ORS § 97.130

Current through 2024 Regular Session legislation effective March 27, 2024

Section 97.130 - Right to control disposition of remains; delegation

(1) Any individual of sound mind who is 18 years of age or older, by completion of a written signed instrument or by preparing or prearranging with any funeral service practitioner licensed under ORS chapter 692, may direct any lawful manner of disposition of the individual's remains. Except as provided under subsection (7) of this section, disposition directions or disposition prearrangements that are prepaid or that are filed with a funeral service practitioner licensed under ORS chapter 692 are not subject to cancellation or substantial revision.

(2) A person within the first applicable listed class among the following listed classes that is available at the time of death, in the absence of actual notice of a contrary direction by the decedent as described under subsection (1) of this section or actual notice of opposition by completion of a written instrument by a member of the same class or a member of a prior class, may direct any lawful manner of disposition of a decedent's remains by completion of a written instrument:

(a) The spouse of the decedent.

(b) A son or daughter of the decedent 18 years of age or older.

(c) Either parent of the decedent.

(d) A brother or sister of the decedent 18 years of age or older.

(e) A guardian of the decedent at the time of death.

(f) A person in the next degree of kindred to the decedent.

(g) The personal representative of the estate of the decedent.

(h) The person nominated as the personal representative of the decedent in the decedent's last will.

(i) A public health officer.

(3)

(a) The decedent or any person authorized in subsection (2) of this section to direct the manner of disposition of the decedent's remains may delegate such authority to any person 18 years of age or older.

(b) Delegation of the authority to direct the manner of disposition of remains must be made by completion of:

(A) The written instrument described in subsection (8) of this section; or

(B) The form described in subsection (4) of this section.

(c) The person to whom the authority is delegated has the same authority under subsection (2) of this section as the person delegating the authority.

(4)

(a) A Record of Emergency Data, DD Form 93, or a successor form recognized by the Armed Forces of the United States, as that term is defined in ORS 366.931, completed by a member of the Armed Forces of the United States serves as a valid written instrument for purposes of subsection (3) of this section.

(b) In accordance with United States Department of Defense Instruction 1300.18, a member of the Armed Forces of the United States shall complete the form described in this subsection and shall verify the accuracy of the form at least annually.

(c) The form described in this subsection, regardless of the date on which the form was signed, supersedes any other written instrument that directs the disposition of the decedent's remains.

(5) Except as provided in subsection (4)(c) of this section, if a decedent or the decedent's designee issues more than one authorization or direction for the disposal of the decedent's remains, only the most recent authorization or direction is binding.

(6) A donation of anatomical gifts under ORS 97.951 to 97.982 takes priority over directions for the disposition of a decedent's remains under this section only if the person making the donation is of a priority under subsection (1) or (2) of this section the same as or higher than the priority of the person directing the disposition of the remains.

(7) If the decedent directs a disposition under subsection (1) of this section and those financially responsible for the disposition are without sufficient funds to pay for such disposition or the estate of the decedent has insufficient funds to pay for the disposition, or if the direction is unlawful, the direction is void and disposition shall be in accordance with the direction provided by the person given priority in subsection (2) of this section and who agrees to be financially responsible.

(8) The signature of the individual delegating the authority to direct the manner of disposition is required for the completion of the written instrument required in subsection (3)(b)(A) of this section. The following form or a form substantially similar shall be used by all individuals:

______________________________________________________________________________

APPOINTMENT OF PERSON

TO MAKE DECISIONS

CONCERNING DISPOSITION

OF REMAINS

I, __________________, appoint __________________, whose address is _______________ and whose telephone number is (___) _________, as the person to make all decisions regarding the disposition of my remains upon my death for my burial, cremation or alternative disposition. In the event ____________ is unable to act, I appoint ____________, whose address is __________________ and whose telephone number is (___) _________, as my alternate person to make all decisions regarding the disposition of my remains upon my death for my burial, cremation or alternative disposition.

It is my intent that this Appointment of Person to Make Decisions Concerning Disposition of Remains act as and be accepted as the written authorization presently required by ORS 97.130 (or its corresponding future provisions) or any other provision of Oregon Law, authorizing me to name a person to have authority to dispose of my remains.

DATED this ___ day of ______, _____.

__________________

(Signature)

NOTARY OR WITNESSES

(Have this document notarized by a notary public OR have 2 competent adult witnesses complete the Declaration of Witnesses.)

NOTARIAL CERTIFICATE:

State of ____________

County of ____________

Signed or attested before me on _____,

2___, by _______________.

________________________

Notary Public - State of Oregon

OR

DECLARATION OF WITNESSES

We declare that ____________ is personally known to us, that he/she signed this Appointment of Person to Make Decisions Concerning Disposition of Remains in our presence, that he/she appeared to be of sound mind and not acting under duress, fraud or undue influence, and that neither of us is the person so appointed by this document.

Witnessed By:

_______________ Date: _____

Witnessed By:

_______________ Date: _____

______________________________________________________________________________

(9) Subject to the provisions of ORS 97.951 to 97.982, if disposition of the remains of a decedent has not been directed and authorized under this section within 10 days after the date of the death of the decedent, a public health officer may direct and authorize disposition of the remains.

(10) Notwithstanding subsection (2) of this section, a person arrested for or charged with criminal homicide by reason of the death of the decedent may not direct the disposition of the decedent's remains. The disposition of the decedent's remains shall be made in accordance with the directions of an eligible person within the first applicable class established under subsection (2) of this section.

(11) Notwithstanding subsections (2) and (3) of this section, if the person who has the authority to direct the manner of disposition of cremated or reduced remains pursuant to subsection (1) or (2) of this section transfers any portion of the cremated or reduced remains to another person, the recipient of the cremated or reduced remains has the authority to direct the manner of disposition of the cremated or reduced remains in the recipient's possession.

ORS 97.130

Amended by 2023 Ch. 11, § 1, eff. 1/1/2024.

Amended by 2021 Ch. 296, § 3, eff. 1/1/2022, op. 7/1/2022.

Amended by 2019 Ch. 384, § 12a, eff. 9/29/2019, op. 6/30/2021.

Amended by 1969 c.175 §10; 1969 c.591 §279; 1973 c.823 §97; 1995 c.717 §10; 1997 c.472 §1; 1999 c.201 §5; 2007 c. 373, § 1; 2007 c. 681, § 24; 2011 c. 154, § 1; 2011 c. 164, § 1