) If a document of gift specifies only a
general intent to make an anatomical gift by words such as “donor,” “organ
donor” or “body donor” or by a symbol or statement of similar import, the gift
may be used only for transplantation or therapy, and the gift passes in
accordance with subsection (7) of this section.
(7) For purposes of subsections (2), (5)
and (6) of this section, the following rules apply:
(a) If the body part is an eye, the gift
passes to the appropriate eye bank.
(b) If the body part is tissue, the gift
passes to the appropriate tissue bank.
(c) If the body part is an organ, the gift
passes to the appropriate organ procurement organization as custodian of the
organ.
(8) An anatomical gift of an organ for
transplantation or therapy, other than an anatomical gift under subsection
(1)(b) of this section, passes to the organ procurement organization as
custodian of the organ.
(9) If an anatomical gift does not pass
pursuant to subsections (1) to (8) of this section or the decedent’s body or
body part is not used for transplantation, therapy, research or education,
custody of the body or body part passes to the person under obligation to
dispose of the body or body part.
(10) A person may not accept an anatomical
gift if the person knows that the gift was not effectively made under ORS
97.957 or 97.967 or if the person knows that the decedent made a refusal under
ORS 97.961 that was not revoked. For purposes of this subsection, if a person
knows that an anatomical gift was made on a document of gift, the person is
deemed to know of any amendment or revocation of the gift or any refusal to
make an anatomical gift on the same document of gift.
(11) Except as otherwise provided in
subsection (1)(b) of this section, ORS 97.951 to 97.982 do not affect the
allocation of organs for transplantation or therapy. [2007 c.681 §10]
Note:
See note under 97.951.
97.970
Search for document of anatomical gift or refusal; duty to send document or
refusal to hospital. (1) The following persons shall
make a reasonable search of an individual who the persons reasonably believe is
dead or near death for a document of gift or other information identifying the
individual as a donor or as an individual who made a refusal:
(a) A law enforcement officer,
firefighter, emergency medical services provider or other emergency rescuer
finding the individual; and
(b) If no other source of the information
is immediately available, a hospital, as soon as practicable after the
individual’s arrival at the hospital.
(2) If a document of gift or a refusal to
make an anatomical gift is located by the search required by subsection (1)(a)
of this section and the individual or deceased individual to whom it relates is
taken to a hospital, the person responsible for conducting the search shall
send the document of gift or the refusal to the hospital.
(3) A person is not subject to criminal or
civil liability for failing to discharge the duties imposed by this section but
may be subject to administrative sanctions. [2007 c.681 §11; 2011 c.703 §22]
Note:
See note under 97.951.
97.971
Delivery of document of gift or refusal not required; right to examine.
(1) A document of gift need not be delivered during the donor’s lifetime to be
effective.
(2) Upon or after an individual’s death, a
person in possession of a document of gift or a refusal to make an anatomical
gift with respect to the individual shall allow examination and copying of the
document of gift or the refusal by a person authorized to make or object to the
making of an anatomical gift with respect to the individual or by a person to
whom the gift could pass under ORS 97.969. [2007 c.681 §12]
Note:
See note under 97.951.
97.972
Rights and duties of procurement organizations and others; authorized
examinations. (1) When a hospital refers an
individual at or near death to a procurement organization, the organization
shall make a reasonable search of the records of the Department of
Transportation and any donor registry that it knows exists for the geographical
area in which the individual resides to ascertain whether the individual has
made an anatomical gift.
(2) A procurement organization must be
allowed reasonable access to information in the records of the Department of
Transportation to ascertain whether an individual at or near death is a donor.
(3) When a hospital refers an individual
at or near death to a procurement organization, the organization may conduct
any reasonable examination necessary to ensure the medical suitability of a
body part that is or could be the subject of an anatomical gift for
transplantation, therapy, research or education from a donor or a prospective
donor. During the examination period, measures necessary to ensure the medical
suitability of the body part may not be withdrawn unless the hospital or
procurement organization knows that the individual expressed a contrary intent.
(4) Unless otherwise prohibited by law, at
any time after a donor’s death, the person to whom a body part passes under ORS
97.969 may conduct any reasonable examination necessary to ensure the medical
suitability of the body or body part for its intended purpose.
(5) Unless otherwise prohibited by law, an
examination under subsection (3) or (4) of this section may include an
examination of all medical and dental records of the donor or prospective
donor.
(6) Upon the death of a minor who was a
donor or had signed a refusal, unless a procurement organization knows the
minor is emancipated, the procurement organization shall conduct a reasonable
search for the parents of the minor and provide the parents with an opportunity
to revoke or amend the anatomical gift or revoke the refusal.
(7) Upon referral by a hospital under
subsection (1) of this section, a procurement organization shall make a
reasonable search for any person listed in ORS 97.965 having priority to make
an anatomical gift on behalf of a prospective donor. If a procurement
organization receives information that an anatomical gift to any other person
was made, amended or revoked, it shall promptly advise the other person of all
relevant information.
(8) Subject to ORS 97.969 (9) and 97.980,
the rights of the person to whom a body part passes under ORS 97.969 are
superior to the rights of all others with respect to the body part. The person
may accept or reject an anatomical gift in whole or in part. Subject to the
terms of the document of gift and ORS 97.951 to 97.982, a person who accepts an
anatomical gift of an entire body may allow embalming, burial or cremation and
use of remains in a funeral service. If the gift is of a body part, the person
to whom the body part passes under ORS 97.969, upon the death of the donor and
before embalming, burial or cremation, shall cause the body part to be removed
without unnecessary mutilation.
(9) Neither the physician who attends the
decedent at death nor the physician who determines the time of the decedent’s
death may participate in the procedures for removing or transplanting a body
part from the decedent.
(10) A physician or technician may remove
from the body of a donor a donated body part that the physician or technician
is qualified to remove. [2007 c.681 §13]
Note:
See note under 97.951.
97.973
Coordination of procurement and use of anatomical gifts.
Each hospital in this state shall enter into agreements or affiliations with
procurement organizations for coordination of procurement and use of anatomical
gifts. [2007 c.681 §14]
Note:
See note under 97.951.
97.974
Immunity of persons acting in accordance with ORS 97.951 to 97.982.
(1) A person who acts in accordance with ORS 97.951 to 97.982 or with the
applicable anatomical gift law of another state, or attempts in good faith to
do so, is not liable for the act in a civil action, criminal prosecution or
administrative proceeding.
(2) Neither the person making an
anatomical gift nor the donor’s estate is liable for any injury or damage that
results from the making or use of the gift.
(3) In determining whether an anatomical
gift has been made, amended or revoked under ORS 97.951 to 97.982, a person may
rely upon representations of an individual listed in ORS 97.965 (1)(b), (c),
(d), (e), (f), (g) or (h) relating to the individual’s relationship to the
donor or prospective donor unless the person knows that the representation is
untrue. [2007 c.681 §15]
Note:
See note under 97.951.
97.975
[Formerly 97.930; renumbered 97.987 in 2007]
97.976
Law governing validity of document of gift; presumption of validity.
(1) A document of gift is valid if executed in accordance with:
(a) ORS 97.951 to 97.982;
(b) The laws of the state or country where
it was executed; or
(c) The laws of the state or country where
the person making the anatomical gift was domiciled, had a place of residence
or was a national at the time the document of gift was executed.
(2) If a document of gift is valid under
this section, the law of this state governs the interpretation of the document
of gift.
(3) A person may presume that a document
of gift or amendment of an anatomical gift is valid unless that person knows
that it was not validly executed or was revoked. [2007 c.681 §16]
Note:
See note under 97.951.
97.977
Donor registry; duty of Department of Transportation to cooperate with donor
registry. (1)(a) The Oregon Health Authority may
allow an organ procurement organization to establish a donor registry.
(b) Only one donor registry may be
established within this state.
(c) The donor registry shall comply with
subsections (3) and (4) of this section.
(2) The Department of Transportation
shall:
(a) Cooperate with a person who
administers the donor registry established under subsection (1) of this section
for the purpose of transferring to the donor registry all relevant information
regarding a donor’s making, amending or revoking an anatomical gift.
(b) When requested by the organ
procurement organization that has established the donor registry in this state,
the department shall electronically transfer to the organ procurement
organization the name, address, birthdate and donor designation listed on the
driver license or identification card of a person designated as a donor. The
organ procurement organization shall treat the information transferred from the
department as confidential and may use the information only to expedite the
making of anatomical gifts authorized by the donor.
(3) The donor registry must:
(a) Allow a donor or other person
authorized under ORS 97.955 to include on the donor registry a statement or
symbol that the donor has made, amended or revoked an anatomical gift;
(b) Be accessible to a procurement
organization to allow the procurement organization to obtain relevant
information on the donor registry to determine, at or near death of the donor
or a prospective donor, whether the donor or prospective donor has made,
amended or revoked an anatomical gift; and
(c) Be accessible for purposes of this
subsection seven days a week on a 24-hour basis.
(4) Personally identifiable information on
the donor registry about a donor or prospective donor may not be used or
disclosed without the express consent of the donor, prospective donor or person
who made the anatomical gift for any purpose other than to determine, at or
near death of the donor or prospective donor, whether the donor or prospective
donor has made, amended or revoked an anatomical gift. [2007 c.681 §17; 2009
c.595 §64]
Note:
See note under 97.951.
97.978
Resolution of conflict between potential anatomical gift and advance directive.
(1) As used in this section:
(a) “Advance directive” has the meaning
given that term in ORS 127.505.
(b) “Declaration” means a record signed by
a prospective donor specifying the circumstances under which a life support
system may be withheld or withdrawn from the prospective donor.
(c) “Health care decision” means any
decision regarding the health care of a prospective donor.
(2) If a prospective donor has a
declaration or advance directive and the terms of the declaration or advance
directive and the express or implied terms of a potential anatomical gift are
in conflict regarding administration of measures necessary to ensure the
medical suitability of a body part for transplantation, therapy, research or
education, the prospective donor and the prospective donor’s attending
physician shall confer to resolve the conflict.
(3) If the prospective donor is incapable
of resolving the conflict, one of the following persons shall act for the
prospective donor to resolve the conflict:
(a) An agent acting under the prospective
donor’s declaration or advance directive; or
(b) If an agent is not named in the
declaration or advance directive or the agent is not reasonably available,
another person authorized by law, other than in ORS 97.951 to 97.982, to make
health care decisions for the prospective donor.
(4) The conflict must be resolved as
expeditiously as possible.
(5) Information relevant to the resolution
of the conflict may be obtained from the appropriate procurement organization
and any person authorized under ORS 97.965 to make an anatomical gift for the
prospective donor.
(6) During the resolution of the conflict,
measures necessary to ensure the medical suitability of the body part may not
be withheld or withdrawn from the prospective donor unless withholding or
withdrawing the measures is medically indicated by appropriate end of life
care. [2007 c.681 §18]
Note:
See note under 97.951.
97.979
Cooperation between medical examiner and procurement organization.
(1) A medical examiner shall cooperate with procurement organizations to
maximize the opportunity to recover anatomical gifts for the purpose of
transplantation, therapy, research or education.
(2) Subject to ORS 97.980, if a medical
examiner receives notice from a procurement organization that an anatomical
gift might be available or was made with respect to a decedent whose body is
under the jurisdiction of the medical examiner and a post-mortem examination is
going to be performed, the medical examiner or designee shall conduct a
post-mortem examination of the body or the body part in a manner and within a
period compatible with its preservation for the purposes of the gift.
(3) A body part may not be removed from
the body of a decedent under the jurisdiction of a medical examiner for
transplantation, therapy, research or education unless the body part is the
subject of an anatomical gift. The body of a decedent under the jurisdiction of
the medical examiner may not be delivered to a person for research or education
unless the body is the subject of an anatomical gift. This subsection does not
preclude a medical examiner from performing the medicolegal investigation upon
the body or body parts of a decedent under the jurisdiction of the medical
examiner. [2007 c.681 §19]
Note:
See note under 97.951.
97.980
Facilitation of anatomical gift from decedent whose body is under jurisdiction
of medical examiner. (1) Upon request of a
procurement organization, a medical examiner shall release to the procurement
organization the name, contact information and available medical and social
history of a decedent whose body is under the jurisdiction of the medical
examiner. If the decedent’s body or body part is medically suitable for
transplantation, therapy, research or education, the medical examiner shall
release post-mortem examination results to the procurement organization. The
procurement organization may make a subsequent disclosure of the post-mortem
examination results or other information received from the medical examiner
only if relevant to transplantation, therapy, research or education.
(2) The medical examiner may conduct a
medicolegal examination by reviewing all medical records, laboratory test
results, X-rays, other diagnostic results and other information that any person
possesses about a donor or prospective donor whose body is under the
jurisdiction of the medical examiner that the medical examiner determines may
be relevant to the investigation.
(3) A person who has any information
requested by a medical examiner pursuant to subsection (2) of this section
shall provide that information as expeditiously as possible to allow the
medical examiner to conduct the medicolegal investigation within a period
compatible with the preservation of body parts for the purpose of
transplantation, therapy, research or education.
(4) If an anatomical gift has been or
might be made of a body part of a decedent whose body is under the jurisdiction
of the medical examiner and a post-mortem examination is not required, or the
medical examiner determines that a post-mortem examination is required but that
the recovery of the body part that is the subject of an anatomical gift will
not interfere with the examination, the medical examiner and procurement
organization shall cooperate in the timely removal of the body part from the
decedent for the purpose of transplantation, therapy, research or education.
(5) If an anatomical gift of a body part
from the decedent under the jurisdiction of the medical examiner has been or
might be made, but the medical examiner initially believes that the recovery of
the body part could interfere with the post-mortem investigation into the
decedent’s cause or manner of death, the medical examiner shall consult with
the procurement organization, or physician or technician designated by the
procurement organization, about the proposed recovery. The procurement
organization shall provide the medical examiner with all of the information
that the procurement organization possesses that could relate to the decedent’s
cause or manner of death.
(6)(a) The medical examiner and the
procurement organization may enter into an agreement establishing protocols and
procedures governing their relationship when:
(A) An anatomical gift of a body part from
a decedent whose body is under the jurisdiction of the medical examiner has
been or might be made; and
(B) The medical examiner believes that the
recovery of the body part could interfere with the post-mortem investigation
into the decedent’s cause or manner of death or the documentation or
preservation of evidence.
(b) A decision regarding the recovery of
the body part from the decedent shall be made in accordance with the agreement.
(c) The medical examiner and the
procurement organization shall evaluate the effectiveness of the agreement at
regular intervals but not less frequently than every two years.
(7)(a) In the absence of an agreement
establishing protocols and procedures governing the relationship between the
medical examiner and the procurement organization when an anatomical gift of an
eye or tissue from a decedent whose body is under the jurisdiction of the
medical examiner has been or might be made, and following the consultation
under subsection (5) of this section, the medical examiner may delay the
recovery of the eye or tissue until after the collection of evidence or the
post-mortem examination, in order to preserve and collect evidence, to maintain
a proper chain of custody and to allow an accurate determination of the decedent’s
cause or manner of death.
(b) When a determination to delay the
recovery of an eye or tissue is made, every effort possible shall be made by
the medical examiner to complete the collection of evidence or the post-mortem
examination in a timely manner compatible with the preservation of the eye or
tissue for the purpose of transplantation, therapy, research or education.
(c) The collection of evidence or the
post-mortem examination shall occur during the normal business hours of the
medical examiner and, when possible and practicable, at times other than the
normal business hours of the medical examiner.
(d) If the collection of evidence or the
post-mortem examination occurs at times other than the normal business hours of
the medical examiner, the procurement organization shall reimburse the medical
examiner a mutually agreed-upon reasonable fee.
(8) If the medical examiner denies or
delays recovery under subsection (6) or (7) of this section, the medical
examiner shall:
(a) Explain in a record the specific
reasons for not allowing or for delaying recovery of the body part;
(b) Include the specific reasons in the
records of the medical examiner; and
(c) Provide a record with the specific
reasons to the procurement organization.
(9) If the medical examiner allows
recovery of a body part, the procurement organization shall cooperate with the
medical examiner in any documentation of injuries and the preservation and
collection of evidence prior to and during the recovery of the body part and, upon
request of the medical examiner, shall cause the physician or technician who
removes the body part to provide the medical examiner with a record describing
the condition of the body part, a photograph and any other information and
observations that would assist in the post-mortem examination. [2007 c.681 §20]
Note:
See note under 97.951.
97.981
Purchase or sale of body parts prohibited. (1)
Except as otherwise provided in subsection (3) of this section, a person
commits the crime of purchase or sale of a body part for transplantation or
therapy if the person, for valuable consideration, knowingly purchases or sells
a body part for transplantation or therapy if removal of the body part from an
individual is intended to occur after the individual’s death.
(2) Purchase or sale of a body part for
transplantation or therapy is a Class C felony.
(3) A person may charge a reasonable
amount for the removal, processing, preservation, quality control, storage,
transportation, implantation or disposal of a body part. [2007 c.681 §21]
Note:
See note under 97.951.
97.982
Alteration of document of anatomical gift prohibited.
(1) A person commits the crime of alteration of a document of gift if the
person, in order to obtain a financial gain, intentionally falsifies, forges,
conceals, defaces or obliterates a document of gift, an amendment or revocation
of a document of gift or a refusal.
(2) Alteration of a document of gift is a
Class C felony. [2007 c.681 §22]
Note:
See note under 97.951.
97.983
Relation to Electronic Signatures in Global and National Commerce Act.
The provisions of ORS 97.951 to 97.982 modify, limit and supersede the
Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et
seq., but do not modify, limit or supersede section 101(a) of the Electronic
Signatures in Global and National Commerce Act, 15 U.S.C. 7001, or authorize
electronic delivery of any of the notices described in section 103(b) of the
Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7003(b) as
in effect January 1, 2008. [2007 c.681 §23]
Note:
97.983 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
ANATOMICAL
GIFTS
97.984
Liability of executor who carries out anatomical gift.
A person named executor who carries out an anatomical gift of the testator made
under the provisions of ORS 97.957 before issuance of letters testamentary or
under a will which is not admitted to probate shall not be liable to the
surviving spouse or next of kin for performing acts necessary to carry out the
gift of the testator. [Formerly 97.966]
97.985
Transplants not covered by implied warranty. (1) The
procuring, processing, furnishing, distributing, administering or using of any
part of a human body for the purpose of injecting, transfusing or transplanting
that part into a human body is not a sales transaction covered by an implied
warranty under the Uniform Commercial Code or otherwise.
(2) As used in this section, “part” means
organs or parts of organs, tissues, eyes or parts of eyes, bones, arteries,
blood, other fluids and any other portions of a human body. [Formerly 97.968]
FEDERAL
AID FOR CEMETERIES
97.987
Department of Transportation use of federal moneys for cemetery care.
(1) In addition to any other duties of the Department of Transportation, the
department may apply for, accept and expend, use or dispose of moneys and
property received from the federal government for the purpose of establishing
any program of restoration, care, maintenance and preservation of cemeteries.
The department shall administer any funds received pursuant to this section in
accordance with the conditions established by the federal government.
(2) In carrying out the provisions of
subsection (1) of this section the Department of Transportation may contract or
consult with any nonprofit corporation established for the purpose of promoting
cemetery care and maintenance. [Formerly 97.975]
PENALTIES
97.990
Penalties. (1) Violation of ORS 97.160 is a Class
A misdemeanor.
(2) Every officer, agent or employee of
this state or of any county, city or any other municipal subdivision thereof
who willfully neglects to notify the Demonstrator of Anatomy of the existence
of a body as required by ORS 97.170 to 97.210 or who refuses to deliver
possession of such body according to the provisions of ORS 97.170 to 97.210 or
who mutilates or permits any such body to be mutilated so that it is not
valuable for anatomical purposes or who refuses or neglects to perform any of
the duties enjoined upon the officer, agent or employee by ORS 97.170 to
97.210, commits a Class A misdemeanor.
(3) Violation of ORS 97.520, 97.530 or
97.540 is a Class A misdemeanor.
(4) Any person, association or corporation
who operates a cemetery, mausoleum or columbarium contrary to the provisions of
ORS 97.020 to 97.040, 97.110 to 97.130, 97.145, 97.150, 97.220, 97.310 to
97.360 (1), 97.440, 97.510 to 97.560, 97.710, 97.720, 97.810, 97.820, 97.830
and 97.840 to 97.860 commits a Class B misdemeanor.
(5)(a) Violation of ORS 97.745 is a Class
C felony.
(b) In addition to any other sentence
provided by law for criminal violations of ORS 97.745, the judge shall impose a
penalty not to exceed $10,000 on any person convicted of a criminal violation
of ORS 97.745.
(6) In addition to the penalty of
subsection (5) of this section, any native Indian artifacts or human remains
taken by, or in possession of, any person sentenced under subsection (5) of
this section and all equipment used in the violation may be ordered forfeited
by the court in which conviction occurs, and may be disposed of as the court
directs. [Subsections (5) to (7) enacted as 1977 c.183 §12; subsection (8)
enacted as 1977 c.647 §4; 1979 c.420 §3; 1983 c.526 §6; 1985 c.198 §5;
subsections (5) to (7) renumbered 127.990 in 1991; subsection (5)(b) of 1995
Edition enacted as 1995 c.543 §3; 2011 c.597 §156]
97.992
Penalties for ORS 97.937. Violation of any of the
provisions of ORS 97.937 is a Class A misdemeanor. [Formerly 128.990; 2011
c.597 §157]
Note:
97.992 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
97.994
Penalties for ORS 97.931, 97.933 and 97.941.
Violation of any of the provisions of ORS 97.931, 97.933, 97.941 or 97.943 is
punishable as a Class A misdemeanor. [Formerly 128.991; 2003 c.362 §9]
Note:
97.994 was enacted into law by the Legislative Assembly but was not added to or
made a part of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.
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