MortSci 2012

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Vermont Funeral Law

Vermont

Title 26: Professions and Occupations

Chapter 17: EMBALMERS

§ 931 931-934. Repealed. 2009, No. 35, § 41(a). § 951 Repealed. 2009, No. 35, § 41(a). § 952 Repealed. 1999, No. 133 (Adj. Sess.), § 13.§ 953 Repealed. 2009, No. 35, § 41(a). § 954 Repealed. 1969, No. 239 (Adj. Sess.), § 16.§ 991 991-998. Repealed. 2009, No. 35, § 41(a).

Title 26: Professions and Occupations

Chapter 21: FUNERAL DIRECTORS

§ 1211. Definitions

(a) The following words as used in this chapter, unless a contrary meaning is required by the context, shall have the following meanings:

(1) "Crematory establishment" means a place of business conducted at a specific street address or location devoted to the disposition of dead human bodies by means of cremation.

(2) "Funeral director" means a licensed person who is the owner, co-owner, employee or manager of a licensed funeral establishment and who, for compensation, engages in the practice of funeral service.

(3) "Funeral establishment" means a place of business conducted at a specific street address or location devoted to the practice of funeral service.

(4) "Practice of funeral service" means arranging, directing, or providing for the care, preparation, or disposition of dead human bodies for a fee or other compensation. This includes, but is not limited to:

(A) meeting with the public to select a method of disposition or funeral observance and merchandise;

(B) entering into contracts, either at-need or pre-need, for the provision of dispositions, funeral observances, and merchandise;

(C) arranging, directing, or performing the removal or transportation of a dead human body;

(D) securing or filing certificates, permits, forms or other documents;

(E) supervising or arranging a funeral, memorial, viewing, or graveside observance;

(F) holding oneself out to be a licensed funeral director by using the words or terms "funeral director", "mortician", "undertaker", or any other words, terms, title, or picture that, when considered in context, would imply that such person is engaged in the practice of funeral service or is a licensed funeral director.

(5) "Removal" means the removal of dead human bodies from places of death, hospitals, institutions, or other locations, for a fee or other compensation.

(b) Nothing in this section shall prohibit cemetery owners, associations or their employees from engaging in any functions normally performed by them in the course of their everyday affairs as allowed by chapter 121 of Title 18.

(c) Notwithstanding this section, crematory owners and their personnel may engage in the listed activities in subsection (a) of this section only to the extent such functions are necessary to the performance of their duties. Specifically, crematory personnel may:

(1) provide for the disposition of dead human bodies by cremation, and meet with the public to arrange and provide for the disposition;

(2) enter into contracts, without taking prepaid funds, for the provision of dispositions by cremation;

(3) arrange, direct or perform the removal or transportation of a dead human body, so long as removals are performed by licensed removal personnel; and

(4) secure and file certificates, permits, forms or other documents. (Amended 1959, No. 224, § 3; 1995, No. 138 (Adj. Sess.), § 1a; 1999, No. 52, § 12; 2001, No. 151 (Adj. Sess.), § 10, eff. June 27, 2002.)

§ 1212. Board of funeral service; rules; duties

(a) The board of funeral service shall consist of five members appointed by the governor, three of whom shall be licensed funeral directors under this chapter with five years of experience as a funeral director, and two members shall represent the public. At least two of the funeral directors shall also be licensed embalmers. The public members shall not have a direct or indirect financial interest in the funeral business. Each member shall be sworn before performing his or her duties.

(b) The board shall:

(1) adopt rules establishing requirements for facilities used for embalming and preparation of dead human bodies, including the use of universal precautions. Rules adopted under this subdivision shall be submitted to the commissioner of health before the proposed rule is filed with the secretary of state under chapter 25 of Title 3;

(2) adopt rules governing professional standards, standards for disclosure of prices and a description of the goods and services that will be provided for those prices not inconsistent with Federal Trade Commission regulations regarding funeral industry practices and unfair or deceptive business practices;

(3) provide general information to applicants for licensure;

(4) explain appeal procedures to licensees and applicants and complaint procedures to the public;

(5) issue licenses to qualified applicants under this chapter;

(6) adopt rules regarding:

(A) minimum standards for crematory establishments, including standards for permits and documentation, body handling, containers, infectious diseases, pacemakers, body storage, sanitation, equipment, and maintenance, dealing with the public and other measures necessary to protect the public; and

(B) the transaction of its business as the board deems necessary;

(7) conduct at least one examination each year if there are candidates for examination;

(8) hold meetings as frequently as the efficient discharge of its duties requires. A majority of the members present shall constitute a quorum for the transaction of business. (Amended 1969, No. 239 (Adj. Sess.), § 9; 1973, No. 236 (Adj. Sess.), § 4; 1991, No. 219 (Adj. Sess.), § 3, eff. May 28, 1992; 1995, No. 138 (Adj. Sess.), § 1; 1997, No. 40, § 22; 2001, No. 151 (Adj. Sess.), § 11, eff. June 27, 2002; 2005, No. 27, § 38; 2009, No. 35, § 16.)

1212a. Repealed. 2005, No. 27, § 117(1).

§ 1213. Inspection of premises

(a) The board of funeral service or its designee may, at any reasonable time, inspect funeral and crematory establishments.

(b) Each funeral and crematory establishment shall be inspected at least once every two years. Copies of the inspector's report of inspections of establishments shall be provided to the board. (Amended 1969, No. 239 (Adj. Sess.), § 10; 1973, No. 236 (Adj. Sess.), § 4; 1995, No. 138 (Adj. Sess.), § 2; 2001, No. 151 (Adj. Sess.), § 12, eff. June 27, 2002; 2005, No. 27, § 39.)

1214. Repealed. 2001, No. 151 (Adj. Sess.), § 13.

§ 1215. Penalties; jurisdiction of offenses

(a) A person who engages in the practice of funeral services without a license shall be subject to the penalties provided in 3 V.S.A. § 127(c).

(b) No person shall embalm or introduce any fluid into a dead human body unless the person is a licensed embalmer or is an apprentice and performs under the direction of an embalmer in his or her presence. A person who is not duly licensed as provided in this chapter may not practice or hold himself or herself out to the public as a practicing embalmer and shall be subject to the penalties provided in 3 V.S.A. § 127(c). (Amended 1965, No. 194, § 10, operative Feb. 1, 1967; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1995, No. 138 (Adj. Sess.), § 7; 2007, No. 29, § 24; 2009, No. 35, § 17.)

§ 1216. Construction

(a) Nothing herein shall be construed as meaning that a licensed funeral establishment shall not have the right to prepare at the residence or place of death or some place approved by the local board of health a dead human body for burial.

(b) Nothing in this chapter shall be construed to prevent a funeral director licensed in another state from performing the duties of a funeral director in this state provided a licensed funeral director in this state is granted similar powers in such other state.

§ 1251. License requirements

No person, partnership, corporation, association, or other organization may open or maintain a funeral establishment unless the establishment is licensed by the board of funeral service to conduct the business and unless the owner, a co-owner or manager is a licensed funeral director. No person, partnership, corporation, association, or other organization may open or maintain a crematory establishment unless the establishment is licensed by the board of funeral service. No person may hold himself or herself out as performing the duties of a funeral director unless licensed by the board of funeral service. Except as otherwise permitted by law, no person employed by a funeral or crematory establishment may perform a removal unless registered with the board. (Amended 1959, No. 224, § 4; 1969, No. 239 (Adj. Sess.), § 11; 1973, No. 236 (Adj. Sess.), § 4; 2001, No. 151 (Adj. Sess.), § 14, eff. June 27, 2002; 2005, No. 27, § 40.)

§ 1252. Application; qualifications

(a)(1) Funeral director. Any person holding a high school certificate or its equivalent shall be entitled to take an examination as a funeral director provided that he or she has:

(A) graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than two academic years, or graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than one academic year or its equivalent as determined by the board, with 30 additional credit hours in subjects approved by the board and obtained in a college or university approved by the board; and

(B) completed a traineeship of 12 months of full-time employment or its equivalent under the direct supervision of a person duly licensed for the

practice of funeral service within a licensed funeral establishment not connected with a school. The duration of the traineeship and the work performed shall be verified by affidavit as required by the board; and

(C) submitted a written application and the required application fee.

(2) The board may waive the educational and traineeship requirements for examination as a funeral director, provided the applicant possesses a valid license from another state with licensure requirements substantially similar to those required by this chapter.

(b)(1) Embalmer. Any person holding a high school certificate or its equivalent shall be entitled to take an examination in embalming provided that he or she has:

(A) graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than two academic years, or graduated from a school of funeral service accredited or approved by the American Board of Funeral Service Education in a course of instruction of not less than one academic year or its equivalent as determined by the board, with 30 additional credit hours in subjects approved by the board and obtained in a college or university approved by the board;

(B) served a traineeship of 12 months of full-time employment or its equivalent under the direct supervision of a person duly licensed for the practice of funeral service, within a licensed funeral establishment not connected with a school. The duration of the traineeship and the work performed shall be verified by affidavit as required by the board; and

(C) submitted a written application and the required application fee.

(2) The board may waive the educational and traineeship requirements for examination as an embalmer, provided the applicant possesses a valid license from another state with licensure requirements substantially similar to those required by this chapter.

(c) Funeral establishment. A person, partnership, association, or other organization desiring to operate a funeral establishment, shall apply, in writing, to the board of funeral service for a license. The applicant, if a corporation, partnership, association or other organization, must have a manager or co-owner who is a licensed funeral director. The application for a license shall be sworn to by the individual, a partner or a duly authorized officer of a

corporation, and shall be on the form prescribed and furnished by the board of funeral service, and the applicant shall furnish such information as required by rule or regulation of the board. The application shall be accompanied by a licensing fee.

(d) Crematory establishment. A person, partnership, corporation, association, or other organization desiring to operate a crematory establishment shall apply, in writing, to the board of funeral service for a license. The applicant, if a partnership, corporation, association, or other organization, must have a designated manager or co-owner who is responsible for the operation of the establishment. The application for a license shall be sworn to by the individual, or a partner or a duly authorized officer of a corporation, shall be on the form prescribed and furnished by the board, and the applicant shall furnish information, as required by rule. The application shall be accompanied by a licensing fee. However, the applicant shall not be required to pay the fee under this subsection if the applicant pays the fee under subsection (b) of this section.

(e) Removal personnel. Any person who desires to engage in removals shall register with the board of funeral service and pay the fee established in subsection 1256(d) of this title. The applicant shall have attained the age of majority and be directly employed by a licensed funeral or crematory establishment. The board may prescribe, by rule, the forms for applicants, which may include proof of completion of up to three hours of education and training in infectious diseases in programs approved by the board. Registrants under this section are authorized to perform removals only, as defined by this chapter. Unregistered personnel may accompany registered personnel to assist in removals so long as they have been instructed in handling and precautionary procedures prior to the call. (Amended 1959, No. 224, § 5; 1969, No. 239 (Adj. Sess.), § 12; 1971, No. 184 (Adj. Sess.), § 18, eff. March 29, 1972; 1973, No. 236 (Adj. Sess.), § 4; 1989, No. 250 (Adj. Sess.), § 35; 2001, No. 151 (Adj. S

ess.), § 15, eff. June 27, 2002; 2005, No. 27, § 41; 2009, No. 35, § 18.)

§ 1253. Examinations

An applicant for a funeral director's or embalmer's license shall be examined by the board. The examinations shall be in writing and upon forms approved by the board containing questions on subjects as the board by rule may require to determine the qualifications of the applicant. (Amended 1959, No. 224, § 6; 1969, No. 239 (Adj. Sess.), § 13; 2009, No. 35, § 19.)

§ 1254. Issuance or denial of license

If, upon review, it is found that the applicant possesses sufficient skill and knowledge of the business and has met the application and qualification requirements set forth in this chapter, the board shall issue to him or her a license to engage in the business of funeral director, embalmer, funeral establishment, crematory establishment, or removal personnel. All applications shall be granted or denied within 90 days from the making thereof. (Amended 1959, No. 224, § 7; 1989, No. 250 (Adj. Sess.), § 36; 2001, No. 151 (Adj. Sess.), § 16, eff. June 27, 2002; 2005, No. 27, § 42; 2007, No. 76, § 5; 2009, No. 35, § 20.)

§ 1255. Record of licenses and applications

The board shall keep a record of licenses granted and applications made for license, which shall be open to public inspection at all reasonable times.

§ 1256. Renewal of registration or license

(a)(1) One month before renewal is required, the board or the office of professional regulation shall notify, by mail, every licensee of the date on which his or her or its license will expire.

(2) Biennially, every licensee shall renew his or her or its registration or license by paying the required fee.

(b) Upon request of the board of health or a person authorized to issue burial or removal permits, a licensee shall show proof of current licensure.

(c) If a licensee fails to pay the renewal fee by the required date, the license shall lapse. Thereafter, the license may be reinstated only upon application to the board or the office of professional regulation and upon payment of the renewal fee and a reinstatement fee.

(d) Applicants and persons regulated under this chapter shall pay the following fees:

(1) Application for license $ 70.00

(2) Biennial renewal of license

(A) Funeral director $ 260.00

(B) Embalmer $ 260.00

(C) Funeral establishment $ 475.00

(D) Crematory establishment $ 475.00

(E) Removal personnel $ 75.00

(e) In addition to the provisions of subsection (a) of this section, an applicant for renewal as a funeral director or embalmer shall have satisfactorily completed continuing education as required by the board. For purposes of this subsection, the board shall require, by rule, not less than six nor more than ten hours of approved continuing education as a condition of renewal and may require up to three hours of continuing education for removal personnel in the subject area of universal precautions and infectious diseases. (Amended 1959, No. 224, §§ 8, 9; 1969, No. 239 (Adj. Sess.), § 14; 1973, No. 236 (Adj. Sess.), § 4; 1989, No. 250 (Adj. Sess.) § 37; 1991, No. 167 (Adj. Sess.), § 29; No. 219 (Adj. Sess.), § 4, eff. May 28, 1992; 1995, No. 138 (Adj. Sess.), § 10; 1999, No. 49, § 176; 2001, No. 143 (Adj. Sess.), § 24, eff. June 21, 2002; No. 151 (Adj. Sess.), § 17, eff. June 27, 2002; 2005, No. 27, § 43; 2005, No. 148 (Adj. Sess.), § 12; 2007, No. 76, § 4; 2009, No. 35, § 21.)

§ 1257. Unprofessional conduct

(a) A licensee shall not engage in unprofessional conduct.

(b) Unprofessional conduct means the following conduct and conduct set forth in section 129a of Title 3:

(1) Using dishonest or misleading advertising.

(2) Failure to make available, upon request of a person who had received services, copies of documents in the possession or under the control of the practitioner.

(3) Failure to comply with rules adopted by the board, the office of professional regulation, or by the Federal Trade Commission relating to funeral goods and services.

(4) For funeral directors, failure to make available at the licensee's place of business, by color picture or display, the three least expensive caskets, as available. For the purposes of this section and related administrative rules, the three least expensive caskets shall include one cloth, one metal, and one wood casket.

(c) After hearing and upon a finding of unprofessional conduct, the board may take disciplinary action against a licensee.

(d) For purposes of this section, "disciplinary action" includes any action taken by the board against a licensee premised on a finding of unprofessional conduct. Disciplinary action includes all appropriate remedies, including denial of renewal of a license, suspension, revocation, limiting, or conditioning of the license, issuing reprimands or warnings, and adopting consent orders.

(e) Disciplinary proceedings against a licensed crematory establishment or its personnel, when that crematory is independent from a licensed funeral establishment, may, upon petition of the licensee, be heard by an administrative law officer appointed by the director of the office of professional regulation. (Amended 1969, No. 239 (Adj. Sess.), § 15; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 236 (Adj. Sess.), § 4; 1995, No. 138 (Adj. Sess.), § 3; 1997, No. 40, § 22c; 1997, No. 145 (Adj. Sess.), § 38; 1999, No. 133 (Adj. Sess.), § 14; 2001, No. 151 (Adj. Sess.), § 18, eff. June 27, 2002; 2005, No. 27, § 44.)

1258. Repealed. 1995, No. 138, § 11.

§ 1271. Prepaid arrangements

A funeral director, who sells services or merchandise which is not to be delivered or provided within 30 days of sale, has entered into a prepaid funeral arrangement and shall comply with the requirements of this subchapter. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993.)

§ 1272. Rules; prepaid funeral funds

The board, with the assistance of the office of professional regulation, shall adopt rules to carry out the provisions of this subchapter to insure the proper handling of all funds paid pursuant to a prepaid funeral agreement and to protect consumers in the event of default. The rules shall include provisions relating to the following:

(1) The timely establishment of escrow accounts and verification of the establishment of an account. An escrow account shall be maintained by a federally insured depository institution, but shall not be required to be maintained by a trust department, an insurance company licensed to do business in Vermont that is a member of the Vermont's Property and Casualty Insurance Guaranty Association established by subchapter 9 of chapter 101 of

Title 8, or a trust company chartered by the state of Vermont, if that insurance or trust company is a federally insured depository.

(2) The appointment of an escrow agent who may be a bank or other category of individual such as an attorney, a local elected official, next of kin, or the executor of a buyer's estate. All prepaid arrangement funds shall be paid directly to the escrow agent and not to the funeral director or establishment.

(3) Permissible investments to include demand and time deposits, certificates of deposit, bonds of the United States or its agencies, bonds of the state of Vermont, bonds of a Vermont municipality and bonds in which savings banks in this state may, by law, invest.

(4) The crediting of income earned by an escrow account, use of the taxpayer identification number and the deduction of reasonable administrative costs, taxes and bank fees. The beneficiary shall be considered to be the owner of irrevocable escrow accounts.

(5) Information to be provided the escrow agent by the funeral director and information regarding the escrow account or the prepaid funeral that shall be made available to the buyer on request and annually in a format as determined by the board.

(6) Records to be kept, manner of disclosure, and clauses to be included in contracts, including pre-need trust forms, and agreements. Records shall include a copy of the prepaid arrangement check which shall be kept in the prepaid account file maintained by the funeral director.

(7) Preparation of appropriate tax and other reports.

(8) Other factors determined by the board to be reasonably necessary to insure the security of the funds paid into an escrow account as part of a prepaid funeral arrangement.

(9) Establishment of a funeral services trust account. For purposes of funding the funeral services trust account, the board or the office of professional regulation shall assess each funeral or crematory establishment a per funeral, burial, or disposition fee of $6.00. The account shall be administered by the secretary of state and shall be used for the sole purpose of protecting prepaid funeral contract holders in the event a funeral establishment defaults on its obligations under the contract. The account shall consist of all fees collected under this subdivision and any assessments authorized by the general assembly.

The principal and interest remaining in the account at the close of any fiscal year shall not revert but shall remain in the account for use in succeeding fiscal years. Notwithstanding the foregoing, if the fund balance at the beginning of a fiscal year is at least $200,000.00, no fees shall be imposed during that fiscal year. Payments on consumer claims from

the fund shall be made on warrants by the commissioner of finance and management, at the direction of the board of funeral services. When an investigation reveals financial discrepancies within a licensed establishment, the director may order an audit to determine the existence of possible claims on the funeral services trust account. In cases where both a funeral and crematory establishment are involved in a disposition, the party receiving the burial permit shall be responsible for the disposition fee. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993; amended 1995, No. 138 (Adj. Sess.), § 8; 1997, No. 50, § 2, eff. June 26, 1997; 2001, No. 151 (Adj. Sess.), § 19, eff. June 27, 2002; 2005, No. 27, § 44a; 2009, No. 35, § 22.)

§ 1272a. Activities connected with funeral

A funeral establishment may offer food and drink in connection with a funeral, provided the establishment complies with applicable requirements of the department of health. (Added 1997, No. 40, § 22d.)

§ 1273. Written agreements

(a) Each prepaid funeral arrangement shall be expressed in a written contract. The board shall adopt rules for standard provisions to be included in all pre-need trust forms and may adopt a standard form which every funeral director accepting prepaid funeral arrangements shall use. Those provisions shall include:

(1) Disclosure of whether the contract is revocable or irrevocable.

(2) A declaration of the person who will most likely be responsible for the funeral and who is to be notified of the prepaid funeral.

(3) Any other provision determined by the board to be reasonably necessary to insure full disclosure to the buyer of all prepaid funeral arrangements as required under this chapter.

(b) The contract shall itemize the funeral services and merchandise to be provided. At the time of performance, if the itemized merchandise is no longer

reasonably available, the funeral director may substitute merchandise similar in style and at least equal in quality of material and workmanship. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993; amended 1995, No. 138 (Adj. Sess.), § 9; 2009, No. 35, § 23.)

§ 1274. Transfer of contracts and assets

(a) A buyer of prepaid funeral arrangements may transfer a revocable or irrevocable contract and assets to another funeral director under similar arrangements, in Vermont or outside. The funeral director who originated the contract may charge the buyer a transfer fee of no more than five percent of the principal amount of the assets.

(b) A funeral director shall transfer a contract and assets to another funeral director if any of the following events occur:

(1) The funeral director's business is sold.

(2) The funeral director becomes insolvent or bankrupt.

(3) The funeral director ceases to do business. Before transferring a contract and assets under this subsection, the funeral director shall notify the buyer of the director's intent to make such a transfer, and the buyer may choose the funeral director to whom the contract and assets will be transferred.

(c) If a buyer of a prepaid funeral arrangement defaults in making payments required under the terms of the contract, or if the buyer or the person responsible for making funeral arrangements for the deceased beneficiary fails to have the funeral director provide services, the funeral director may retain up to five percent of the amount in the escrow account at the time of default. The escrow agent shall pay the amount retained to the funeral director and the balance to the buyer when the funeral director gives written notice of default.

(d) The assets held in an escrow account, including any earnings on the assets, shall not be available to the funeral director and shall be exempt from levy or execution for the debts of the funeral director, except as otherwise provided in this subchapter. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993.)

§ 1275. Duties of escrow agents

(a) An escrow agent appointed in accordance with the provisions of this subchapter shall maintain funds in an escrow account intact, unless

commingled in a single account with other such funds, or until the services contracted for are performed, and the merchandise delivered, the buyer defaults or the contract and assets are transferred under section 1274 of this title. When the funeral director submits a death certificate and acknowledgment that the contract has been performed, the escrow agent shall pay to the funeral director the amount deposited and all income earned thereon and retained in the account. The certificate and affidavit shall be sufficient to authorize the escrow agent, acting alone, to make such payment without liability to any other person.

(b) If, for any reason, the funeral director fails promptly to meet his or her obligation under the contract upon the death of the beneficiary, the next of kin or personal representative of the deceased person, having provided for such services, may receive from the escrow agent the amount of money in the escrow account. An affidavit which states that services have been performed or property delivered, signed by the next of kin or personal representative and the funeral director who has provided such services, shall be sufficient to authorize the escrow agent, acting alone, to make such payment without liability to any other person. Nothing contained in this section shall excuse nonperformance by a funeral director. (Added 1991, No. 219 (Adj. Sess.), § 5, eff. Jan. 1, 1993.)

§ 1276. Embalming fluids and compounds; sale or use; prohibition

The sale or use for embalming purposes of any fluid containing arsenic, zinc, mercury, copper, lead, silver, antimony, chloral, or cyanogen, or of any compound containing any of these, or any poisonous alkaloid, shall be prohibited, and all brands of embalming compounds used within the state shall be tested and approved under direction of the state board of health. (Added 2009, No. 35, § 24.)

§ 1277. Suspicious cases

A person shall not embalm or introduce any fluid into a body of a person who has died under suspicious circumstances or when a criminal cause of death is suspected until after a legal investigation has determined the facts. An embalmer shall forthwith report any such case to the office of the chief medical examiner and obtain permission to embalm the body. (Added 2009, No. 35, § 25.)

Title 18: Health

Chapter 107: DEATHS, BURIALS, AUTOPSIES

§ 5201. Permits; removal of bodies; cremation; waiting period; investigation into circumstances of death

(a) Burial transfer permit. A dead body shall not be buried, entombed, or removed, or otherwise disposed of without a burial-transit permit issued and signed by a municipal clerk, a county clerk, or a deputy clerk for the municipality or unorganized town or gore in which the dead body is located; a funeral director licensed in Vermont; an owner or designated manager of a crematorium licensed in Vermont who is registered to perform removals; or a law enforcement officer.

(1) The clerk of the municipality shall provide for issuing burial-transit permits when the clerks' offices are closed. The municipal clerk shall appoint one or more deputies for this purpose and record the name of the deputy or deputies appointed in the municipal records and notify the commissioner of health of the names and residences of the deputy or deputies appointed.

(2) The county clerk of a county in which an unorganized town or gore is located shall perform the same duties and be subject to the same penalties as a municipal clerk in respect to issuing burial-transit permits and registering deaths that occur in an unorganized town or gore within the county.

(3) A funeral director licensed in Vermont or an owner or designated manager of a crematory licensed in Vermont who is registered to perform removals may issue a burial-transit permit for any municipality or unorganized town or gore at any time, including during the normal business hours of a municipal clerk.

(4) After a burial-transit permit is issued, the person who issued the permit shall forward the death certificate or preliminary report and the record of the burial-transit permit to the clerk of the municipality, or the clerk of the county, in the case of an unorganized town or gore, where death occurred on the first official working day thereafter.

(5) In cases of death by certain communicable diseases as defined by the commissioner, the municipal or county clerk, a deputy registrar, a funeral director, a crematory owner or manager, or a law enforcement officer shall not issue a burial-transit permit except in accordance with instructions issued by the commissioner.

(6) A body for which a burial-transit permit has been secured, except one for the body of any person whose death occurred as a result of a communicable disease, as defined by the commissioner, may be taken through or into another municipality or unorganized town or gore for funeral services without additional permits from the local health officer or the commissioner.

(b) No operator of a crematory facility shall cremate or allow the cremation of a dead body until the passage of at least 24 hours following the death of the decedent, as indicated on the death certificate, unless, if the decedent died from a virulent, communicable disease, a department of health rule or order requires the cremation to occur prior to the end of that period. If the attorney general or a state's attorney requests the delay of a cremation based upon a reasonable belief that the cause of death might have been due to other than accidental or natural causes, the cremation of a dead human body shall be delayed, based upon such request, a sufficient time to permit a civil or criminal investigation into the circumstances that caused or contributed to the death.

(c) The person in charge of the body shall not release for cremation the body of a person who died in Vermont until the person in charge has received a certificate from the chief, regional, or assistant medical examiner that the medical examiner has made personal inquiry into the cause and manner of death and is satisfied that no further examination or judicial inquiry concerning it is necessary. Upon request of a funeral director, the person in charge of the body, or the crematory operator, the chief medical examiner shall issue a cremation certificate after the medical examiner has completed an autopsy. The certificate shall be retained by the crematory for a period of three years. The person requesting cremation shall pay the department a fee of $25.00.

(d)(1) For all cremations requested for the body of a person who died outside Vermont, the crematory operator shall do the following before conducting the cremation:

(A) obtain a permit for transit or cremation;

(B) comply with the laws of the state in which the person died, including obtaining a copy of a medical examiner's permit if one is required.

(2) No additional approval from the Vermont medical examiner's office is required if compliance with the laws of the state in which the person died is achieved. (Amended 1959, No. 329, § 27, eff. March 1, 1961; 1963, No. 102, § 1, eff. May 22, 1963; 1969, No. 265, § 9; 1979, No. 142 (Adj. Sess.), § 16;

1997, No. 40, § 22a; 1999, No. 45, § 3; 2007, No. 56, § 5; No. 76, § 15; 2009, No. 151 (Adj. Sess.), § 5, eff. June 1, 2010.)

[Section 5202 effective until January 1, 2012; see also section 5202 set out below.]

§ 5202. Death certificate; duties of physician

(a) The physician who is last in attendance upon a deceased person during his last illness shall immediately fill out a certificate of death on a form prescribed by the commissioner. If he is unable to state the cause of death, he shall immediately notify the physician, if any, in charge of the patient's care, who shall fill out the certificate. If neither physician is able to state the cause of death, the provisions of section 5205 of this title shall apply. The physician may with the consent of the funeral director, delegate to said funeral director the responsibility of gathering data for and filling out all items except the medical certification of cause of death. All entries, except signatures, on the certificate shall be typed or printed. Such forms contain the following questions:

(1) Was the deceased a veteran of any war?

(2) If so, of what war?

(b) When death occurs to an admitted patient in a hospital and it is impossible to obtain a death certificate from an attending physician before burial or transportation, any physician who has access to the facts and can certify that death is not subject to the provisions of section 5205, may complete and sign a preliminary report of death on a form supplied by the commissioner of health. The town clerk or his deputy shall accept this report and issue a burial-transit permit. This preliminary report of death may be destroyed six months after a death certificate has been filed. This does not relieve the attending physician from the responsibility of completing a death certificate and delivering it to the funeral director within twenty-four hours after death.

(c) If a dead body must be removed immediately and a death certificate or preliminary report cannot be obtained, the town clerk, deputy or law enforcement officer may issue a temporary burial-transit permit which shall expire forty-eight hours after issuance. This does not relieve the attending physician from the responsibility of completing a death certificate and delivering it to the funeral director within twenty-four hours after death. Upon receipt of the death certificate, the funeral director shall apply for and the

issuing authority shall issue a burial-transit permit to replace the temporary permit. (Amended 1959, No. 329 (Adj. Sess.), § 27, eff. March 1, 1961; 1963, No. 102, § 2, eff. May 22, 1963; 1969, No. 265 (Adj. Sess.), § 10; 1979, No. 142 (Adj. Sess.), § 26; 1997, No. 40, § 22b.)

[Section 5202 effective January 1, 2012; see also section 5202 effective until January 1, 2012 set out above.]

§ 5202. Death certificate; duties of physician and authorized licensed health care professional

(a) The licensed health care professional who is last in attendance upon a deceased person shall immediately fill out a certificate of death on a form prescribed by the commissioner. For the purposes of this section, a licensed health care professional means a physician, a physician assistant, or an advance practice registered nurse. If the licensed health care professional who attended the death is unable to state the cause of death, he or she shall immediately notify the physician, if any, who was in charge of the patient's care to fill out the certificate. If the physician is unable to state the cause of death, the provisions of section 5205 of this title apply. The licensed health care professional may, with the consent of the funeral director, delegate to the funeral director the responsibility of gathering data for and filling out all items except the medical certification of cause of death. All entries, except signatures, on the certificate shall be typed or printed and shall

contain answers to the following questions:

(1) Was the deceased a veteran of any war?

(2) If so, of what war?

(b) When death occurs in a hospital and it is impossible to obtain a death certificate from an attending licensed health care professional before burial or transportation, any licensed health care professional who has access to the facts and can certify that death is not subject to the provisions of section 5205 of this title may complete and sign a preliminary report of death on a form supplied by the commissioner. The municipal or county clerk or a deputy shall accept this report and issue a burial-transit permit. This preliminary report of death may be destroyed six months after a death certificate has been filed. This does not relieve the attending licensed health care professional from the responsibility of completing a death certificate and delivering it to the funeral director within twenty-four hours after death. (Amended 1959, No. 329 (Adj. Sess.), § 27, eff.

March 1, 1961; 1963, No. 102, § 2, eff. May 22, 1963; 1969, No. 265 (Adj. Sess.), § 10; 1979, No. 142 (Adj. Sess.),

§ 26; 1997, No. 40, § 22b.; 2009, No. 151 (Adj. Sess.), § 6, eff. Jan. 1, 2012.)

[Section 5202a effective until February 1, 2011; see also section 5202a set out below.]

§ 5202a. Correction of death certificate

(a) Within six months after the date of death, the town clerk may correct or complete a death certificate upon application by the certifying physician, medical examiner, hospital, nursing home or funeral director. The town clerk may correct or complete the certificate accordingly and shall certify thereon that such correction or completion was made pursuant to this section, with the date thereof. In his or her discretion, the town clerk may refuse an application for correction or completion, in which case, the applicant may petition the probate court for such correction or completion.

(b)(1) After six months from the date of death a death certificate may only be corrected or amended pursuant to decree of the probate court in which district the original certificate is filed.

(2) The probate court to which such application is made shall set a time for hearing thereon and, if such court deems necessary, cause notice of the time and place thereof to be given by posting the same in the probate court office and, after hearing, shall make such findings, with respect to the correction of such death certificate as are supported by the evidence. The court shall thereupon issue a decree setting forth the facts as found, and transmit a certified copy of such decree to the supervisor of vital records registration. The supervisor of vital records registration shall transmit the same to the appropriate town clerk to amend the original or issue a new certificate. The words "Court Amended" shall be typed, written or stamped at the top of the new or amended certificates, with the date of the decree and the name of the issuing court.

(c) Provided, however, that only the medical examiner or the certifying physician may apply to correct or complete the certificate as to the medical certification of the cause of death. (Added 1979, No. 142 (Adj. Sess.), § 25.)

[Section 5202a effective February 1, 2011; see also section 5202a effective until February 1, 2011 set out above.]

§ 5202a. Correction of death certificate

(a) Within six months after the date of death, the town clerk may correct or complete a death certificate upon application by the certifying physician, medical examiner, hospital, nursing home or funeral director. The town clerk may correct or complete the certificate accordingly and shall certify thereon that such correction or completion was made pursuant to this section, with the date thereof. In his or her discretion, the town clerk may refuse an application for correction or completion, in which case, the applicant may petition the probate division of the superior court for such correction or completion.

(b)(1) After six months from the date of death a death certificate may only be corrected or amended pursuant to decree of the probate division of the superior court in which district the original certificate is filed.

(2) The probate division of the superior court to which such application is made shall set a time for hearing thereon and, if such court deems necessary, cause notice of the time and place thereof to be given by posting the same in the probate division of the superior court office and, after hearing, shall make such findings, with respect to the correction of such death certificate as are supported by the evidence. The court shall thereupon issue a decree setting forth the facts as found, and transmit a certified copy of such decree to the supervisor of vital records registration. The supervisor of vital records registration shall transmit the same to the appropriate town clerk to amend the original or issue a new certificate. The words "Court Amended" shall be typed, written or stamped at the top of the new or amended certificates, with the date of the decree and the name of the issuing court.

(c) Provided, however, that only the medical examiner or the certifying physician may apply to correct or complete the certificate as to the medical certification of the cause of death. (Added 1979, No. 142 (Adj. Sess.), § 25; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5203. Death certificate; member of armed forces

Upon official notification of a death of a member of the armed forces of the United States while serving as such beyond the United States, not including the territories thereof, and provided the remains of the member are not returned to this country, the next of kin thereof or interested person may file with the clerk of the town of the residence of such member a certificate of death. Such certificate shall set forth the name, date of birth, and date of death, if the same

can be determined, the names of the parents of the deceased and such other information as may be deemed pertinent by the office of the adjutant general.

§ 5204. Forms; certification

The certificate shall be made on forms furnished by the commissioner and shall be recorded by the town clerk in accordance with the provisions of this chapter. The town clerk shall forthwith, upon making such record, forward a certified copy thereof to the office of the adjutant general. (Amended 1959, No. 329 (Adj. Sess.), § 27, eff. March 1, 1961; 1969, No. 265 (Adj. Sess.), § 11; 1971, No. 84, § 9.)

§ 5205. Death certificate when no attending physician; autopsy

(a) When a person dies from violence, or suddenly when in apparent good health or when unattended by a physician or a recognized practitioner of a well-established church, or by casualty, or by suicide or as a result of injury or when in jail or prison, or any mental institution, or in any unusual, unnatural or suspicious manner, or in circumstances involving a hazard to public health, welfare or safety, the head of the household, the jailer or the superintendent of a mental institution where such death occurred, or the next of kin, or the person discovering the body or any doctor notified of the death, shall immediately notify the medical examiner who resides nearest the town where the death occurred and immediately upon being notified, such medical examiner shall notify the state's attorney of the county in which the death occurred. The state's attorney shall thereafter be in charge of the body and shall issue such instructions covering the care or removal of the body as he shall

deem appropriate until he releases same.

(b) The medical examiner and a designated law enforcement officer shall thereupon together immediately make a proper preliminary investigation.

(c) Unless the cause and manner of death is uncertain, such medical examiner shall complete and sign a certificate of death. He and the designated law enforcement officer shall each submit a report of investigation to the state's attorney and the chief medical examiner. If, however, the cause or circumstances of death are uncertain he shall immediately so advise the state's attorney of the county where the death occurred, and notify the chief medical examiner.

(d) The state's attorney of each county, with the advice of the commissioner of public safety or his designee, the sheriff and the chief of police of any established police department, shall prepare a list of law enforcement officers in his county qualified to make an investigation and report. This list shall be made available to the medical officers concerned and such other persons as the state's attorney deems proper.

(e) If an undertaker or embalmer shall, in the course of his employment, find evidence of physical violence on the body or evidence of an unlawful act sufficient to indicate to such a person that death might have been the result of an unlawful act, he shall immediately notify the state's attorney of the county where the body is then located and shall proceed no further with the preparation and embalming process of such body until permitted to do so by the state's attorney.

(f) The state's attorney or chief medical examiner, if either deem it necessary and in the interest of public health, welfare and safety, or in furtherance of the administration of the law, may order an autopsy to be performed by the chief medical examiner or under his direction. Upon completion of the autopsy the chief medical examiner shall submit a report to such state's attorney and the attorney general and shall complete and sign a certificate of death.

(g) When a person who is committed to the custody of the department of corrections or who is under the supervision of the department of corrections dies, the commissioner of corrections may request to be provided with a copy of any and all reports generated pursuant to subsection (f) of this section. No such request shall be granted where the medical examiner is unable to determine a manner of death or the manner of death is classified as a homicide. In other circumstances, the request shall be granted in the discretion of the medical examiner for good cause shown. Reports disclosed pursuant to this subsection shall remain confidential as required by law and shall not be considered to be a public record pursuant to 1 V.S.A. § 317. (Amended 1967, No. 254 (Adj. Sess.), §§ 1-3, eff. Feb. 20, 1968; 1969, No. 128, § 2; 1969, No. 265 (Adj. Sess.), § 12; 1971, No. 33, § 7; 1991, No. 191 (Adj. Sess.), § 1, eff. May 19, 1992; 2003, No. 128 (Adj. Sess.), § 2, eff. May 24, 2004; No. 157 (Adj.

Sess.), § 13.)

§ 5206. Penalty for failure to furnish death certificate

A physician who fails to furnish a certificate of death within twenty-four hours after the death of a person containing a true statement of the cause of such death, and all the other facts provided for in the form of death certificates, so far as these facts are obtainable, shall be fined not more than $100.00. (Amended 1963, No. 102, § 3, eff. May 22, 1963; 1969, No. 265 (Adj. Sess.), § 13.)

§ 5207. Certificate furnished family; burial permit

The physician or person filling out the certificate of death, within thirty-six hours after death, shall deliver the same to the family of the deceased, if any, or the undertaker or person who has charge of the body. Such certificate shall be filed with the person issuing the certificate of permission for burial, entombment or removal obtained by the person who has charge of the body before such dead body shall be buried, entombed or removed from the town. When such certificate of death is so filed, such officer or person shall immediately issue a certificate of permission for burial, entombment or removal of the dead body under legal restrictions and safeguards.

§ 5208. Health department; report on statistics

Beginning October 1, 2011 and every two years thereafter, the Vermont department of health shall report to the house committee on human services and the senate committee on health and welfare regarding the number of persons who died during the preceding two calendar years in hospital emergency rooms, other hospital settings, in their own homes, in a nursing home, in a hospice facility, and in any other setting for which information is available, as well as whether each decedent received hospice care within the last 30 days of his or her life. Beginning with the 2013 report, the department shall include information on the number of persons who died in hospital intensive care units, assisted living facilities, or residential care homes during the preceding two calendar years. (Added 2009, No. 25, § 16.)

§ 5209. Death out of state; burial permit

Whenever a dead body is brought into this state for burial or entombment accompanied by a removal permit issued under the laws of the state from which such body is brought, such permit shall be received as sufficient authority for burial; but if not accompanied by such permit, the person in charge thereof shall apply to the clerk of the town in which such body is to be buried for a burial permit, and the clerk shall issue such permit when furnished with such

information as is required by law of this state as to the identity and cause of death of a person dying in this state.

§ 5210. Form of burial or removal permit

If it is desired to bury, entomb or otherwise dispose of a dead body within the limits of a town where the death occurred, the certificate of permission shall state plainly the time, place and manner of such burial, entombment or disposition. If it is desired to remove a dead body from the town where the death occurred, the certificate of permission shall contain the essential facts contained in the certificate of death on which it is issued, shall accompany the body to its destination, and may be accepted as a permit for burial or entombment by a sexton or other person having the care of a cemetery, burial ground, tomb or receiving vault.

§ 5211. Unauthorized burial or removal; penalty

A person who buries, entombs, transports or removes the dead body of a person without a burial-transit or removal permit so to do, or in any other manner or at any other time or place than as specified in such permit, shall be imprisoned not more than five years or fined not more than $1,000.00, or both. (Amended 1969, No. 265 (Adj. Sess.), § 14.)

§ 5212. Permit to remove dead bodies

(a) A person desirous of disinterring or removing the body of a human being from one cemetery to another cemetery or to another part of the same cemetery or from a tomb or receiving vault elsewhere shall apply to the clerk of the municipality in which the dead body is interred or entombed for a removal permit.

Subsection (b) effective until February 1, 2011; see also subsection (b) set out below.

(b) An applicant for a removal permit shall publish notice of his or her intent to remove the remains. This notice shall be published for two successive weeks in a newspaper of general circulation in the municipality in which the body is interred or entombed. The notice shall include a statement that the spouse, child, parent, sibling, or descendant of the deceased, or that the cemetery commissioner or other municipal authority responsible for cemeteries in the municipality may object to the proposed removal by filing a complaint in the

probate court of the district in which the body is located as provided in section 5212a of this title.

Subsection (b) effective February 1, 2011; see also subsection (b) set out above.

(b) An applicant for a removal permit shall publish notice of his or her intent to remove the remains. This notice shall be published for two successive weeks in a newspaper of general circulation in the municipality in which the body is interred or entombed. The notice shall include a statement that the spouse, child, parent, sibling, or descendant of the deceased, or that the cemetery commissioner or other municipal authority responsible for cemeteries in the municipality may object to the proposed removal by filing a complaint in the probate division of the superior court of the district in which the body is located as provided in section 5212a of this title.

(c) The municipal clerk shall issue a removal permit 45 days after the date on which notice was last published pursuant to subsection (b) of this section or, if an objection is made pursuant to section 5212a, upon order of the court.

(d) Notwithstanding the provisions of subsections (b) and (c) of this section, a removal permit shall be issued upon application:

(1) when removal is necessary because of temporary entombment; or

(2) to a federal, state, county, or municipal official acting pursuant to official duties; or

(3) if the applicant has written permission to remove the remains from all persons entitled to object under section 5212a of this title.

(e) This section does not apply to:

(1) Unmarked burial sites that are subject to the provisions of subchapter 1 of this chapter.

(2) The removal of "historic remains," which has the same meaning as in subdivision 5217(a)(1) of this title. (Amended 1985, No. 206 (Adj. Sess.), § 1, eff. June 2, 1986; 2009, No. 151 (Adj. Sess.), § 3; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5212a. Removal; objections

Subsection (a) effective until February 1, 2011; see also subsection (a) set out below.

(a) Unless removal is otherwise authorized by law, a spouse, child, parent or sibling of the deceased may, within 30 days after the date notice was last published under section 5212 of this title, object to the proposed removal by filing a complaint in the probate court of the district in which the body is interred or entombed. A copy of the complaint shall be filed with the clerk of the town where the body is interred or entombed.

Subsection (a) effective February 1, 2011; see also subsection (a) set out above.

(a) Unless removal is otherwise authorized by law, a spouse, child, parent or sibling of the deceased may, within 30 days after the date notice was last published under section 5212 of this title, object to the proposed removal by filing a complaint in the probate division of the superior court of the district in which the body is interred or entombed. A copy of the complaint shall be filed with the clerk of the town where the body is interred or entombed.

Subsection (b) introductory paragraph effective until February 1, 2011; see also subsection (b) introductory paragraph set out below.

(b) The probate court shall, after hearing, issue its order authorizing removal of the body unless:

Subsection (b) introductory paragraph effective February 1, 2011; see also subsection (b) introductory paragraph set out above.

(b) The probate division of the superior court shall, after hearing, issue its order authorizing removal of the body unless:

(1) removal would be contrary to the expressed intent of the deceased; or

(2) removal is objected to by the surviving spouse of the deceased; or

(3) removal is objected to by an adult son or daughter of the deceased and there is no surviving spouse of the deceased;

(4) removal is objected to by a parent of the deceased and there is no surviving spouse or son or daughter of the deceased; or

(5) removal is objected to by an adult sibling of the deceased and there is no surviving spouse, son or daughter, or parent of the deceased. (Added 1985, No. 206 (Adj. Sess.), § 2, eff. June 2, 1986; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5212b. Unmarked burial sites special fund; reporting of unmarked burial sites

(a) The unmarked burial sites special fund is established in the state treasury for the purpose of protecting, preserving, moving or reinterring human remains discovered in unmarked burial sites.

(b) The fund shall be comprised of any monies appropriated to the fund by the general assembly or received from any other source, private or public. Interest earned on the fund, and any balance remaining in the fund at the end of a fiscal year, shall be retained in the fund. This fund shall be maintained by the state treasurer, and shall be managed in accordance with subchapter 5 of chapter 7 of Title 32.

(c) The commissioner of economic, housing and community development may authorize disbursements from the fund for use in any municipality in which human remains are discovered in unmarked burial sites in accordance with a process approved by the commissioner. The commissioner may approve any process developed through consensus or agreement of the interested parties, including the municipality, a Native American group historically based in Vermont with a connection to the remains, owners of private property on which there are known or likely to be unmarked burial sites, and any other appropriate interested parties, provided the commissioner determines that the process is likely to be effective, and includes all the following:

(1) Methods for determining the presence of unmarked burial sites, including archaeological surveys and assessments and other nonintrusive techniques.

(2) Methods for handling development and excavation on property on which it is known that there is or is likely to be one or more unmarked burial sites.

(3) Options for owners of property on which human remains in unmarked burial sites are discovered or determined to be located.

(4) Procedures for protecting, preserving or moving unmarked burial sites and human remains, subject, where applicable, to the permit requirement and penalties of this chapter.

(5) Procedures for resolving disputes.

(d) If unmarked burial sites and human remains are removed, consistent with the process set forth in this section and any permit required by this chapter, there shall be no criminal liability under 13 V.S.A. § 3761.

(e) The funds shall be used for the following purposes relating to unmarked burial sites:

(1) To monitor excavations.

(2) To protect, preserve, move, or reinter unmarked burial sites and human remains.

(3) To perform archaeological assessments and archaeological site or field investigations, including radar scanning and any other nonintrusive technology or technique designed to determine the presence of human remains.

(4) To provide mediation and other appropriate dispute resolution services.

(5) To acquire property or development rights, provided the commissioner of economic, housing and community development determines that disbursements for this purpose will not unduly burden the fund, and further provided the commissioner shall expend funds for this purpose only with the concurrence of the secretary of commerce and community development and after consultation with the legislative bodies of any affected municipality or municipalities.

(6) Any other appropriate purpose determined by the commissioner to be consistent with the purposes of this fund.

(f) When an unmarked burial site is first discovered, the discovery shall be reported immediately to a law enforcement agency. If, after completion of an investigation pursuant to section 5205 of this title, a law enforcement agency determines that the burial site does not constitute evidence of a crime, the law enforcement agency shall immediately notify the state archeologist who may authorize appropriate action regarding the unmarked burial site. (Added 2001, No. 149 (Adj. Sess.), § 57, eff. June 27, 2002; amended 2003, No. 63, § 36, eff. June 11, 2003; 2009, No. 135 (Adj. Sess.), § 10; No. 151 (Adj. Sess.), § 1, eff. June 1, 2010.)

§ 5213. Removal; form and disposition of permit

Such permit shall state specifically where such body is to be buried, cremated or entombed and the time and manner of its removal. A town clerk issuing such a permit shall make it in duplicate if the body is to be removed from the town, one copy of which shall be delivered to the person having charge of the cemetery or tomb from which the body is to be taken and the other shall be delivered to the person having charge of the cemetery or tomb wherein it is desired to place the body. (Amended 1979, No. 142 (Adj. Sess.), § 17.)

§ 5214. Duties of sexton; no burial or removal without permit

A sexton or other person having the care of a cemetery, tomb or receiving vault shall not receive or permit the burial or entombment of a dead body, or the remains thereof, in the cemetery or tomb of which he has charge, or the removal of a body therefrom, until there is delivered to him a certificate of permission issued in accordance with the provisions of this chapter.

§ 5215. Burial returns

A sexton or other person having charge of a cemetery, tomb or receiving vault, during the first week of each month, shall deliver to the clerk of the town in which such cemetery, tomb or vault is located the burial-transit and removal permits, properly certified, which he received during the preceding month. (Amended 1969, No. 265 (Adj. Sess.), § 15.)

§ 5216. Penalty

A sexton or other person having charge of a cemetery, tomb or receiving vault who violates a provision of sections 5214 and 5215 of this title shall be fined not more than $500.00 nor less than $20.00.

§ 5217. Removal of marked historic remains

(a) As used in this section:

(1) "Historic remains" means remains of a human being who has been deceased for 100 years or more, and the remains are marked and located in a publicly known or marked burial ground or cemetery.

(2) "Public good" means actions that will benefit the municipality and the property where the remains are located.

(3) "Remains" means cremated human remains that are in a container or the bodily remains of a human being.

(4) "Removal" means to transport human remains from one location to another premises.

(b) A person may apply for a removal permit to disinter or remove historic remains by filing an application with the clerk for the municipality in which the historic remains are located. The application shall include all the following:

(1) Identification of the specific location and marking of the remains.

(2) Identification of the specific location in which the remains will be reburied.

(3) The reasons for removal of the remains, including a statement of the public good that will result from the removal.

(c) An applicant for a removal permit shall send notice by first-class mail to all the following:

(1) The cemetery commissioner or other municipal authority responsible for cemeteries in the municipality in which the historic remains are located.

(2) All historical societies located within the municipality in which the historic remains are located.

(3) Any descendant known to the applicant. The applicant shall contact the Vermont Historical Society, the Vermont Old Cemetery Association, the Vermont Cemetery Association, and any veterans' organization operating within the county in which the historic remains are located in order to ascertain the whereabouts of any known descendants.

(4) The state archeologist.

(d) A cemetery commissioner or municipal authority responsible for cemeteries, a historical society, a descendant, or the state archeologist may file an objection to the proposed removal of historic remains with the probate court in the district in which the historic remains are located and with the clerks of the municipality in which the historic remains are located within 30 days after the date the notice was mailed.

(e) If no objection is received within 30 days after the date the notice was last published as required by subsection (c) of this section, the municipal clerk shall issue a removal permit.

(f) If the probate court receives an objection within the 30-day period, the court shall notify the clerk for the municipality in which the historic remains are located and schedule a hearing on whether to allow removal as described in the application.

(g) The probate court, after hearing, shall order the municipal clerk to grant or deny a permit for removal of the historic remains. The court shall consider the impact of the removal on the public good.

(h) The permit shall require that all remains, markers, and relevant funeral-related materials associated with the burial site be removed, and the permit may require that the removal be conducted or supervised by a qualified professional archeologist in compliance with standard archeological process. All costs associated with the removal shall be paid by the applicant. (Added 2009, No. 151 (Adj. Sess.), § 4, eff. June 1, 2010.)

§ 5218. Determination of death

An individual who has sustained either irreversible cessation of all functions of the entire brain, including the brain stem, or irreversible cessation of circulatory and respiratory functions is dead. A determination of death must be in accordance with accepted medical standards. (Added 1981, No. 62, eff. April 30, 1981.)

§ 5219. Persons missing and presumed dead; issuance of presumptive death certificate

Subsection (a) effective until February 1, 2011; see also subsection (a) set out below.

(a) On application of a spouse, parent, child or other near relative the probate court may direct the chief medical examiner to complete and sign a certificate of presumed death of a person who was a resident of the probate district and who has been absent for a continuous period of five years during which, after diligent search, the person has not been heard of or from or seen and whose absence has not been satisfactorily explained.

Subsection (a) effective February 1, 2011; see also subsection (a) set out above.

(a) On application of a spouse, parent, child or other near relative the probate division of the superior court may direct the chief medical examiner to complete and sign a certificate of presumed death of a person who was a resident of the probate district and who has been absent for a continuous period of five years during which, after diligent search, the person has not been heard of or from or seen and whose absence has not been satisfactorily explained.

(b) On application of a spouse, parent, child or other near relative the superior court may direct the chief medical examiner to complete and sign a certificate of presumed death of a person who has been exposed to a specific peril of death and after diligent search, has not been heard of or from or seen. (Added 1989, No. 236 (Adj. Sess.), § 1, eff. June 4, 1990; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5220. Decision-making regarding remains; reciprocal beneficiary

A decedent's reciprocal beneficiary, as defined in section 1302 of Title 15, shall have the same rights as a spouse with respect to matters related to this chapter. (Added 1999, No. 91 (Adj. Sess.), § 32.)

§ 5221. Definitions

For the purposes of this subchapter:

(1) "Fetal death" means a death prior to the complete expulsion or extraction from the mother of a product of conception; the death is indicated by the fact that after such separation, the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. (Added 1973, No. 99, § 1.)

§ 5222. Reports

(a) The following fetal deaths shall be reported by the hospital, physician, or funeral director directly to the commissioner within seven days after delivery on forms prescribed by the board:

(1) All fetal deaths of 20 or more weeks of gestation or, if gestational age is unknown, of 400 or more grams, 15 or more ounces, fetal weight shall be reported;

(2) All therapeutic or induced abortions, as legally authorized to be performed, of any length gestation or weight shall be reported;

(3) Spontaneous abortions and ectopic pregnancies of less than 20 weeks gestation are not required to be reported.

(b) The physician who treats a woman as a result of a miscarriage or abortion shall report the fetal death if it is not known to be previously reported under subsection (a) of this section. If there is evidence of violence or other unusual or suspicious circumstances, the medical examiner shall be immediately notified, and he shall complete at least the medical items on the report. If a funeral director is to be involved, the physician may delegate to the funeral director the responsibility for completing items other than those of a medical nature. Similarly, the physician may delegate the responsibility for completion of nonmedical items to appropriate personnel having access to records containing the information.

(c) If a fetal death occurs on a moving conveyance, the place of occurrence shall be given as the town or city where removal from the vehicle took place.

(d) Fetal death reports are for statistical purposes only and are not public records. They shall be destroyed after five years. (Added 1973, No. 99, § 1.)

§ 5223. Unidentified fetus

A medical examiner shall investigate an unidentified fetus and shall prepare and file a report. If it cannot otherwise be determined, the place where the fetus was found shall be entered as place of fetal death. (Added 1973, No. 99, § 1.)

§ 5224. Disposition of remains; permits

(a) Fetal remains shall be disposed of by burial or cremation unless released to an educational institution for scientific purposes or disposed of by the hospital or as directed by the attending physician in a manner which will not create a public health hazard. Permission shall be obtained from one of the parents, if competent, for disposition in all cases where a funeral director is not involved. One copy of the fetal death report shall be printed in such manner that completion and signing by the physician or medical examiner shall constitute permission to make final disposition of the fetal remains.

(b) When a funeral director is involved or when the fetal remains are to be privately buried or disposed of by a commercial crematory, the funeral director or other person taking charge of the remains shall obtain from the hospital or physician the disposition permit portion of the report and shall deliver it to the sexton or other person having care of the cemetery, tomb, vault, or crematory

before burial or other disposition takes place. These permits shall be delivered each month to the clerk of the town in which burial or disposition took place, in the same manner as permits for burial of dead bodies; so also shall all other provisions of sections 5209-5216 of this title be applicable to fetal remains as are applicable to dead bodies.

(c) When disposition of fetal remains is by means other than those specified in subsection (b) of this section and a funeral director is not involved, the disposition permit copy of the report shall be completed by the appropriate official of the hospital or by the physician or other person in charge of disposition and sent to the commissioner within ten days of such disposition. These permits may be destroyed after five years. (Added 1973, No. 99, § 1.)

§ 5225. Penalty

A person who violates a provision of this subchapter, unless another penalty is otherwise provided, shall be fined not more than $500.00. (Added 1973, No. 99, § 1.)

§ 5226. Definitions

For purposes of this subchapter:

(1) "Estranged" means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that demonstrates an absence of affection, trust, and regard for the decedent.

(2) "Near relative" means the individuals listed in subdivisions 5227(a)(2) through (5) of this title.

(3) "Right to disposition" means the right to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services. (Added 2007, No. 56, § 1.)

§ 5227. Right to disposition

(a) If there is no written directive of the decedent, in the following order of priority, one or more competent adults shall have the right to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services:

(1) an individual appointed to arrange for the disposition of decedent's remains pursuant to chapter 231 (advance directives) of this title;

(2) a surviving spouse, civil union partner, or reciprocal beneficiary, as defined in section 1302 of Title 15, of the decedent;

Subdivision (a)(3) effective until February 1, 2011; see also subdivision (a)(3) set out below.

(3) a sole surviving child of the decedent or a majority of the surviving children, except as provided for in subdivision (b)(1) of this section, provided that if the child is a minor, his or her interest may only be effected by a legal guardian appointed by the probate court;

Subdivision (a)(3) effective February 1, 2011; see also subdivision (a)(3) set out above.

(3) a sole surviving child of the decedent or a majority of the surviving children, except as provided for in subdivision (b)(1) of this section, provided that if the child is a minor, his or her interest may only be effected by a legal guardian appointed by the probate division of the superior court;

(4) in the case of a minor or a disabled adult, the custodial parent or the parent who had been providing the primary physical care of the decedent; or, if not applicable, a sole surviving parent, or both parents, of the decedent; or either parent as provided for in subdivision (b)(2) of this section;

(5) a sole surviving sibling of the decedent or a majority of the surviving siblings except as provided for in subdivision (b)(3) of this section;

(6) any other family member, in descending order of kinship under the laws of descent and distribution, except that if there is more than one family member of the same degree of relation, a majority of family members of that degree, except as provided in subdivision (b)(4) of this section, may exercise the right of disposition;

(7) a guardian of the decedent at the time of death;

(8) any other individual willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the representative of the decedent's estate, after attesting in writing that a good faith but unsuccessful effort has been made to contact the individuals described in subdivisions (1)

through (7) of this subsection or that those individuals have waived any interest in exercising their rights under this subchapter; or

(9) the funeral director or crematory operator with custody of the body, after attesting in writing that a good faith effort has been made to contact the individuals described in subdivisions (1) through (8) of this subsection.

(b)(1) If there is more than one surviving child of the decedent and a majority of the children is unable to be contacted, less than a majority of the surviving children may make the decisions if they have made prompt, reasonable efforts to contact all other surviving children, prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions.

(2) If one parent is unable to be contacted, the remaining parent may make the decisions if that parent has made prompt, reasonable efforts to contact the other parent and is not aware of any opposition by the other parent to those decisions.

(3) If there is more than one surviving sibling of the decedent and a majority of the siblings is unable to be contacted, less than a majority of the surviving siblings may make the decisions if they have made prompt, reasonable efforts to contact all other surviving siblings, prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions.

(4) If there is more than one family member in the highest applicable order of kinship under the laws of descent and distribution and a majority of these family members is unable to be contacted, less than a majority of the surviving family members in this order may make the decisions if they have made prompt, reasonable efforts to contact all other surviving family members in this order, prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions. (Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5228. Forfeiture

An individual recognized under section 5227 of this title to have a right of disposition shall forfeit that right in the following circumstances:

(1) the individual is identified by a law enforcement agency as a person of interest and likely to be prosecuted or is under prosecution for first or second degree murder or voluntary manslaughter in connection with the decedent's death, if the status of the investigation or the prosecution is known to the funeral director or crematory operator, except that if the prosecution is not

pursued or the individual is acquitted of the alleged crime before the remains are disposed of, the individual shall regain the right;

(2) the individual does not exercise the right of disposition within three days of notification of the death or within five days of the decedent's time of death, whichever is earlier;

Subdivision (3) effective until February 1, 2011; see also subdivision (3) set out below.

(3) the probate court pursuant to section 5231 of this title determines that the individual entitled to the right of disposition and the decedent were estranged at the time of death; or

Subdivision (3) effective February 1, 2011; see also subdivision (3) set out above.

(3) the probate division of the superior court pursuant to section 5231 of this title determines that the individual entitled to the right of disposition and the decedent were estranged at the time of death; or

Subdivision (4) effective until February 1, 2011; see also subdivision (4) set out below.

(4) as otherwise ordered by the probate court.

Subdivision (4) effective February 1, 2011; see also subdivision (4) set out above.

(4) as otherwise ordered by the probate division of the superior court. (Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5229. Cost of disposition

The cost for the disposition of remains and funeral goods or services shall be borne by the decedent's estate, subject to the limits for insolvent estates imposed by 14 V.S.A. § 1205, or by any individual who agrees to pay the costs. Nothing in this subchapter shall be construed to require a funeral director or crematory operator to provide goods or services for which there is no payment. (Added 2007, No. 56, § 1.)

§ 5230. Rights of funeral director or crematory operator

Introductory paragraph effective until February 1, 2011; see also introductory paragraph set out below.

A funeral director or crematory operator may determine the final disposition of remains and may file a civil action in probate court against a person, estate, banking institution, governmental agency, or other entity which may have liability for the final disposition, either:

Introductory paragraph effective February 1, 2011; see also introductory paragraph set out above.

A funeral director or crematory operator may determine the final disposition of remains and may file a civil action in probate division of the superior court against a person, estate, banking institution, governmental agency, or other entity which may have liability for the final disposition, either:

(1) to seek a declaratory judgment that the director's or operator's proposed action would be in compliance with the applicable provisions of law; or

(2) to seek a judgment that the director or operator's action is in compliance with the applicable provisions of law and to recover reasonable costs and fees for the final disposition when:

(A) the funeral director or crematory operator has actual knowledge that there is no surviving family member, guardian, or individual appointed to arrange for the disposition of decedent's remains pursuant to chapter 231 of this title;

(B) the funeral director or crematory operator has made reasonable efforts to locate and contact any known family member, guardian, or agent; and

(C) the appropriate local or state authority, if any, fails to assume responsibility for disposition of the remains within 36 hours of written notice, which may be delivered by hand, United States mail, facsimile transmission, electronic means, or telegraph. (Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5231. Civil action

Subsection (a) effective until February 1, 2011; see also subsection (a) set out below.

(a) Any individual who is a near relative of the decedent or the custodian of the decedent's remains may file an action in probate court requesting the court to appoint an individual to make decisions regarding the disposition of the decedent's remains or to resolve a dispute regarding the appropriate disposition of remains, including any decisions regarding funeral goods and services. The court or the individual filing the action may move to join any necessary person under the jurisdiction of the court as a party. The agency of human services may also be joined as a party if it is suggested on the record that there will be insufficient financial resources to pay for funeral goods and services.

Subsection (a) effective February 1, 2011; see also subsection (a) set out above.

(a) Any individual who is a near relative of the decedent or the custodian of the decedent's remains may file an action in the probate division of the superior court requesting the court to appoint an individual to make decisions regarding the disposition of the decedent's remains or to resolve a dispute regarding the appropriate disposition of remains, including any decisions regarding funeral goods and services. The court or the individual filing the action may move to join any necessary person under the jurisdiction of the court as a party. The agency of human services may also be joined as a party if it is suggested on the record that there will be insufficient financial resources to pay for funeral goods and services.

(b) In making its decision, the court shall consider the following factors:

(1) the decedent's expressed directions or wishes;

(2) the decedent's religious affiliation or beliefs;

(3) the cost and practicality of the proposed arrangements and disposition and the ability of the responsible party or parties to pay for the proposed arrangements and disposition;

(4) the relationship between the decedent and any individual claiming the right of disposition, including whether the individual and the decedent were estranged;

(5) the wishes of any individual willing to pay the cost of the proposed arrangements and disposition;

(6) whether the proposed arrangements are inclusive of the desires of the family; and

(7) any other information the court, in its discretion, deems relevant.

(c) Except as provided for under subdivision (b)(4) of this section, an individual who has paid or agreed to pay for all or part of the funeral arrangements or final disposition does not have greater priority to the right to disposition than as set forth in section 5227 of this title.

(d)(1) A funeral director or crematory operator may refuse to accept bodily remains, to inter or otherwise dispose of bodily remains, or to complete the arrangements for the final disposition until such time as the court issues an order or the parties to the action submit a final stipulation approved by the court regarding the disposition of remains.

(2) If the funeral director or crematory operator retains the remains for final disposition while an action is pending, the funeral director or crematory operator may refrigerate or shelter the remains while awaiting a preliminary or final order of the court. The cost of refrigeration or sheltering shall be the responsibility of the party or parties who contracted with the funeral director or crematory operator, the person or entity who is otherwise liable for the costs of final disposition, or the estate as ordered by the court, or any combination of these, and the court may include in the order a decision concerning which of these shall be responsible for paying these costs.

(e) If a funeral director or crematory operator commences an action under this section, the funeral director or crematory operator may ask the court to include an order against the estate or the parties for reasonable legal fees and costs. If the estate is insolvent and no other person should be responsible for the filing fee, the court may waive the filing fee. The court, in its discretion, may order a party or parties to pay the reasonable costs of final disposition as a condition of the appointment to make disposition decisions. The court may order that a party, or parties, including the petitioner, pay reasonable legal fees and costs associated with the action.

Subsection (f) effective until February 1, 2011; see also subsection (f) set out below.

(f) Any appeal from the probate court shall be on the record to the superior court. There shall be no appeal as a matter of right to the supreme court.

Subsection (f) effective February 1, 2011; see also subsection (f) set out above.

(f) Any appeal from the probate court shall be on the record to the civil division of the superior court. There shall be no appeal as a matter of right to the supreme court. (Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 148, eff. Feb. 1, 2011.)

§ 5232. Procedures generally

Subsection (a) effective until February 1, 2011; see also subsection (a) set out below.

(a) Any action filed under this subchapter shall be summary in nature, and a hearing shall be held as soon as practicable. The probate court may order interim, ex parte relief based on available information. In extraordinary circumstances, the court may authorize use of discovery, subject to the inherent time constraints required because of the subject matter. The Vermont Rules of Evidence shall not apply, except for those rules respecting privilege. Affidavits of parties and witnesses shall be admissible evidence that may be rebutted by witnesses or affidavits offered by other parties. Other evidence is admissible if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their daily affairs. Telephone testimony shall be authorized unless otherwise ordered for good cause shown. Any person shall be entitled, but not required, to be represented by an attorney.

Subsection (a) effective February 1, 2011; see also subsection (a) set out above.

(a) Any action filed under this subchapter shall be summary in nature, and a hearing shall be held as soon as practicable. The probate division of the superior court may order interim, ex parte relief based on available information. In extraordinary circumstances, the court may authorize use of discovery, subject to the inherent time constraints required because of the subject matter. The Vermont Rules of Evidence shall not apply, except for those rules respecting privilege. Affidavits of parties and witnesses shall be admissible evidence that may be rebutted by witnesses or affidavits offered by other parties. Other evidence is admissible if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their daily affairs. Telephone testimony shall be authorized unless otherwise ordered for good cause shown. Any person shall be entitled, but not required, to be represented by an attorney. (Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, e

ff. Feb. 1, 2011.)

§ 5233. Limited liability

A funeral director or crematory operator shall not be subject to civil liability or subject to disciplinary action for carrying out the disposition of the remains if he or she relied in good faith on a funeral service contract or authorization or for following the instructions of an individual whom the funeral director or crematory operator reasonably believes or believed holds the right of disposition. (Added 2007, No. 56, § 1.)

Title 18: Health

Chapter 121: CEMETERIES

§ 5301. Application of chapter

This chapter shall be applicable to all agencies now engaged in, or which shall hereafter engage in any business of a cemetery within this state, and to all property used or intended to be used for the permanent disposition of the human dead.

§ 5302. Definitions

For the purposes of this chapter and unless otherwise required by the context:

"Agencies" mean town cemeteries, religious or ecclesiastical society cemeteries, cemetery associations, and any person, firm, corporation or unincorporated association heretofore engaged in the business of a cemetery;

"Cemetery" means any plot of ground used, or intended to be used, for the burial or disposition permanently of the remains of the human dead in a grave, a mausoleum, a columbarium, a vault, or other receptacle;

"Cemetery association" means any corporation now or hereafter organized which is or shall be authorized by its articles to conduct the business of a cemetery;

"Columbarium" means a structure or room or other space in a building or structure of durable and lasting fireproof construction, containing niches, used, or intended to be used, to contain cremated human remains;

"Community mausoleum" means a structure or building of durable and lasting construction, used or intended to be used, for the permanent disposition in

crypts or spaces therein of the remains of deceased persons, provided such crypts or spaces and their use for the purposes aforesaid, are available to or may be obtained by individuals or the public for a price in money or its equivalent;

"Cremated remains" means remains of a deceased person after incineration in a crematory;

"Cremation" means the reducing of the remains of deceased persons, by the use of retorts, to cremated remains and the disposal thereof in a columbarium, niche, mausoleum, grave, or in any other manner not contrary to law;

"Crematory" means a building or structure containing one or more retorts, used or intended to be used, for the reducing of the bodies of deceased persons to cremated remains;

"Crypt" means the chamber in a mausoleum of sufficient size to contain the remains of deceased persons;

"Niche" means a recess in a columbarium, used, or intended to be used, for the permanent disposition of the cremated remains of one or more deceased persons; and

"Temporary receiving vault" means a vault, or crypt, in a structure of durable and lasting construction, used or intended to be used for the temporary deposit therein for a period of time not exceeding one year of the remains of a deceased person.

§ 5303. Policy declared

The object, purposes and activities of a cemetery shall be restricted to those acts only that are necessary to enable it to accomplish the purposes for which it is created. It shall not be conducted for the purpose of private gain either directly or indirectly to any of the members of the agencies engaged in such business. Lawfully organized cemeteries may be conducted and operated by those agencies now engaged in their conduct and operation, by churches, by religious and ecclesiastical societies, by cemetery associations incorporated as hereinafter provided, and by no others. However, this chapter is not intended to apply to any agency organized, existing and operating the business of a cemetery prior to June 1, 1933, under any existing law, nor to affect any vested rights acquired thereunder. Insofar, however, as the provisions of this chapter do not violate any vested rights, so acquired, it shall apply to all such agencies.

§ 5304. Limitation of powers

The business of cemeteries shall not include among its corporate powers, either by express grant or as an incident thereto, the right to engage in any business enterprise or occupation such as is usually pursued by private individuals. Nevertheless, this provision shall not exclude the right of cemeteries to sell corner posts and other implements to define the boundaries of lots or other subdivisions of such cemeteries, and articles incident to the care and maintenance of lots and burial spaces, and the right of cemeteries to furnish or sell materials necessary for a complete cemetery burial service.

§ 5305. Right to make rules and regulations

The right of an agency engaged in the business of a cemetery, community mausoleum or columbarium to make rules and regulations for the use, care, management and protection thereof is hereby affirmed, and such agencies may by rule or regulation determine who may be buried or deposited therein.

§ 5306. Perpetual care funds

An agency engaged in the cemetery business shall have the right to acquire by gift, devise, or otherwise, land and property of every name and nature and to set aside surplus funds, to be held in trust as a perpetual care fund, the income thereof to be used according to the directions of the trust, where such directions are given, and where no specific directions are given, or, where given, and the purpose is incapable of performance, or there is a surplus of income after the directions of the trust have been fully complied with and performed, to use the same for the purpose of building, repairing, maintaining, adorning and beautifying buildings or parts thereof, fences, graves, vaults, mausoleums, monuments, walks, cemetery lots, grounds, drives, or avenues, as the interests of the lot owners and cemetery shall appear. The duty upon all agencies organized to establish a perpetual care fund according to the terms hereinafter set forth is hereby imposed.

§ 5307. Rule against perpetuities

A trust having one or more purposes provided under this chapter shall not be declared invalid by reason of indefiniteness as to the termination thereof, nor by the rule against perpetuities.

[Section 5308 effective until February 1, 2011; see also section 5308 set out below.]

§ 5308. Custodian of funds; bond

When such funds are not deposited with a bank chartered by the state or a national bank, the custodian or depositary thereof, unless otherwise directed by the terms of the trust or other provisions of this chapter, shall be the treasurer of the agency owning, operating or controlling the cemetery in which lots or burial spaces are sold, or in which mausoleums or columbariums are located, who shall furnish and file with such agency, at its expense, a good and sufficient bond or bonds with surety or sureties approved by the probate court, indemnifying and securing such agency against loss occasioned by the failure of the treasurer to properly protect, preserve and administer such funds under his control. Such funds shall be invested and the income therefrom expended upon the written orders of the directors or trustees of such agency.

[Section 5308 effective February 1, 2011; see also section 5308 effective until February 1, 2011 set out above.]

§ 5308. Custodian of funds; bond

When such funds are not deposited with a bank chartered by the state or a national bank, the custodian or depositary thereof, unless otherwise directed by the terms of the trust or other provisions of this chapter, shall be the treasurer of the agency owning, operating or controlling the cemetery in which lots or burial spaces are sold, or in which mausoleums or columbariums are located, who shall furnish and file with such agency, at its expense, a good and sufficient bond or bonds with surety or sureties approved by the probate division of the superior court, indemnifying and securing such agency against loss occasioned by the failure of the treasurer to properly protect, preserve and administer such funds under his control. Such funds shall be invested and the income therefrom expended upon the written orders of the directors or trustees of such agency. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5309. Investment of funds

The principal sum of such funds shall be invested in bonds of the United States or the state of Vermont, or in the bonds or in notes issued in anticipation of taxes and authorized by vote of any town, village or city in this state, or loaned upon first mortgage on real estate in this state a sum not in excess of sixty percent of the value of such real estate, or upon collateral of any of the above securities of equal value with the loan, or in shares of a savings and loan association of this state or share accounts of a federal savings and loan

association with its principal office in this state and to the extent to which the withdrawal or repurchase value of such shares or accounts may be insured by the Federal Savings and Loan Insurance Corporation, or stock in a federal bank, a safe deposit company or a national bank or state bank or trust company organized and doing business in the United States. Up to thirty-five percent of the association's assets may be invested in common or

preferred stocks of corporations organized and existing under the laws of any state of the United States of America, or may be invested in the manner required for the investment of trust funds, unless otherwise authorized by the donor. No assets of the association may be loaned to a member, officer, trustee or director of any such cemetery agency. (Amended 1979, No. 144 (Adj. Sess.).)

§ 5310. Plats

An agency engaged in any business of a cemetery, community mausoleum or columbarium shall cause to be made a plat of its grounds, showing the part thereof improved or in use, and that part held for future cemetery use. The plat of the improved part shall show the land laid out in sections, lots, driveways, walks and paths, sections to be designated by symbols, and the lots shall be numbered. All additions to such improved areas, and all new cemetery grounds hereafter established, shall be platted in the manner provided above. It is further provided that in case of a community mausoleum or columbarium, every agency shall cause to be made a plat thereof on which shall be set forth the sections, halls, rooms, corridors, elevators or other subdivisions thereof with their descriptive names and numbers. The agency making such plat shall file the same for record in the office of the town clerk of the town in which the cemetery, community mausoleum or columbarium is located.

§ 5311. Recording of plats

It shall be the duty of the town clerk to receive and insert or bind in a book provided for that purpose all original plats or photostatic copies thereof, made in accordance with the provisions of this chapter, of such cemetery, community mausoleum or columbarium, which shall constitute the recording thereof. The fees therefor shall not exceed the cost of the work of such recording, plus $3.00. The making or recording of a cemetery plat by any agency other than those specified in this chapter, or the recording of any cemetery plat which does not conform to and with the provisions of this chapter shall be void and of no effect.

§ 5312. Limitation of sales

A lot, section, subdivision, crypt, niche or any part of the cemetery, community mausoleum or columbarium shall not be sold, contracted for sale, or offered for sale, until and unless a plat shall be made and recorded in accordance with the terms of this chapter.

§ 5313. Records; burial records open to public

An agency engaged in the business of a cemetery, community mausoleum or columbarium shall provide and maintain a suitable place of deposit for the records and files of such cemetery, community mausoleum or columbarium, of such character as will safely keep and preserve such records and files from loss and destruction, and it shall make and file proper records in such place. The record of burials, interments and cremations shall at all reasonable times be open to the public.

§ 5314. Sale of property for interment purposes; disposition of receipts

After recording the plat as hereinbefore provided, and subject to the further provisions of this chapter relating to the sale of lots, crypts, and niches, the sale of lots, crypts and niches may be made for the sole purpose of interments under such rules and regulations as may be imposed by the agency owning the cemetery, community mausoleum or columbarium, and no part of the proceeds from such sales, or other income shall ever be divided among its members, but they shall be used exclusively for the purposes of the cemetery, community mausoleum or columbarium, or placed in the perpetual care fund thereof, the income thereof to be so used.

§ 5315. Sale of property for other than burial purposes; disposition of proceeds

Either before or after the recording of the plat, as hereinbefore provided, whenever it is determined that such lands acquired for cemetery purposes, except those acquired by condemnation proceedings, are unsuitable for burial purposes, such lands may be sold for purposes other than interment, and conveyed in fee simple in such manner and upon such terms as may be provided by the agencies owning the same. The proceeds thereof shall be applied to the purchase of other lands or to general cemetery purposes. When such sales are made, the land so sold shall be returned by the agencies to the tax lists for taxation. In the case of land acquired by condemnation proceedings, it

shall be disposed of under the law governing the disposal of land acquired by condemnation proceedings.

§ 5316. Encumbrance of cemetery property prohibited

A public mausoleum, crematorium, columbarium, the land or lot or right of burial shall not be mortgaged, pledged or in any manner encumbered by the agency owning or controlling the same.

§ 5317. Tax exemptions

Except as otherwise provided in this chapter, all cemetery lands, buildings and property, and the proceeds thereof, as defined in this chapter, which have been platted and devoted to or held exclusively for cemetery purposes, including donations or gifts and held in trust or otherwise, and all other funds held for the improvement, maintenance, repair and ornamentation of such cemetery, together with the income therefrom and all other revenues and income shall be exempt from taxation.

§ 5318. Public use of cemetery for other purposes

A public highway or railroad shall not be laid through such burial ground without the consent of the town, association or the general assembly, and no portion of such burial ground shall be taken for public use without special authority from the general assembly.

§ 5319. Disposition of remains of dead

(a) The permanent disposition of the remains of the human dead shall be by interment in the earth or deposit in a chamber, vault or tomb formed wholly or partly above the surface of the ground of a cemetery conducted and maintained pursuant to the laws of the state, by deposit in a crypt of a mausoleum or by cremation. However, this shall not be construed to prevent a private individual from setting aside a portion of his premises owned in fee by him, and using the same as a burial space for the members of his immediate family, so long as his use for such purpose is not in violation of the health laws and regulations of the state and the town in which such land is situated.

(b) No interment of any human body in the earth shall be made unless the distance from the bottom of the outside coffin shall be at least five feet below the natural surface of the ground, excepting only infants under four years of age, whose bodies shall be so interred that the bottom of the outside coffin

enclosing them shall be at least three and one-half feet below the natural surface of the ground.

(c) No deposit of the remains of the human dead shall be made in a single chamber, vault or tomb wholly or partly above the surface of the ground unless the part thereof below the natural surface of the ground be of a permanent character, constructed of materials capable of withstanding extreme climatic conditions, be waterproof and air tight, and can be sealed permanently so as to prevent all escape of effluvia. That portion of the same above the natural surface of the ground shall be constructed of natural stone of a standard not less than that required by the United States government for monuments erected in national cemeteries, of durability sufficient to withstand all conditions of weather, and of a character to insure its permanence.

(d) The remains of a human body after cremation may be deposited in a niche of a columbarium, in a crypt of a mausoleum, be buried or disposed of in any manner not contrary to law.

§ 5320. Temporary vaults

A town may construct and maintain, on land owned by such town, temporary receiving vaults for the temporary disposition of dead bodies, if approved by a majority of voters present and voting at an annual or special town meeting duly warned for that purpose. Such temporary disposition shall be for a period not to exceed one year.

§ 5321. Improvement of private burial grounds; duties of officers

When the use and care of a private burial ground has been abandoned and such ground becomes unsightly from any cause, or when headstones or monuments have been displaced, the selectmen or board of cemetery commissioners having charge of the public cemeteries in the town where such burial ground is located, on written request of three legally qualified voters of such town, shall forthwith cause a notice to be published once a week on the same day of the week for three successive weeks in some newspaper circulating therein, calling upon any person interested in such burial ground to cause the same to be put in proper condition within three months from the date of such notice. At the expiration of such time, if such demand is not complied with, the selectmen or board shall proceed then and thereafter as if such ground were a public burial place. (Amended 1989, No. 142 (Adj. Sess.), § 9.)

§ 5322. Temporary access to cemeteries

(a) Any person wishing to have a temporary right of entry over private land in order to enter a graveyard enclosure to which there is no public right-of-way may apply in writing to the selectmen or cemetery commissioners, as the case may be, state the reason for such request and the period of time for which such right is to be exercised. The applicant shall also notify in writing an owner or occupier of the land over which the right-of-way is desired. If the selectmen or cemetery commissioners find that the request is reasonable, they shall issue a permit for a temporary right of entry designating the particular place where, and the manner in which, the land may be crossed. The owner or occupier of the land may recommend a place of crossing which, if reasonable, shall be the place designated by the selectmen or cemetery commissioners.

(b) An owner or occupier of the land who refuses to comply with a permit issued under subsection (a) of this section may be liable for reasonable costs and attorney fees expended to enforce the permit. (Added 1989, No. 142 (Adj. Sess.), § 10; amended 1993, No. 128 (Adj. Sess.), § 1.)

§ 5361. Appropriations and regulations by towns

A town may vote sums of money necessary for purchasing, holding and keeping in repair suitable grounds and other conveniences for burying the dead. The selectmen may make necessary regulations concerning public burial grounds and for fencing and keeping the same in proper order.

§ 5362. Repair; expense; notice

(a) When lots or walks in a public burial ground become unsightly with weeds or by an unchecked growth of grass or from any other cause, or when headstones or monuments have become displaced or out of repair, the selectmen or cemetery commissioners shall cause such lots and walks to be cleared of weeds and grass, the headstones or monuments to be replaced or repaired or other disfigurements removed, and may draw orders on the town treasurer for the expenses incurred. The amount drawn from the treasury of a town for such purpose in any year shall not exceed $500.00.

(b) When a headstone or monument is to be replaced, the selectmen or cemetery commissioners shall notify relatives of the deceased, if known, of the date of the removal and that the relative may claim the removed headstone or monument within 30 days after the date of the notice. (Amended 1993, No. 128 (Adj. Sess.), § 2.)

§ 5363. Penalty

A selectman, cemetery commissioner or trustee, who violates a provision of this chapter, or wilfully neglects any of the duties imposed by this chapter, for which other penalties are not provided, shall be fined not more than $200.00. (Amended 1989, No. 142 (Adj. Sess.), § 11.)

§ 5364. Fences; penalty

When the selectmen or cemetery commissioners neglect to keep in repair the fence around a public burial ground, the town may be prosecuted for such neglect and fined not more than $400.00. The fine shall be expended in repairing the fences around such burial grounds under the direction of a commissioner appointed by the court. (Amended 1989, No. 142 (Adj. Sess.), § 12.)

§ 5365. Damages for want of fence; liability

When a person or estate is damaged by cattle, horses, sheep or swine breaking into a public burial ground and injuring a grave, headstone, monument, shrubbery or flowers, for want of a legal fence around such burial ground, such person or estate may recover of the town double the amount of damages, in a civil action.

§ 5366. Not liable until notified

A town shall not be charged for not keeping in repair the fence around a burial ground, or be liable for damage done, unless the selectmen, or cemetery commissioners, as the case may be, had notice in writing twenty days previous that the fence was out of repair. (Amended 1989, No. 142 (Adj. Sess.), § 13.)

§ 5367. Duties of selectmen

When a town neglects to place one or more of its public burial grounds under the charge of a board of cemetery commissioners, the selectmen shall have power to sell and convey lots in such burial grounds. They shall apply the proceeds of such sales and accept for the town and use legacies, bequests and gifts for improving and embellishing the grounds.

§ 5368. Exceptions

Sections 5361-5367 of this title shall not apply to a burial ground which is subject to other control than that of the selectmen or the board of cemetery commissioners.

§ 5369. Removal

When it is impracticable to preserve a burial ground in proper condition, and the removal of the remains of the dead therein is required, the selectmen, in their discretion, may cause such remains to be removed and interred in a more suitable public burial ground.

§ 5370. Notice; headstones

When remains of the dead are removed, the selectmen, if necessary, shall cause suitable headstones or monuments to be erected to the memory of the deceased, or to designate the place of interment. Such remains shall not be so removed if there are known kindred of the deceased residing in the state, until after thirty days notice of the intention so to do. When kindred do not reside in the state, and known kindred reside without the state, then the remains shall not be so removed, until after sixty days' notice to one of such kindred. Such notice shall be given personally or by registered mail.

§ 5371. Town or city to furnish headstone

In case of the burial of a person not having known estate, and not having a suitable marker or headstone erected at his grave within three years from the date of such burial, the selectmen of the town or the aldermen of a city, as the case may be, wherein such person is buried, shall cause to be erected at such person's grave, at the expense of such town or city, a suitable marker or headstone with the inscription thereon of the name of the deceased and dates of his birth and death, if the same are known.

§ 5372. Appropriation for cemetery associations

At a legal meeting of the voters thereof, when an article for such purpose has been duly inserted in the warning for such meeting, a town may appropriate such sums of money as it deems necessary for an incorporated cemetery association owning or in control of a cemetery in such town, for the purposes of such cemetery.

§ 5373. Cemetery commissioners

When a town votes to place its public burial grounds under the charge of cemetery commissioners, it shall elect separately a board of three or five cemetery commissioners, who shall have the care and management of such burial ground and exercise all the powers, rights and duties with respect to such

care and management and all responsibility on the part of the selectmen shall cease.

§ 5374. Term

The commissioner first chosen shall hold office five years, the next four years, the next three years, the next two years, and the last one year. When the term of office of each commissioner expires, a successor shall be chosen for five years. Vacancies in the board may be filled by the remaining commissioners until the next annual meeting. However, a town so voting at an annual town meeting may limit the number of the board to three members and the term of office to three years.

§ 5375. Laying out and improving grounds; burial without charge

The board of cemetery commissioners may set apart such portion of the burial grounds placed under its charge as it deems proper, as a place for the burial of persons without charge therefor, under such regulations as it prescribes. It may lay out the remaining unoccupied portions in suitable lots, with necessary paths, avenues or other reserved places, and may plant and embellish the same with trees, shrubs and flowers.

§ 5376. Sale of lots; tax exemption

The board, by one of the commissioners appointed by it for that purpose, in the name of the town, by deed, may grant and convey lots in such burial grounds to be used for the burial of the dead and on which tombs, cenotaphs and other monuments are to be erected. Such lots shall be exempt from taxation. The deeds thereof shall be recorded in the office of the town clerk of the town wherein such lots lie.

§ 5377. Proceeds of sale; expenditure

The proceeds of such sale of lots shall be paid into the town treasury, and kept separate from other funds of the town, and subject to the order of the board. Such proceeds, with the income thereof, shall be devoted to maintaining, improving and embellishing such burial grounds. If the town so votes, the board may sell lots upon condition that the proceeds therefrom shall be paid into the town treasury in trust, and the income thereof be expended in caring for such lots and the structures thereon. The board shall fix the prices for such lots and make regulations in respect to the sale and care thereof.

§ 5378. Bylaws and regulations

The board may make necessary bylaws and regulations in respect to such burial grounds, and interment of the dead not inconsistent with law, and may alter the same. Such bylaws and regulations shall be recorded in the office of the town clerk. A bylaw or regulation shall not be adopted to restrain a person in the free exercise of his religious sentiments as to the burial of the dead.

§ 5379. Report of cemetery commissioners

The board shall submit annually a written report to the town auditors as to the condition and needs of the burial grounds under its charge and of its doings, including a detailed statement of its receipts and expenditures and of the amount and disposition of the funds in its hands or subject to its control.

§ 5380. Auditors

The town auditors shall audit such statement, file it in the office of the town clerk and include the whole or a summary thereof in their annual report.

§ 5381. Transfer of care from commissioners to selectmen

By vote, a town may take its burial grounds out of the charge of the board of cemetery commissioners and place the same under the charge of the selectmen. When a town so votes, the office of cemetery commissioners shall terminate.

§ 5382. Town trust funds-Acceptance of property

A town may take and hold in trust grants, gifts or bequests of property and apply the same, or the income thereof, for the care, improvement or embellishment of its burial grounds, or a part thereof, or for the erection, preservation or removal of a monument, fence or other structure in or around the same according to the terms of the grant, gift or bequest.

§ 5383. Acceptance of money in trust

A town may vote to receive and hold money in trust, the income of which is to be used for the care and improvement of its burial grounds, or of private lots within such burial grounds or elsewhere.

§ 5384. Payment to treasurer; record; investment

(a) Unless otherwise directed by the donor, all moneys received by a town for cemetery purposes shall be paid to the town treasurer who shall give a receipt therefor, which shall be recorded in the office of the town clerk in a book kept for that purpose. In such book shall also be stated the amount received from each donor, the time when, and the specific purpose to which the use thereof is appropriated.

(b) All moneys so received by the town may be invested and reinvested by the treasurer, with the approval of the selectmen, by deposit in banks chartered by the state or in national banks, bonds of the United States or of municipalities whose bonds are legal investment for banks chartered by the state, or in bonds or notes legally issued in anticipation of taxes by a town, village or city in this state, or first mortgages on real estate in Vermont; or in the shares of an investment company, or an investment trust, which is registered under the federal Investment Company Act of 1940, as amended, if such mutual investment fund has been in operation for at least ten years and has net assets of at least $10,000,000.00; or in shares of a savings and loan association of this state, or share accounts of a federal savings and loan association with its principal office in this state, when and to the extent to which the withdrawal or repurchase value of such shares or accounts are insured by

the Federal Savings and Loan Insurance Corporation. However, in towns that elect trustees of public funds, such funds shall be invested by such trustees in any of the securities hereinbefore enumerated, and the income thereof paid to the proper officers as the same falls due. The income therefrom shall be expended for the purpose and in the manner designated by the donor. The provisions of this section as to future investments shall not require the liquidation or disposition of securities legally acquired and held.

§ 5385. Accounts; expenditures

The town treasurer shall keep a separate account of each such trust fund unless the same is in charge of the trustees of public funds. The income therefrom shall be subject to the order of the selectmen or board of cemetery commissioners as the case may be. Such boards shall expend such income pursuant to the conditions of the trust. When such boards neglect to expend the income pursuant to the conditions of the trust, the town may be indicted for such neglect and upon conviction be fined not more than $100.00.

§ 5386. Report

The town treasurer or trustees of public funds shall annually report the condition of such funds to the town.

§ 5387. Money received prior to 1895

Sections 5383-5386 of this title shall not be construed to affect the action of a town in respect to money received in trust for the purpose named by the donor, prior to February 1, 1895.

§ 5431. Cemetery associations; corporations

Every cemetery established after June 1, 1933, which is not owned and operated by a town or by a religious or ecclesiastical society shall be established, owned and operated by a corporation as hereinafter prescribed.

§ 5432. Organization and operation

Such corporation shall be organized, and the affairs of the corporation shall be governed and controlled under the provisions of chapter 1 of Title 11, under those sections thereof which provide for the organization and management of corporations not for profit.

§ 5433. Authority; powers

Upon filing the articles of incorporation, the incorporators and other members, if any, from the date of such filing, shall be and constitute a body corporate with perpetual succession and with capacity to perform all acts within the state not repugnant to law or the provisions of this chapter.

§ 5434. Penalty for doing business as a cemetery association without authority

A person, firm, corporation, or association, or a trust, trustee or trustees of any person, firm, corporation, or association, who, without authority of this chapter so to do, shall exercise or attempt to exercise any powers, privileges, or franchises which are specified or may be granted under this chapter to incorporated cemetery associations, or who shall by any device attempt to evade the provisions of this chapter applicable to cemetery associations in respect to the sale of burial lots or burial spaces and the disposition of the proceeds thereof, shall be fined not less than $1,000.00 nor more than $10,000.00, and may be enjoined from further doing of such acts at the suit of any taxpayer of the state. However, the provisions of this section shall not

affect or impair the rights of a person, firm, corporation, or association or a trust, trustee or trustees of such person, firm, corporation or association under any existing contract or contracts between such parties and incorpo

rated cemetery associations, nor shall the performance of the provisions of such contract or contracts subject parties thereto to the penalties imposed by this section.

§ 5435. Sales of lots, crypts and niches; how income applied; rules

(a) The income of a cemetery association whether derived from the sale of lots, burial spaces, crypts or niches, from donations or otherwise, shall be exclusively applied to paying for the land or other cemetery property, laying out, preserving, protecting and embellishing the cemetery and avenues leading thereto, the erection of buildings necessary for cemetery purposes, the establishing of a fund to care permanently for the cemetery, the repair and upkeep of mausoleums, vaults, columbariums, crypts and niches therein, and to paying the necessary expenses of the cemetery association. A debt shall not be contracted in anticipation of future receipts, except for the original purchase of the land, community mausoleum or columbarium, laying out, enclosing and embellishing the grounds and avenues therein and to a sum not exceeding $50,000.00 in the whole, to be paid out of future income. No part of the proceeds from the sale of lots, burial spaces, crypts, or niches, or other income of

such association, shall ever be divided among its members. All its income shall be used exclusively for the purposes of the association, as provided in this chapter or invested in a fund the income of which shall be so used. Such association may adopt such reasonable rules and regulations as it deems expedient for disposing of and conveying burial lots, spaces, crypts and niches.

(b) At a regular meeting or at a special meeting duly called for that purpose, a cemetery corporation may adopt bylaws respecting improvements upon its lots and grounds as to the embellishment and beautifying of the same. It may also provide that the cost of such improvements be paid out of the regular funds of the corporation.

§ 5436. Perpetual care fund

A cemetery association, established prior to June 1, 1933, may create a perpetual care fund out of surplus money on hand or which has been given to it by will, deed, or otherwise. A cemetery association established after such date,

shall create such a perpetual care fund by applying thereto from the initial proceeds received from the sale of lots or burial spaces a sum which shall be equivalent to and not less than twenty percent of the sale price of each lot or burial space so sold, and such association may at any time increase the same by the addition of surplus money or property received by it by will, deed or otherwise.

§ 5437. Investment

A cemetery association shall invest such trust funds and shall expend the income therefrom in accordance with the provisions of section 5309 of this title.

§ 5438. Cemetery accounts; annual reports

(a) A cemetery association shall keep and maintain adequate and correct accounts of its business transactions, which at all reasonable times shall be open to the inspection of every member of such corporation. It shall keep separate and apart from its other funds all moneys and property received by it for the perpetual care of the cemetery, community mausoleum or columbarium which is owned by it or for the lots therein, and it shall keep accurate accounts of such perpetual care funds separate and apart from its accounts of other funds.

Subsection (b) effective until February 1, 2011; see also subsection (b) set out below.

(b) The treasurer of such corporation shall make, sign and file at the annual meeting a report countersigned by the president, concerning the affairs of the corporation and the perpetual care funds, which report shall contain, among other things, a statement as to the amount of the treasurer's bond and a true statement of the total amount of the fund or funds received and set apart for the perpetual care of the lots, cemetery, community mausoleum and columbarium. Such report shall contain a list of the securities in which such fund or funds are invested, the income received therefrom, all disbursements from such income, and the balance of money or property held and on hand in such fund or funds, and copies thereof shall forthwith be filed with the town clerk of the town, and with the probate court for the district wherein the cemetery, community mausoleum or columbarium is situated.

Subsection (b) effective February 1, 2011; see also subsection (b) set out above.

(b) The treasurer of such corporation shall make, sign and file at the annual meeting a report countersigned by the president, concerning the affairs of the corporation and the perpetual care funds, which report shall contain, among other things, a statement as to the amount of the treasurer's bond and a true statement of the total amount of the fund or funds received and set apart for the perpetual care of the lots, cemetery, community mausoleum and columbarium. Such report shall contain a list of the securities in which such fund or funds are invested, the income received therefrom, all disbursements from such income, and the balance of money or property held and on hand in such fund or funds, and copies thereof shall forthwith be filed with the town clerk of the town, and with the probate division of the superior court for the district wherein the cemetery, community mausoleum or columbarium is situated. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5439. Dissolution of cemetery associations

A cemetery association, which is not owned and operated by a church or by a religious or ecclesiastical society, may be dissolved under the provisions of chapter 14 of Title 11B. Upon dissolution, all lands owned or held by it for cemetery purposes and all perpetual care funds, trust funds, and all other property held or owned by it, less dissolution expenses, may be transferred to the town in which the lands are located, and thereafter these lands may become public burial grounds, and the town shall hold the perpetual care funds and trust funds in trust for the care, improvement, and embellishment of the lots therein, according to the terms upon which they were held by the association. (Amended 1975, No. 74.)

§ 5440. Merger of cemetery associations

(a) An incorporated cemetery association or society, whether chartered by special act of the general assembly or organized under articles of association, may merge with another incorporated association or society in the same town, thereby forming a new corporation under such name as may be designated in the articles of association hereinafter referred to.

(b) Such merger shall be made by vote of a majority of the trustees or directors of each corporation. When so made, certified copies of the proceedings shall be forwarded to the secretary of state.

(c) The trustees of each such corporation may authorize the secretary thereof to sign the name of such corporation to the articles of association of the new corporation, and authorize one or more other persons to sign such articles of

association. Such articles shall be filed with the secretary of state. The articles shall set forth the name of the new corporation and they shall conform generally to the provisions of chapter 1 of Title 11B. When such articles are filed and recorded by the secretary of state, all right, title and interest in all property owned by each, and in trust funds held by each, shall vest in such new corporation, and the corporate functions of each of the corporations so merged shall cease after such new corporation has completed its organization.

§ 5481. Acquisition of land and property-Purchase or gift

The right to acquire land and property for cemetery purposes, either by purchase or gift by towns, churches, religious or ecclesiastical societies, and cemetery associations is hereby affirmed under the conditions and restrictions set forth in this chapter.

§ 5482. Eminent domain

The right to acquire land and property for cemetery purposes by condemnation proceedings by towns and cemetery associations is hereby granted under the conditions and restrictions set forth in this chapter.

§ 5483. Acquisition of land by town

When it is necessary to enlarge a public burial ground or to establish a new one, three or more freeholders of the town may apply in writing to the selectmen, setting forth such necessity with a description of the land necessary for the purpose. The selectmen shall thereupon proceed as in case of an application by three or more freeholders to lay out a highway.

§ 5484. Acquisition of gravel by town or association

(a) When public necessity requires that a burial ground be raised or portions thereof filled up with gravel or earth, and the town or association owning or managing the same cannot agree with the owner of such gravel or earth for its purchase, three or more owners of lots in such burial ground may apply in writing to the selectmen, setting forth such necessity. The selectmen shall thereupon proceed as in case of an application to them by three or more freeholders to lay out a highway. If in their opinion such necessity exists, they shall authorize, in writing, such town or association to take and remove such gravel or earth, use the same for the purposes aforesaid, and appraise the damage to the owner thereof.

(b) Before such town or association takes or removes gravel or earth, as provided in subsection (a) of this section, it shall pay or tender to the owner the amount of damages as appraised by the selectmen.

§ 5485. Appeal to superior court

When, in accordance with the provisions of this chapter, a person owning or having an interest in lands taken for a burial ground or gravel or earth for the same is dissatisfied with such taking or with the damages awarded to him by the selectmen in such proceedings, he may petition the superior court of the county in which such lands lie in the same manner as in case of an appeal as to the laying out of a highway by selectmen, and thereupon the same proceedings shall be had on such petition. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

5486. Repealed. 1965, No. 142.

§ 5487. Acquisition of land by cemetery associations generally

A cemetery association may acquire by gift, purchase at its fair cash market value, or devise, such lands as may be necessary for its cemetery purposes. If the consent of the selectmen and local board of health is first had and obtained in writing, such association may devote the same to such cemetery purposes. When it is necessary to acquire lands by condemnation proceedings, such proceedings shall be taken therefor as provided in sections 5488-5494 of this title.

§ 5488. Enlargement of cemeteries by associations-Petition to superior court to acquire land

When an incorporated cemetery association wishes to enlarge the limits of its burial ground, and votes to purchase additional land for burial purposes and the owner of such land refuses to convey the same to such cemetery association for a reasonable compensation, the trustees or president of such association, by a petition in writing, may apply to the superior court in the county in which such burial ground is located for the appointment of commissioners. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

§ 5489. Service of petition; appointment of commissioners

The petition with a citation shall be served on the owner of such land like a summons. On such application, the court may appoint three disinterested persons residing in some other town as commissioners.

§ 5490. Notice; hearing

The commissioners shall appoint a time and place for examination of the premises and appraisal of the damages. They shall give six days' notice thereof to the president or to one or more of the trustees of such association, and to the owner or occupant of such land either personally or by written notice left at the residence of such owner or occupant, and shall examine the premises and inquire into the public necessity and convenience of such enlargement.

§ 5491. Survey; damages

When the commissioners decide that public necessity and convenience require the enlargement of such burial grounds, and the amount needed, they shall cause the same to be surveyed, and shall ascertain what damages will be sustained by the owner of such land.

§ 5492. Report, filing

When the commissioners have completed their inquiries, they shall make report, stating their doings and decision, with their survey and appraisal of damages. Such report shall be returned to and filed in the office of the clerk of the court within thirty days after the completion of such inquiry.

§ 5493. Judgment on report; costs

The court may accept or reject the report, render judgment thereon, tax costs as it deems just, and issue execution for damages and costs.

§ 5494. Title to lands taken

Such cemetery association shall not take possession of such lands until the damages and costs are paid. When so paid, a valid title to the lands so taken shall vest in such association, and the same may be used for burial purposes.

§ 5531. Disposal of lot by will; descent; burial rights of husband and wife

(a) The owner of a cemetery lot may dispose of same by will to any one of his or her relatives who may survive him or her , or to any agency owning and

conducting the cemetery in which the lot is situated, in trust, for the use and benefit of any person or persons designated in such will. When no express disposition or other mention is made in a will of a cemetery lot owned by the testator at his or her decease, and wherein he or she or any member of his or her family is buried, the ownership of the lot shall not pass from his or her lawful heirs by any residuary or other general clause of the will, but shall descend to his or her heirs, as if he or she had died intestate.

(b) A wife shall be entitled to a right of interment for her own body in any burial lot or tomb of sufficient size and space to permit such interment, of which her husband was seized at any time during coverture, which shall be exempt from the operation of the laws regulating conveyance, descent and devise, but may be released by her in the same manner as dower. A husband shall have the same rights in the burial lot or tomb of his wife as a wife has in that of her husband. A husband or wife living separate from the other, and owning a burial lot or tomb in which the other but for this section would have no right of burial or interment, at least thirty days before the death of the other, may file with the agency conducting the cemetery in which such burial lot or tomb is located a written objection to the interment of the other and thereupon there shall be no right of interment of such husband or wife under this section.

Subsection (c) effective until February 1, 2011; see also subsection (c) set out below.

(c) The probate court shall have jurisdiction to determine all questions arising under the provisions of this section.

Subsection (c) effective February 1, 2011; see also subsection (c) set out above.

(c) The probate division of the superior court shall have jurisdiction to determine all questions arising under the provisions of this section.

(d) Nothing contained in this section shall be construed as a limitation of the right of any agency owning and conducting a cemetery, either by rule and regulation, or by deed or contract, to define or limit the persons or classes of persons having the right of burial upon any lot in the cemetery of such agency, or to prohibit or restrict the resale of any such lot or burial space. (Amended 2009, No. 154 (Adj. Sess.), § 149, eff. Feb. 1, 2011.)

§ 5532. Escheat of cemetery lots-Definition

For the purposes of sections 5532-5537 of this title the term "agency" shall mean town cemeteries, religious or ecclesiastical society cemeteries, and any person, firm, corporation or unincorporated association engaged in the business of a cemetery.

§ 5533. Escheat when owner's whereabouts unknown

When the whereabouts of a person or his heirs, having legal title or color of title to a wholly unoccupied burial lot in any cemetery has been unknown for twenty years, such lot shall escheat to the agency upon petition brought by the agency and hearing and judgment had thereon as provided in sections 5534-5537 of this title.

[Section 5534 effective until February 1, 2011; see also section 5534 effective February 1, 2011 set out below.]

§ 5534. Petition; hearing

The cemetery commissioners or other proper officers may file a petition in behalf of the agency with the probate court of the district where said agency is located for an inquisition in the premises. The probate court shall thereupon appoint a time and place of hearing and deciding on such petition, and cause a notice thereof to be published in some newspaper circulating in the vicinity where the cemetery is located.

[Section 5534 effective February 1, 2011; see also section 5534 effective until February 1, 2011 set out above]

§ 5534. Petition; hearing

The cemetery commissioners or other proper officers may file a petition in behalf of the agency with the probate division of the superior court of the district where said agency is located for an inquisition in the premises. The probate division of the superior court shall thereupon appoint a time and place of hearing and deciding on such petition, and cause a notice thereof to be published in some newspaper circulating in the vicinity where the cemetery is located. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5535. Notice; publication

Such notice shall recite the substance of the facts set forth in the petition, and the time and place at which persons claiming the burial lot may appear and be

heard before the court, and shall be published at least three weeks successively, the last of which publications shall be not less than six months before the time appointed by the court for making the inquisition.

§ 5536. Order

If sufficient cause is not shown to the contrary, at the time appointed for that purpose, the court shall order and decree that such lot shall escheat to the agency.

[Section 5537 effective until February 1, 2011; see also section 5537 effective February 1, 2011 set out below.]

§ 5537. Heirs

If an heir or other person entitled to such lot appears within 17 years from the date of such decree and files a claim with the probate court which made such decree, and establishes his or he rclaim to such lot, he or she shall have possession of the same, or if sold, the agency shall be accountable for the avails of such sale, without interest, to the persons entitled thereto, after deducting charges and costs incurred by the agency in connection therewith. A claim not made within 17 years shall be barred.

[Section 5537 effective February 1, 2011; see also section 5537 effective until February 1, 2011 set out above.]

§ 5537. Heirs

If an heir or other person entitled to such lot appears within 17 years from the date of such decree and files a claim with the probate division of the superior court which made such decree, and establishes his or her claim to such lot, he or she shall have possession of the same, or if sold, the agency shall be accountable for the avails of such sale, without interest, to the persons entitled thereto, after deducting charges and costs incurred by the agency in connection therewith. A claim not made within 17 years shall be barred. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5571. Location

A community mausoleum, as hereinbefore defined, other than structures containing crypts erected or controlled by churches and religious societies and used only as a repository for the remains of the clergy or dignitaries of such

churches or religious societies and every columbarium or other structure intended to hold or contain the bodies or remains of the dead, the spaces, crypts or niches of which are available to the public, shall be located only within the confines of an established cemetery, containing not less than five acres, and which shall have been in existence and operation for a period of at least five years immediately preceding the time of the erection thereof.

§ 5572. Plats

Before commencing the building, construction or erection of any such building, the agency constructing the same shall make and file a plat of such structure in accordance with the provisions of sections 5310 and 5311 of this title.

§ 5573. Construction requirements

A community mausoleum or columbarium, the crypts or niches of which are available to the public, shall be constructed and erected only with the consent and approval of the state board of health. Before commencing the building, construction or erection of any such structure, full detailed plans and specifications shall be presented to the state board of health. The approval of such plans and specifications shall be evidenced by a certificate in writing, signed by the state board of health. A community mausoleum, columbarium or any structure intended to hold or contain permanently the bodies of the dead, and to which the public shall have access, shall not be constructed or erected. A building not used for the permanent disposition of the human dead shall not be altered or changed for such use or used for such purposes, and an addition shall not be made to any existing community mausoleum or columbarium, unless constructed of such material and workmanship as will insure its durability

and permanence as well as the safety, convenience, comfort and health of the community in which it is located, as dictated and determined at the time by modern mausoleum construction and engineering science. (Amended 1959, No. 329 (Adj. Sess.), § 27, eff. March 1, 1961.)

§ 5574. Inspection

The state board of health shall have supervisory control over the construction of any such community mausoleum or columbarium. The state board of health shall require compliance in all respects with the approved plans and specifications. Such board shall appoint an inspector who shall be experienced in modern mausoleum construction and engineering science to supervise the erection and construction of such mausoleum and columbarium and to

determine the amount of his compensation. Such compensation shall be paid by the person, firm or corporation erecting such community mausoleum or columbarium. A departure from the original plans and specifications shall not be permitted, except upon approval of the state board of health, evidenced in like manner and form as the approval of the original plans and specifications. (Amended 1959, No. 329 (Adj. Sess.), § 27, eff. March 1, 1961.)

§ 5575. Use before completion prohibited

A community mausoleum, columbarium, crypt, niche or structure so erected as aforesaid shall not be used for the purpose of depositing therein the remains of any dead body until the same is finally completed, and the maintenance fund required by this chapter has been provided for in accordance with the provisions hereof.

[Section 5576 effective until February 1, 2011; see also section 5576 effective February 1, 2011 set out below.]

§ 5576. Sales before the completion of building; bond

A crypt or room in a community mausoleum, or niche in a columbarium, shall not be sold or offered for sale, before such structure is entirely completed, unless and until the agency selling such crypts or niches enters into an agreement whereby it agrees to refund to each and every purchaser of crypts, rooms, and niches all sums of money paid by each, together with legal interest thereon, in the event it fails to complete such mausoleum or columbarium within a reasonable time thereafter, which agreement shall be entered into with a bank or trust company as trustee for the purchasers of crypts, rooms and niches. The agency shall also deposit with the trustee a good and sufficient bond or other security which shall guarantee the faithful performance of the agreement. The selection of the bank or trust company, the trust agreement, and the bond or other security herein provided for shall be submitted to and be subject to the approval of the probate court of the district wherein such com

munity mausoleum or columbarium is located.

[Section 5576 effective February 1, 2011; see also section 5576 effective until February 1, 2011 set out above.]

§ 5576. Sales before the completion of building; bond

A crypt or room in a community mausoleum, or niche in a columbarium, shall not be sold or offered for sale, before such structure is entirely completed, unless and until the agency selling such crypts or niches enters into an agreement whereby it agrees to refund to each and every purchaser of crypts, rooms, and niches all sums of money paid by each, together with legal interest thereon, in the event it fails to complete such mausoleum or columbarium within a reasonable time thereafter, which agreement shall be entered into with a bank or trust company as trustee for the purchasers of crypts, rooms and niches. The agency shall also deposit with the trustee a good and sufficient bond or other security which shall guarantee the faithful performance of the agreement. The selection of the bank or trust company, the trust agreement, and the bond or other security herein provided for shall be submitted to and be subject to the approval of the probate division of the superior court of the

district wherein such community mausoleum or columbarium is located. (Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.)

§ 5577. Mausoleum becoming untenable

If, in the opinion of the state board of health, a mausoleum, vault, crypt or structure containing one or more deceased human bodies becomes a menace to public health, and the owner or owners thereof fail to remedy or remove the same to the satisfaction of the state board of health, a court of competent jurisdiction may order the person, firm or corporation owning such structure to remove the body or bodies for interment in some suitable cemetery at the expense of the person, firm or corporation owning such mausoleum, vault or crypt. When such person, firm or corporation can not be found in the county where such mausoleum, vault or crypt is located, then such removal and interment shall be at the expense of the cemetery or cemetery association, city or town where such mausoleum, vault or crypt is situated. (Amended 1959, No. 329 (Adj. Sess.), § 27, eff. March 1, 1961.)

§ 5578. Perpetual care funds

There shall be established and maintained a fund for the perpetual care and maintenance of such community mausoleum and columbarium, by applying in the case of a community mausoleum not less than the sum of $100.00 from the proceeds received from the sale of each crypt and ten percent of the proceeds received from the sale of each room; and in case of niches in a community mausoleum or columbarium, used as a repository for the remains of deceased persons after cremation, a sum which shall be equivalent to ten percent of the sale price of each niche. In event sales of crypts or rooms in a community

mausoleum, or sales of niches in a community mausoleum or columbarium be made upon partial payments, there shall be set apart and applied to such fund from each such payment such percentage thereof as the amount of the partial payment bears to the total purchase price of such crypt, room or niche.

§ 5579. Penalties

A person who violates a provision of sections 5571-5578 of this title shall be fined not less than $100.00 nor more than $500.00 or be imprisoned in the state correctional facility not less than ten days nor more than three months, or both, for each offense. (Amended 1967, No. 345 (Adj. Sess.), § 30, eff. April 1, 1969.)