Usa Oregon

USA Statutes : oregon
Title : TITLE 09 MORTGAGES AND LIENS
Chapter : Chapter 97 Rights and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts
As used in ORS 97.010 to 97.040, 97.110 to
97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990:

(1) “Human remains” or “remains” means the body of a deceased
person in any stage of decomposition or after cremation.

(2) “Cemetery” means any place dedicated to and used, or intended
to be used, for the permanent interment of human remains.

(3) “Burial park” means a tract of land for the burial of human
remains in the ground used, or intended to be used, and dedicated for
cemetery purposes.

(4) “Mausoleum” means a structure for the entombment of human
remains in crypts or vaults in a place used, or intended to be used, and
dedicated for cemetery purposes.

(5) “Crematory” means a structure containing a retort for the
reduction of bodies of deceased persons to cremated remains.

(6) “Columbarium” means a structure or room containing niches for
permanent inurnment of cremated remains in a place used, or intended to
be used, and dedicated for cemetery purposes.

(7) “Interment” means the disposition of human remains by
cremation, inurnment, entombment or burial.

(8) “Cremation” means the reduction of a body of a deceased person
to cremated remains in a crematory.

(9) “Inurnment” means placing cremated remains in an urn and
depositing it in a niche.

(10) “Entombment” means the placement of human remains in a crypt
or vault.

(11) “Burial” means the placement of human remains in a grave.

(12) “Grave” means a space of ground in a burial park used, or
intended to be used, for burial of the remains of one person.

(13) “Crypt” or “vault” means a space in a mausoleum of sufficient
size used, or intended to be used, to entomb uncremated human remains.

(14) “Niche” is a recess in a columbarium used, or intended to be
used, for the interment of the cremated remains of one or more persons.

(15) “Cemetery authority” includes cemetery corporation,
association, corporation sole or other person or persons owning or
controlling cemetery lands or property.

(16) “Cemetery association” means any corporation or association
authorized by its articles to conduct any or all the businesses of a
cemetery, but does not include a corporation sole or a charitable,
eleemosynary association or corporation.

(17) “Cemetery business,” “cemetery businesses” and “cemetery
purposes” are used interchangeably and mean any business and purpose
requisite or incident to, or necessary for establishing, maintaining,
operating, improving or conducting a cemetery, interring human remains,
and the care, preservation and embellishment of cemetery property.

(18) “Directors” or “governing body” means the board of directors,
board of trustees, or other governing body of a cemetery association.

(19) “Lot,” “plot” or “burial space” means space in a cemetery
owned by one or more individuals, an association or fraternal or other
organization and used, or intended to be used, for the permanent
interment therein of the remains of one or more deceased persons. Such
terms include and apply with like effect to one, or more than one,
adjoining grave, crypt, vault or niche.

(20) The term “plot owner” or “owner” means any person in whose
name a burial plot stands as owner of the right of sepulture therein in
the office of the cemetery authority, or who holds from such cemetery
authority a conveyance of the right of sepulture or a certificate of
ownership of the right of sepulture in a particular lot, plot or space.

(21) “Endowment care” means the general care and maintenance of
developed portions of a cemetery and memorials erected thereon financed
from the income of a trust fund established and maintained pursuant to
the provisions of ORS 97.810 to 97.865. Endowment care cemeteries owned
by a city or a county may supplement their general care and maintenance
trust funds from general revenues.

(22) “Special care” is any care in excess of endowed care in
accordance with the specific directions of any donor of funds for such
purposes. [Amended by 1955 c.545 §1; 1965 c.396 §1](1) The provisions of ORS 97.030, 97.120,
97.310 to 97.350, 97.360 (1), 97.510 and 97.550 relating to private
cemeteries do not apply to:

(a) Any religious or eleemosynary corporation, church, religious
society or denomination, corporation sole administering temporalities of
any church or religious society or denomination or any cemetery that such
entity organizes, controls or operates.

(b) Any county or city cemetery.

(2) The provisions of ORS 97.810 to 97.865 relating to private
cemeteries do not apply to:

(a) Any religious or eleemosynary corporation, church, religious
society or denomination, corporation sole administering temporalities of
any church or religious society or denomination or any cemetery that such
entity organizes, controls or operates, unless the cemetery authority for
an entity described in this paragraph elects to subject itself to ORS
97.810 to 97.865.

(b) Any county or city cemetery, unless the county or city elects
to subject itself to ORS 97.810 to 97.865. [Amended by 1955 c.473 §1;
1997 c.167 §1] No cemetery authority or person
having a right of sepulture or any other right under ORS 97.010 to
97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and 97.990
acquires any vested right by virtue thereof which the Legislative
Assembly may not subsequently amend, alter or repeal.Except for ORS 97.730, 97.010
to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920 and
97.990 do not apply to private family burial grounds where lots are not
offered for sale.AUTOPSIES (1) Except as provided
in subsection (2) of this section, whenever a person dies and no autopsy
is ordered by a medical examiner or district attorney pursuant to ORS
146.117, an autopsy may not be conducted without the prior written
consent of a person within the first applicable class of the following
listed classes:

(a) The spouse of the decedent;

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

(c) Either parent of the decedent;

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

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

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

(g) The personal representative of the estate of the decedent; or

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

(2)(a) Consent required under subsection (1) of this section must
be granted on a written autopsy consent form developed pursuant to
subsection (3) of this section.

(b) If the person authorized by subsection (1) of this section to
grant written consent to conduct an autopsy is not available to grant
written consent in person, the authorized person may grant consent by
completing the required consent form and returning the signed form, by
facsimile or other electronic transmission, to the party requesting
permission.

(3) The Public Health Officer, in consultation with the State
Medical Examiner, shall develop and make available a standardized written
autopsy consent form that:

(a) Grants the person specified in subsection (1) of this section
the authority to:

(A) Grant permission to conduct an unlimited autopsy;

(B) Grant permission to conduct a limited autopsy and to specify
what limitations are imposed upon the autopsy; or

(C) Refuse permission to conduct an autopsy.

(b) Provides a section for the person specified in subsection (1)
of this section to submit specific instructions with respect to tests to
be performed during the autopsy and to the disposition of organs and
tissue removed for purposes of a limited autopsy.

(c) Provides that the consent signature be accompanied by the
signature of a witness. [2003 c.416 §1]Note: 97.082 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 97 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.DISPOSITION OF HUMAN BODIES No person shall attach,
detain or claim to detain any human remains for any debt or demand or
upon any pretended lien or charge. (1) Any
individual of sound mind who is 18 years of age or older, by completion
of a written signed instrument or by preparing or prearranging with any
funeral service practitioner licensed under ORS chapter 692, may direct
any lawful manner of disposition of the individual’s remains. Except as
provided under subsection (6) of this section, disposition directions or
disposition prearrangements that are prepaid or that are filed with a
funeral service practitioner licensed under ORS chapter 692 shall not be
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 or, 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) 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. Such
delegation shall be made by completion of the written instrument
described in subsection (7) of this section. The person to whom the
authority is delegated shall have the same authority under subsection (2)
of this section as the person delegating the authority.

(4) If a decedent or the decedent’s designee issues more than one
authorization or direction for the disposal of the decedent’s remains,
only the most recent authorization or direction shall be binding.

(5) A donation of anatomical gifts under ORS 97.952 or 97.954 shall
take priority over directions for the disposition of a decedent’s remains
under this section only if the person making the donation is of a
priority under subsection (1) or (2) of this section the same as or
higher than the priority of the person directing the disposition of the
remains.

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

(7) The signature of the individual shall be required for the
completion of the written instrument required in subsection (3) of this
section. The following form or a form substantially similar shall be used
by all individuals:

___________________________________________________________________________
___APPOINTMENT OF PERSON

TO MAKE DECISIONS

CONCERNING DISPOSITION

OF REMAINS

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

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

DATED this ___ day of______,_____.__________________

 (Signature)DECLARATION OF WITNESSES

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

Witnessed By:

_______________Date: _____

Witnessed By:

_______________Date: _____

___________________________________________________________________________
___ (8) Subject to the provisions of ORS 97.950 to 97.964, 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. [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]No cemetery authority, crematory operator
or licensed funeral service practitioner interring or cremating remains
pursuant to a written instrument signed by the decedent or a person
described in ORS 97.130 (2) shall be liable for any failure to conform to
the priority of control of remains provided in ORS 97.130, except when it
shall have received two or more conflicting written instruments prior to
interment or cremation of said remains. [1957 c.423 §3 (97.141 and 97.145
enacted in lieu of 97.140); 1997 c.472 §2](1) If the cemetery
authority, crematory operator or licensed funeral service practitioner
has been authorized to cremate remains of a decedent pursuant to ORS
97.130, the authorization shall also contain further instructions to the
cemetery authority, crematory operator or licensed funeral service
practitioner as to the final disposition of the cremated remains. If the
cremated remains are left in the possession of the cemetery authority,
crematory operator or licensed funeral service practitioner and no such
instructions are given to the cemetery authority, crematory operator or
licensed funeral service practitioner within 180 days after the date of
cremation, the cemetery authority, crematory operator or licensed funeral
service practitioner shall make a reasonable effort to notify the person,
pursuant to ORS 97.130, who has the right to control the disposition of
the cremated remains. The notice shall state that the cemetery authority,
crematory operator or licensed funeral service practitioner intends to
dispose of the cremated remains unless such person gives instructions to
the contrary to the cemetery authority, crematory operator or licensed
funeral service practitioner within 30 days of the date of such notice
from the cemetery authority, crematory operator or licensed funeral
service practitioner. Reasonable effort to notify shall include, but not
be limited to, notice, personally or by certified mail, return receipt
requested, to the person who has the right to control the disposition of
the cremated remains at the address of such person in the records of the
cemetery authority, crematory operator or licensed funeral service
practitioner. If disposition of the cremated remains has not been
directed and authorized by such person within said 30-day period, the
cemetery authority, crematory operator or licensed funeral service
practitioner may dispose of the cremated remains as is legally
practicable.

(2) No cemetery authority, crematory operator or licensed funeral
service practitioner shall be liable, and no action shall lie against any
cemetery authority, crematory operator or licensed funeral service
practitioner relating to any cremated remains that have been left in its
possession for a period of 180 days unless the cemetery authority,
crematory operator or licensed funeral service practitioner has failed to
make such reasonable effort to notify the person described in subsection
(1) of this section or unless a written contract has been entered into
with the cemetery authority, crematory operator or licensed funeral
service practitioner for their care or unless permanent interment has
been made. If the cemetery authority, crematory operator or licensed
funeral service practitioner has complied with this section, then the
cemetery authority, crematory operator or licensed funeral service
practitioner may dispose of the remains as is legally practicable.
[Amended by 1989 c.669 §1; 1997 c.472 §3]
Notwithstanding section 14, chapter 653, Oregon Laws 1991, or ORS
469.525, diagnostic or therapeutic radioisotopes remaining inside the
uncremated body of a deceased person may be buried, entombed or otherwise
disposed of in a cemetery or other lawful place for the burial,
entombment or other disposal of the uncremated body of the deceased
person even though the body contains low-level radioactive waste as
defined under 42 U.S.C. 2021(b) as of January 1, 1995, by-product
material as defined under 42 U.S.C. 2014 as of January 1, 1995, or
special nuclear material exempted by the United States Nuclear Regulatory
Commission as of January 1, 1995, under authority of 42 U.S.C. 2077(d).
[1995 c.252 §1]Note: 97.153 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 97 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) No hospital or sanitarium, or the
employees, agents or representatives thereof, shall send or cause to be
sent to any funeral service practitioner, undertaker, mortician or
embalmer the remains of any decedent without having complied with this
section before final disposition of the remains.

(2) If the admitting record contains the name of a relative, friend
or other person identified by the decedent in the admitting record, or if
the hospital or sanitarium is aware of the name of any other person
chargeable with the funeral expenses of the decedent, the hospital or the
sanitarium must notify the relative, friend or other person personally or
by certified mail, return receipt requested.

(3) If a hospital or sanitarium is unable to give actual notice to
a relative, friend or other person under the provisions of subsection (2)
of this section, the hospital or sanitarium must publish a notice of
death at least one time in a newspaper of general circulation in the
county where the death occurred, or, if there is no such newspaper, in a
newspaper most likely to give notice of the death to relatives and
friends of the decedent. The notice must contain the name of the decedent
and the address and phone number for the hospital or sanitarium.

(4) If the remains of the decedent are not claimed within 10 days
after the giving of notice under subsection (2) of this section, or
within 10 days after publication under subsection (3) of this section if
publication is made under subsection (3) of this section, the hospital or
sanitarium may arrange for the disposal of the remains of the decedent
without further notice in the manner specified by ORS 97.170 to 97.200.

(5) Nothing in this section limits or governs the authority of any
administrator or executor, trustee or other person having a fiduciary
relationship with the deceased or to the state, counties, cities or towns
in the disposition of the remains of a deceased person. [Amended by 1993
c.92 §1](1) Except as set forth in subsection (4)
of this section, any licensed funeral service practitioner having charge
of the body of a deceased person thought to be an unclaimed indigent
shall use all reasonable diligence promptly to notify the relatives of
the deceased person or any other person having an interest in the
deceased person and shall arrange with any relative who claims the body
or with any friend of the deceased person who will pay the expenses to
make disposition of the body. If no one claims the body within five days
after death, or if those notified acquiesce, the funeral service
practitioner shall notify, by telephone, the Demonstrator of Anatomy of
the Oregon Health and Science University. The Demonstrator of Anatomy,
who shall be appointed by the Oregon Health and Science University Board
of Directors from the staff of the Oregon Health and Science University,
shall immediately inform the funeral service practitioner whether the
body is deemed to be in fit condition and is desired for medical
instruction or the advancement of medical science. If the body is desired
for these purposes, the funeral service practitioner shall arrange for a
licensed embalmer to make such preparation as is necessary and shall,
within 72 hours, deliver it to the Oregon Health and Science University,
or any other school or college within the State of Oregon qualifying
applicants for examination in the fundamental sciences as required and
specified in ORS 683.010 to 683.335 and ORS chapters 676 to 681 and 684
to 686, as the Demonstrator of Anatomy directs. The expenses of
embalming, transportation of the body to such school or college, filing
fees and other related expenses shall be paid from the funds appropriated
specifically for the purposes of this section. Such expenses shall not
exceed the normal rates charged for such services to the general public.

(2) If the Demonstrator of Anatomy does not require any such body
for instruction or research, it may be assigned, on request, to any other
properly authorized institution within this state or to any qualified
physician for instruction or research.

(3) When the body of a deceased person is deemed in unfit condition
by the Demonstrator of Anatomy and disposition does not take place as set
forth in subsections (1) and (2) of this section, and no relatives,
friends or interested persons claim the body after notification is
attempted, then the funeral service practitioner may commence to cremate
or bury the body without the consent of persons listed in ORS 97.130 and
is furthermore indemnified from any liability arising from having made
such disposition. The method of disposition must be in the least costly
manner that complies with law, and that does not conflict with known
wishes of the deceased. Reimbursement for costs of disposition shall be
made as set forth in subsection (5) of this section.

(4) When the deceased person is a child over whom the Department of
Human Services held guardianship at the time of death, and no relatives,
friends or interested persons claim the body after notification is
attempted as set forth in subsection (1) of this section, the department
may at its discretion notify the Demonstrator of Anatomy and proceed as
set forth in subsection (1) of this section, or may authorize burial or
cremation of the body. Expenses related to burial or cremation authorized
by the department under this subsection shall be borne by the department.

(5) Upon receipt of an itemized statement of expenses, the
department shall reimburse the funeral service practitioner within 30
days the reasonable costs for disposition of any unclaimed deceased
person who has insufficient assets and for whom no one takes
responsibility. The method of disposition must be in the least costly
manner and shall not exceed $450 per disposition. [Amended by 1973 c.842
§1; 1985 c.704 §1; 1993 c.345 §4; 1995 c.162 §62] Upon receipt of
any body by a school or college pursuant to ORS 97.170, it shall be
properly embalmed for anatomical purposes, but shall be retained 30 days
before being used or dismembered. If it is claimed by any relative or
friend within that period, it shall be delivered to the claimant. Unless required by a
medical examiner to determine the cause of death or specifically
authorized and ordered by the superintendent of the hospital or
institution in which any person coming under the provisions of ORS 97.170
may die, no such body as is mentioned in ORS 97.170 is subject to
post-mortem examination, except by consent of the Demonstrator of
Anatomy. [Amended by 1959 c.629 §43; 1965 c.221 §13; 1977 c.582 §1] The
remains of any corpse used for the purposes authorized by ORS 97.170
shall, upon completion of such use, be decently buried or cremated and
the ashes, in case of cremation, shall be delivered to any relative who
claims them, after establishing relationship. All expenses incident to
burial and cremation and the delivery of ashes to any relative shall be
borne by the educational institution which used the body for educational
purposes.
The body of any person who died of smallpox, diphtheria, scarlet fever or
other disease that the Department of Human Services, by rule, may
prescribe, shall not be subject to the provisions of ORS 97.170 to
97.200. [Amended by 1977 c.582 §2] (1) The remains of a deceased person interred
in a plot in a cemetery may be removed therefrom with the consent of the
cemetery authority and written consent of the person who has the right to
control the disposition of the remains of the deceased person. If the
consent of any such person or of the cemetery authority cannot be
obtained, permission by the county court or the board of county
commissioners of the county where the cemetery is situated is sufficient.
Notice of application to the court for such permission must be given at
least 60 days prior thereto, personally or by mail, to the cemetery
authority, to the person not consenting and to every other person or
authority on whom service of notice is required by the county court or
the board of county commissioners.

(2) If the payment for the purchase of an interment space becomes
past due and so remains for a period of 90 days, this section does not
apply to or prohibit the removal of any remains from one plot to another
in the same cemetery or the removal of remains by the cemetery authority
from a plot to some other suitable place.

(3) This section does not apply to the disinterment of remains upon
order of court or if ordered under the provisions of ORS 146.045 (3)(e).
[Amended by 1977 c.582 §3]DEDICATION TO CEMETERY PURPOSES; PLATTINGS(1) Every cemetery authority, from time to
time as its property may require for cemetery purposes, shall:

(a) In case of land, survey and subdivide it into sections, blocks,
plots, avenues, walks or other subdivisions and make a good and
substantial map or plat showing them, with descriptive names or numbers.
In all instances this shall be done in compliance with ORS 92.010 to
92.190 except that ORS 92.090 (2)(a) and (b) shall not be applicable to
streets, alleys, ways and footpaths located wholly within a cemetery.

(b) In case of a mausoleum or columbarium, make a good substantial
map or plat on which are delineated the sections, halls, rooms,
corridors, elevation and other divisions, with descriptive names or
numbers. In all instances this shall be done in compliance with the state
building code.

(2) Every lot in a cemetery subdivision shall include an access
easement across the lot for the benefit of adjacent lots. Designated
areas between lots for the purpose of providing access to separate lots
are not required to approve a subdivision under this section. A cemetery
authority must disclose to a potential purchaser of a lot in the cemetery
the existence of the access easement across the lot. [Amended by 1965
c.396 §2; 1979 c.57 §1; 1985 c.582 §3; 1999 c.381 §1]In case of a cemetery lot, the cemetery authority
shall file the map or plat in the office of the recording officer of the
county in which all or a portion of the property is situated, and it
forthwith shall file for record in that officer’s office a written
declaration dedicating the property delineated on the plat or map
exclusively to cemetery purposes. Upon the filing of the map or
plat and of the declaration for record, the dedication is complete for
all purposes, and thereafter the property shall be held, occupied and
used exclusively for cemetery purposes. After property is dedicated to
cemetery purposes pursuant to ORS 97.310 to 97.330 and 97.360 (1),
neither the dedication nor the title of a plot owner shall be affected by
the dissolution of the cemetery authority by nonuser on its part, by
alienation of the property, by any encumbrances, by sale under execution
or otherwise, except as provided in ORS 97.310 to 97.350, 97.360 (2),
97.440, 97.510 to 97.650, 97.710, 97.720 and 97.810 to 97.865. Dedication to
cemetery purposes pursuant to ORS 97.010 to 97.040, 97.110 to 97.450,
97.510 to 97.730, 97.810 to 97.920 and 97.990 is not invalid as violating
any laws against perpetuities or the suspension of the power of
alienation of title to or use of property, and is deemed to be in respect
for the dead, and is a provision for the interment of human remains and
is a duty to, and for the benefit of, the general public.(1) Any
part or subdivision of the property so mapped and platted may, by order
of the directors and consent of the lot owners, be resurveyed and altered
in shape and size and an amended map or plat filed, so long as such
change does not disturb any interred remains.

(2) Whenever a majority of the lots as platted or laid out in any
cemetery established before March 3, 1927, or any part thereof, has been
sold without the owners or persons in control of the cemetery having made
provision for the establishment of an adequate endowment fund for the
perpetual maintenance, upkeep and beautification of the cemetery and of
the lots therein, the avenues, streets, alleys, walks, driveways and
parks therein may be vacated or altered and replatted into lots which may
be sold for burial purposes in the manner provided in this subsection and
in ORS 97.370 to 97.430. Application for the vacation or alteration of
any avenues, streets, alleys, walks, driveways or parks, and for the
replatting of the same, or any portion thereof, for cemetery lots in any
such cemetery shall be made to the county court or board of county
commissioners in the county where the cemetery is situated. The
application may be by the owners or persons in control of the cemetery or
by a group of 20 or more persons owning lots or having relatives buried
therein. The application shall be verified and shall specify the lots
owned by each petitioner in which are buried bodies of relatives in which
the petitioner is interested and shall state the reason for the proposed
change and what provisions have theretofore been made for the perpetual
upkeep, maintenance and beautification of the cemetery, and there shall
be presented therewith a plat of the cemetery, together with the proposed
replat, which shall have clearly indicated thereon the proposed changes. When any application
mentioned in ORS 97.360 (2) is filed, the court or board shall fix the
time for the hearing of it and notice of the time thereof shall be given
by publication in a paper of general circulation published in the town in
which the cemetery is situated or in the town to which it is nearest once
a week for a period of six successive weeks prior to the date of the
hearing and a copy of such notice shall be posted for a like period at
three public and conspicuous places in the cemetery. Such notice shall be
addressed to all persons owning lots or having an interest in the
cemetery, but need not name them, and shall set forth in a general way
the proposed changes, the reason stated in the application for making it,
the time when the hearing of the application will be had, and shall state
that a plat showing the proposed changes is on file with the county clerk
of the county in which the cemetery is situated. At the hearing mentioned
in ORS 97.370 the court or board shall consider and hear any evidence
introduced in favor of the proposed change and all objections thereto
and, after a full hearing thereon, may allow the proposed change and
replat in whole or in part. If the proposed change is allowed, either in
whole or in part, an order allowing it shall be made providing that title
to any new lot created by the alteration or vacation of any avenues,
streets, alleys, driveways, walks or parks, or any part thereof, shall be
vested in the owner of the fee of the part of the cemetery sought to be
vacated in trust for burial purposes, or vested in any association which
may be formed for the purpose of taking over the cemetery and operating
and maintaining it in accordance with the provisions of ORS 97.400.
[Amended by 1985 c.582 §4; 1999 c.381 §2] If any damages are
claimed by the owner of any lot in any such cemetery as is mentioned in
ORS 97.360 (2), which lot is adjacent to the avenues, streets, alleys,
driveways or parks vacated as provided in ORS 97.380, they shall be
ascertained by the county court or board of county commissioners and
offset against the benefits accruing to the lot owner on account of the
upkeep and beautification of the cemetery in the manner provided in ORS
97.400. Any person feeling aggrieved at the amount of damages so assessed
by the board may appeal from such order of allowance to the circuit court
of the county in which the cemetery is situated in the same manner as is
provided by statute for appeal from the assessment of damages by the
exercise of eminent domain in locating a county road and on such appeal
the jury, in assessing the amount of damages to be allowed to the
appellant, shall offset against such damages the benefits accruing to the
appellant as in this section above provided.Any owner or
association accepting the trust of handling and disposing of lots newly
created pursuant to ORS 97.380 shall by the acceptance thereof agree to
dispose of the lots only for burial purposes and at a price not less than
that fixed by the county court or board of county commissioners. The net
funds derived from the sale of the lots remaining after the payment of
the reasonable expenses incident to the vacation and of the sale shall be
placed in an irreducible and perpetual fund and the interest therefrom
shall be used for the perpetual upkeep and beautification of the cemetery
and the lots therein situated. The fund shall be placed in some reliable
trust company specified by the court or board, which trust company shall
invest the same and pay the income therefrom to the owner or association
charged with the disposal of such lots. Any owner or association taking
over the sale of the lots shall comply with such provisions as the court
or board may require of it in the upkeep, beautification and care of the
cemetery with the income thereof, and if such owner or association for
any reason fails to perform such duties, the court or board may, on its
own motion, from time to time, appoint some other association or
individual to perform them. The restrictions of this section shall not
apply to the sale of lots obtained by replatting cemeteries owned and
maintained by any county. The
vacation of an avenue, street, alley, driveway, walk or park adjacent to
a cemetery lot shall vest in the owner of such lot no interest in the
vacated portion thereof; but the adjacent owner shall, for 30 days after
the date of such an order of vacation, have the right to purchase any new
lot adjacent to the lot of the owner at the price fixed by the court or
board at which the lots are to be sold, and if there is more than one
adjacent lot owner, the new lot shall be sold to the one offering the
highest price therefor. Any owner of such cemetery as
is mentioned in ORS 97.360 (2), or of any lot therein, or any relative or
heir of any deceased person buried in such cemetery who fails to appear
and file written objection to any proposed replat, alteration or
vacation, authorized by ORS 97.360 (2), shall be deemed to have consented
to the proposed change and shall be forever barred from claiming any
right to use and have open for traffic or passageway any streets, alleys,
driveways or parks vacated, or any right, title or interest therein,
except as provided in ORS 97.360 (2) and 97.370 to 97.410.The enactment of ORS 97.360 (2) and 97.370 to 97.430 is hereby
declared to be a necessary exercise of the police powers of the state in
order to preserve and keep existing cemeteries as resting places for the
dead and to preserve old and historic cemeteries from becoming unkempt
and places of reproach and desolation in the communities in which they
are located. The taking of avenues, streets, alleys, walks, driveways and
parks for the purpose and by the method specified in ORS 97.360 (2) and
97.370 to 97.420 is hereby declared an exercise of the right of eminent
domain in behalf of the public health, safety, comfort, pleasure and
historic instruction. (1) Property dedicated to cemetery
purposes shall be held and used exclusively for cemetery purposes until
the dedication is removed from all or any part of it by an order and
decree of the county court or board of county commissioners of the county
in which the property is situated in a proceeding brought by the cemetery
authority for that purpose and upon notice of hearing and proof
satisfactory to the court that:

(a) The portion of the property from which dedication is sought to
be removed is not being used for interment of human remains; or

(b) The Oregon Commission on Historic Cemeteries has received
notice of and had the opportunity to comment on the removal from the
dedicated property of all human remains and markers dated prior to
February 14, 1909.

(2) The notice of hearing required by this section must:

(a) Be given by publication once a week for at least four
consecutive weeks in a newspaper of general circulation in the county
where the cemetery is located and by publication twice in a newspaper
with statewide circulation;

(b) Be posted in three conspicuous places on that portion of the
property from which the dedication is to be removed;

(c) Describe the portion of the cemetery property sought to be
removed from dedication;

(d) State that all remains and markers have been removed or that no
interments have been made in the portion of the cemetery property sought
to be removed from dedication; and

(e) Specify the time and place of the hearing. [Amended by 2003
c.237 §1]
Consistent with the provisions of ORS 368.326 to 368.366, a county may
vacate any real property interests the county may own in a cemetery.
Consistent with ORS 368.366 (2), the county may vacate its real property
interests in favor of a private nonprofit organization provided the
organization states its intent to provide for the continuing maintenance
and care of the cemetery and associated facilities. [1997 c.747 §2](1)(a) Whenever any cemetery that is within the limits of any
county, city or town has been abandoned, or it is desirable to abandon
such cemetery, the governing body of any county, if the cemetery is owned
by the county, or the corporate authorities of the city or town, if the
cemetery is owned by the city or town, or the trustees or directors, if
the cemetery is owned by an association or corporation, may order that
such burial ground be discontinued, have the remains of all persons
interred in the cemetery moved to some other suitable place and provide
for the removal and reerection of all stones and monuments marking said
graves. Each removal must be made in an appropriate manner and in
accordance with the directions of the Director of Human Services. Prior
to any removal authorized under this section, written notice must be
given to the family, or next of kin of the deceased, if known, and if
unknown, notice of the removal shall be published for at least four
successive weeks in a newspaper of general circulation in the county in
which the cemetery is located and twice in a newspaper with statewide
circulation.

(b) Any removal and the costs of the proceedings under this section
shall be at the expense of the county, city or town, individual,
corporation or association owning the cemetery to be moved.

(2) Notwithstanding subsection (1)(a) of this section, a cemetery
or burial ground containing human remains that were interred before
February 14, 1909, may not be discontinued or declared abandoned or have
remains removed from the burial ground or cemetery without prior notice
to and comment by the Oregon Commission on Historic Cemeteries. When
commenting on a request to discontinue or declare abandoned a cemetery or
burial ground, the commission shall consider:

(a) The listing of the cemetery or burial ground under ORS 97.782;

(b) The historic significance of the cemetery or graves included in
the request; and

(c) The findings of any archaeological survey of the cemetery or
burial ground. [Amended by 1955 c.472 §1; 2003 c.237 §2]No association, corporation, cemetery authority, or person
shall after February 24, 1903, lay out, open up or use any property for
cemetery or burial park purposes, without the approval of the planning
commission of the county or city having jurisdiction under ORS 92.042 or,
if there is no such commission in such county or city, the governing body
of such county or city. [Formerly 64.060; 1965 c.396 §3]SALES AND RIGHTS IN RESPECT OF CEMETERY PLOTS After
filing the map or plat and recording the declaration of dedication, a
cemetery authority may sell and convey plots subject to such rules and
regulations as may be then in effect and subject to such other and
further limitations, conditions and restrictions made a part of the
declaration of dedication by reference or included in the instrument of
conveyance of the plot.No person, firm or corporation shall sell or offer
to sell a cemetery plot upon the promise, representation or inducement of
resale at a financial profit, except with the consent and approval of the
Secretary of State. Each violation of this section constitutes a separate
offense. [Amended by 1989 c.171 §13] No
cemetery authority shall pay or offer to pay, and no person, firm or
corporation shall receive, directly or indirectly, a commission, bonus,
rebate or other thing of value for the sale of a plot or services. This
does not apply to a person regularly employed by the cemetery authority
for such purpose. Each violation of this section constitutes a separate
offense.
No person shall pay, cause to be paid or offer to pay, and no person,
firm or corporation shall receive, directly or indirectly, except as
provided in ORS 97.530, any commission, bonus, rebate or other thing of
value in consideration of recommending or causing a dead human body to be
disposed of in any cemetery. Each violation of this section constitutes a
separate offense. All plots, the use of which has been
conveyed by deed or certificate of ownership as a separate plot, are
indivisible except with the consent of the cemetery authority, or as
provided by law. All plots
conveyed to individuals are presumed to be solely and separately owned by
the person named in the instrument of conveyance. (1) The spouse of an
owner of any plot containing more than one interment space has a vested
right of interment of the remains of the spouse in the plot, and any
person thereafter becoming the spouse of the owner has a vested right of
interment of the remains of the person in the plot if more than one
interment space is unoccupied at the time the person becomes the spouse
of the owner.

(2) The purchase by a married person of more than one interment
space shall create in the spouse a right of interment therein. No conveyance or
other action of the owner without the written consent or joinder of the
spouse of the owner divests the spouse of the vested right of interment,
except that a judgment of divorce between them terminates the right
unless otherwise provided in the judgment. [Amended by 2003 c.576 §357] No transfer of any
plot, heretofore or hereafter made, or any right of interment is complete
or effective until recorded on the books of the cemetery authority. Upon the death of the owner, unless the
owner has disposed of the plot either by specific direction in the will
of the owner or by a written declaration filed and recorded in the office
of the cemetery authority, if no interment has been made in an interment
plot which has been transferred by deed or certificate of ownership to an
individual owner or if all remains previously interred are lawfully
removed, the plot descends to the heirs at law of the owner, subject to
the rights of interment of the decedent and the surviving spouse of the
decedent. When
there are two or more owners of a burial plot or of rights of interment
therein, such owners may designate one or more persons to designate the
burials to be made in the plot and file written notice of such
designation with the cemetery association. In the absence of such notice
or of written objection to its so doing, the cemetery association is not
liable to any owner for interring or permitting an interment therein upon
the request or direction of any registered coowner of the plot.An affidavit by any person having knowledge of the
fact, setting forth the fact of the death of one owner and establishing
the identity of the surviving owners named in the deed to any plot, when
filed with the cemetery authority operating the cemetery in which the
plot is located, is authorization to the cemetery authority to permit the
use of the unoccupied portion of the plot in accordance with the
directions of the surviving owners or their successors in interest. (1) Whenever an interment
of the remains of a member or of a relative of a member of the family of
the record owner, or of the remains of the record owner, is made in a
plot transferred by deed or certificate of ownership to an individual
owner, and the owner dies without making disposition of the plot, either
by direction in the owner’s will, or by a written declaration filed and
recorded in the office of the cemetery authority, the plot thereby
becomes inalienable and shall be held as the family plot of the owner,
and occupied in the following order:

(a) One grave, niche or crypt may be used for the owner’s
interment; one for the owner’s surviving spouse, if there is one, who by
ORS 97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to
97.920 and 97.990 has a vested right of interment in it; and in those
remaining, if any, the children of the deceased owner in order of death
may be interred without the consent of any person claiming any interest
in the plot.

(b) If no child survives, the right of interment goes in order of
death to the spouse of any child of the record owner.

(2) Any surviving spouse, child or child’s spouse who has a right
of interment in a family plot may waive such right in favor of any other
relative or spouse of a relative of either the deceased owner or of the
deceased owner’s spouse, and upon such waiver the remains of the person
in whose favor the waiver is made may be interred in the plot.

(3) Notwithstanding subsection (1) of this section, the personal
representative of the deceased owner of a family plot may sell unoccupied
interment spaces in the plot as property of the estate of the deceased
owner when there are no existing rights of interment in those spaces or
all existing rights of interment in those spaces have been waived and
thereby terminated.

(4) Whenever a plot is transferred by deed or certificate of
ownership to an individual owner and the transfer is recorded on the
books of the cemetery authority, the cemetery authority shall provide to
the individual owner a written statement, in a form approved by the State
Mortuary and Cemetery Board, containing a clear explanation of the
provisions of subsections (1) and (2) of this section and of the rights
of interment established thereby. [Amended by 1985 c.652 §1] A vested
right of interment may be waived and is terminated upon the interment
elsewhere of the remains of the person in whom it is vested. No vested right
of interment gives to any person the right to have the remains of the
person interred in any interment space in which the remains of any
deceased person having equal or prior vested right of interment have been
interred; nor does it give any person the right to have the remains of
more than one deceased person interred in a single interment space in
violation of the rules and regulations of the cemetery in which the
interment space is located.CEMETERY MANAGEMENT (1) The
cemetery authority may make and enforce rules and regulations for:

(a) The use, care, control, management, restriction and protection
of its cemetery;

(b) Restricting and limiting the use of all property within its
cemetery;

(c) Regulating the uniformity, class and kind of all markers,
monuments and other structures within its cemetery;

(d) Prohibiting the erection of monuments, markers or other
structures in or upon any portion of its property;

(e) Regulating or preventing the erection of monuments, effigies
and structures within any portion of the cemetery grounds and for the
removal thereof;

(f) Regulating the care or preventing the introduction of plants or
shrubs within such grounds;

(g) Preventing the interment in any part thereof of a body not
entitled to interment therein;

(h) Preventing the use of burial plots for purposes violative of
its restrictions;

(i) Regulating the conduct of persons and preventing improper
assemblages therein; and

(j) All other purposes deemed necessary by the cemetery authority
for the proper conduct of its business and the protection and
safeguarding of the premises and the principles, plans and ideals on
which the cemetery was organized.

(2) The cemetery authority from time to time may amend, add to,
revise, change or modify such rules and regulations.

(3) Such rules and regulations shall be plainly printed or
typewritten and maintained, subject to inspection, in the office of the
cemetery authority. (1) The
person in charge of any premises on which interments or cremations are
made shall keep a record of all remains interred or cremated on the
premises under the person’s charge, in each case stating the name of each
deceased person, the date of interment or cremation, and the name and
address of the funeral service practitioner. The interment records shall
be open to inspection by survivors of the decedent during the customary
office hours of the cemetery authority.

(2) A record shall be kept of the ownership of all plots in the
cemetery which have been conveyed by the cemetery authority and of all
transfers of plots in the cemetery. Gifts, grants
and bequests of personal property in trust for the purpose of providing
perpetual care and maintenance, improvement or embellishment of private
burial lots in or outside of cemeteries and of the walks, fences,
monuments, structures or tombs thereon, are permitted and shall be deemed
to be for perpetual and benevolent uses. They are not invalid by reason
of any indefiniteness or uncertainty of the persons designated as
beneficiaries in the instrument creating the trust; nor are they invalid
as violating any existing laws against perpetuities or suspension of the
power of alienation of title to property. But nothing in this section
affects any existing authority or cause to pass upon the reasonableness
of the amount of such gift, grant or bequest. Any cemetery association
may act as trustee of and execute any such trust with respect to lots,
walks, fences, monuments, structures or tombs, both within or outside its
own cemetery limits, but within the county where such cemetery
association has its principal office and place of business, whether such
power is otherwise included in its corporate powers or not.INDIAN GRAVES AND PROTECTED OBJECTS For the purposes of
ORS 97.740 to 97.760:

(1) “Burial” has the meaning given that term in ORS 358.905.

(2) “Funerary object” has the meaning given that term in ORS
358.905.

(3) “Human remains” has the meaning given that term in ORS 358.905.

(4) “Indian tribe” means any tribe of Indians recognized by the
Secretary of the Interior or listed in the Klamath Termination Act, 25
U.S.C. 3564 et seq., or listed in the Western Oregon Indian Termination
Act, 25 U.S.C. 3691 et seq., if the traditional cultural area of the
tribe includes Oregon lands.

(5) “Object of cultural patrimony” has the meaning given that term
in ORS 358.905.

(6) “Professional archaeologist” means a person who has extensive
formal training and experience in systematic, scientific archaeology.

(7) “Sacred object” has the meaning given that term in ORS 358.905.
[1977 c.647 §1; 1981 c.442 §3; 1985 c.198 §2; 1993 c.459 §9; 1997 c.249
§34] (1) Except as provided
in ORS 97.750, no person shall willfully remove, mutilate, deface, injure
or destroy any cairn, burial, human remains, funerary object, sacred
object or object of cultural patrimony of any native Indian. Persons
disturbing native Indian cairns or burials through inadvertence,
including by construction, mining, logging or agricultural activity,
shall at their own expense reinter the human remains or funerary object
under the supervision of the appropriate Indian tribe.

(2) Except as authorized by the appropriate Indian tribe, no person
shall:

(a) Possess any native Indian artifacts, human remains or funerary
object having been taken from a native Indian cairn or burial in a manner
other than that authorized under ORS 97.750.

(b) Publicly display or exhibit any native Indian human remains,
funerary object, sacred object or object of cultural patrimony.

(c) Sell any native Indian artifacts, human remains or funerary
object having been taken from a native Indian cairn or burial or sell any
sacred object or object of cultural patrimony.

(3) This section does not apply to:

(a) The possession or sale of native Indian artifacts discovered in
or taken from locations other than native Indian cairns or burials; or

(b) Actions taken in the performance of official law enforcement
duties.

(4) Any discovered human remains suspected to be native Indian
shall be reported to the state police, the State Historic Preservation
Officer, the appropriate Indian tribe and the Commission on Indian
Services. [1977 c.647 §2; 1979 c.420 §1; 1981 c.442 §4; 1985 c.198 §1;
1993 c.459 §10] (1) Any proposed excavation by a
professional archaeologist of a native Indian cairn or burial shall be
initiated only after prior written notification to the State Historic
Preservation Officer and the state police, as defined in ORS 358.905, and
with the prior written consent of the appropriate Indian tribe in the
vicinity of the intended action. Failure of a tribe to respond to a
request for permission within 30 days of its mailing shall be deemed
consent. All associated material objects, funerary objects and human
remains removed during such an excavation shall be reinterred at the
archaeologist’s expense under the supervision of the Indian tribe.

(2) In order to determine the appropriate Indian tribe under this
section and ORS 97.745, a professional archaeologist or other person
shall consult with the Commission on Indian Services which shall
designate the appropriate tribe. [1977 c.647 §3; 1979 c.420 §2; 1981
c.442 §5; 1993 c.459 §11](1) Apart from any criminal
prosecution, an Indian tribe or enrolled member thereof shall have a
civil action to secure an injunction, damages or other appropriate relief
against any person who is alleged to have violated ORS 97.745. The action
must be brought within two years of the discovery of the violation by the
plaintiff. The action may be filed in the circuit court of the county in
which the subject grave, cairn, remains or artifacts are located, or
within which the defendant resides.

(2) Any conviction pursuant to ORS 97.990 (5) shall be prima facie
evidence of a violation of ORS 97.745 in an action brought under this
section.

(3) If the plaintiff prevails:

(a) The court may grant injunctive or such other equitable relief
as is appropriate, including forfeiture of any artifacts or remains
acquired or equipment used in the violation. The court shall order the
disposition of any items forfeited as it sees fit, including the
reinterment of any human remains in accordance with ORS 97.745 (1);

(b) The plaintiff shall recover imputed damages in an amount not to
exceed $10,000 or actual damages, whichever is greater. Actual damages
include special and general damages, which include damages for emotional
distress;

(c) The plaintiff may recover punitive damages upon proof that the
violation was willful. Punitive damages may be recovered without proof of
actual damages. All punitive damages shall be paid by the defendant to
the Commission on Indian Services for the purposes of Indian historic
preservation; and

(d) An award of imputed or punitive damages may be made only once
for a particular violation by a particular person, but shall not preclude
the award of such damages based on violations by other persons or on
other violations.

(4) The court may award reasonable attorney fees to the prevailing
party in an action under this section. [1981 c.442 §2; 1995 c.543 §1;
1995 c.618 §55]OREGON COMMISSION ON HISTORIC CEMETERIES” For purposes of ORS
97.772 to 97.784, “historic cemetery” means any burial place that
contains the remains of one or more persons who died before February 14,
1909. [1999 c.731 §1; 2003 c.173 §1]Note: 97.772 to 97.784 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 97 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. (1) There
is established within the State Parks and Recreation Department the
Oregon Commission on Historic Cemeteries consisting of seven members
appointed by the State Parks and Recreation Director.

(2) The term of office of each member is four years, but a member
serves at the pleasure of the director. Before the expiration of the term
of a member, the director shall appoint a successor whose term begins on
July 1 next following. A member is eligible for reappointment. If there
is a vacancy for any cause, the director shall make an appointment to
become immediately effective for the unexpired term.

(3) A member of the commission is entitled to compensation and
expenses as provided in ORS 292.495. [1999 c.731 §2; 2003 c.173 §2]Note: See note under 97.772. The members of the Oregon
Commission on Historic Cemeteries must be citizens of this state who are
well informed on the restoration and maintenance of historic cemeteries.
The State Parks and Recreation Director shall select members from
nominations made by organizations of local historic cemeteries,
organizations of nonprofit cemeteries, the State Mortuary and Cemetery
Board and statewide cemetery associations. The director shall try to
appoint individuals to the commission who represent or are knowledgeable
concerning Native American burial places, rural cemeteries, family burial
places and metropolitan cemeteries. [1999 c.731 §4; 2003 c.173 §3]Note: See note under 97.772. (1) The Oregon Commission on
Historic Cemeteries shall select one of its members as chairperson and
another as vice chairperson for such terms and with duties and powers
necessary for the performance of the functions of such offices as the
commission determines.

(2) A majority of the members of the commission constitutes a
quorum for the transaction of business.

(3) The commission shall meet at least once every three months at a
place, day and hour determined by the commission. The commission also
shall meet at other times and places specified by the call of the
chairperson or of a majority of the members of the commission. [1999
c.731 §5; 2003 c.173 §4]Note: See note under 97.772. The Oregon Commission on Historic Cemeteries shall:

(1) Maintain a listing of all historic cemeteries in this state.

(2) Assist in coordination of restoration, renovation and
maintenance of Oregon’s historic cemeteries.

(3) Make recommendations to the State Parks and Recreation Director
for projects and funding to help maintain and improve Oregon’s historic
cemeteries.

(4) Obtain grant funding and seek legislative appropriations for
individual historic cemeteries and groups of historic cemeteries.

(5) Make recommendations to the Legislative Assembly for changes in
law that will help protect historic cemeteries as part of Oregon’s
heritage.

(6) Assist the director in locating and listing historic cemeteries.

(7) Assist cemeteries listed as historic cemeteries with the
commission to rehabilitate and maintain those cemeteries and to promote
public education relating to historic cemeteries.

(8) Establish a process to obtain advice from authorities on the
subject of the care of old grave markers and graveyards as part of any
restoration process. [1999 c.731 §6; 2003 c.173 §5]Note: See note under 97.772. A historic cemetery
that is not an operating cemetery, as defined in ORS 692.010, shall be
listed with the Oregon Commission on Historic Cemeteries. An owner or any
other person or association of individuals that maintains such a historic
cemetery shall list the historic cemetery with the Oregon Commission on
Historic Cemeteries on a form provided by the commission. No fee shall be
required from a historic cemetery for listing. [1999 c.731 §7; 2003 c.173
§6]Note: See note under 97.772. The State Parks and
Recreation Department shall provide support services to the Oregon
Commission on Historic Cemeteries. One staff person of the department
shall be the executive secretary of the commission. [1999 c.731 §8; 2003
c.173 §7]Note: See note under 97.772.CEMETERY CARE (1) An
endowment care cemetery is one which after July 5, 1955, deposits with
the trustee or custodian of its endowment care fund not less than the
following amounts for plots sold after that date:

(a) Fifteen percent of the gross sales price with a minimum of $5
for each grave or, when the gross sales price is paid in installments, 15
percent of each installment until at least 15 percent of the gross sales
price has been deposited, with a minimum of $5 for each grave.

(b) Five percent of the gross sales price for each niche or, when
the gross sales price is paid in installments, five percent of each
installment until at least five percent of the gross sales price has been
deposited.

(c) Five percent of the gross sales price for each crypt or, when
the gross sales price is paid in installments, five percent of each
installment until at least five percent of the gross sales price has been
deposited.

(2) The cemetery authority shall deposit with the trustee or
custodian of its endowment care fund any payment received by it and
required by subsection (1) of this section to be paid into such fund,
within 30 days from the receipt of such payment.

(3) Within 75 days of the end of its fiscal year, each endowment
care cemetery, except one owned by a city or a county, shall file with
the Director of the Department of Consumer and Business Services a
statement containing the following information pertaining to the
endowment care fund: The total amount invested in bonds, securities,
mortgages and other investments, the total amount of cash on hand not
invested at the close of the previous calendar or fiscal year, the income
earned by investments in the preceding calendar or fiscal year, the
amounts of such income expended for maintenance in the preceding calendar
or fiscal year, the amount paid into the fund in the preceding calendar
or fiscal year and such other items as the director may from time to time
require to show accurately the complete financial condition of the trust
on the date of the statement.

(4) All of the information appearing on the statement shall be
verified by an owner or officer of the cemetery authority, and a copy of
the statement shall be maintained in the business office of the cemetery
authority.

(5) The director shall have authority to require, as often as the
director deems necessary, the cemetery authority to make under oath a
detailed report of the condition and assets of any cemetery endowment
care fund.

(6) At the time of the filing of the statements of its endowment
care fund each cemetery filing shall pay to the director an annual fee as
follows:

(a) Up to 100 interments per year, $40.

(b) Over 100 interments per year, $100.

(7) All fees received by the director under this section shall be
immediately turned over to the State Treasurer who shall deposit the
moneys in the Consumer and Business Services Fund created under ORS
705.145.

(8) No cemetery shall operate after July 5, 1955, as an endowment
care, permanent maintenance or free care cemetery until the provisions of
this section are complied with. There shall be printed or stamped at the
head of all contracts and certificates of ownership or deeds referring to
plots in an endowment care cemetery, the following statement: “This
cemetery is an endowment care cemetery,” in lettering equivalent to at
least 10-point No. 2 black type, and there shall be printed in the body
of or stamped upon the above-described instruments the following
statement: “Endowment care means the general care and maintenance of all
developed portions of the cemetery and memorials erected thereon.”

(9) A cemetery which otherwise complies with this section may be
designated an endowment care cemetery even though it contains a small
area which may be sold without endowed care, if it is separately set off
from the remainder of the cemetery. There shall be printed or stamped at
the head of all contracts and certificates of ownership or deeds
referring to plots in this area the phrase “nonendowed care” in lettering
equivalent to at least 10-point No. 2 black type.

(10) A nonendowed care cemetery is one that does not deposit in an
endowment care fund the minimum specified in subsection (1) of this
section.

(11) No cemetery shall in any way advertise or represent that it
operates wholly or partially as an endowment care, permanent maintenance
or free care cemetery, or otherwise advertise or represent that it
provides general care or maintenance of all or portions of the cemetery
or memorials erected thereon, until the provisions of this section are
complied with. [Amended by 1955 c.545 §2; 1965 c.396 §4; 1967 c.213 §1;
1987 c.295 §1; 1995 c.144 §4; 1999 c.66 §1; 2001 c.796 §23](1) Every
cemetery authority that operates a cemetery may place its cemetery under
endowed care and establish, maintain and operate an endowment care fund.
All endowed care funds shall be deposited with and held solely by the
trustee or custodian appointed by the cemetery authority. The provisions
of this subsection shall not apply to a city or county-owned cemetery,
unless the city or county has elected to subject itself to ORS 97.810 to
97.865.

(2) Endowment care and special care funds may be commingled for
investment and the income therefrom shall be divided between the
endowment care and special care funds in the proportion that each fund
contributed to the principal sum invested. The income of the endowment
care fund may be used only to finance the care of the cemetery.

(3) The cemetery authority shall appoint as sole trustee of the
endowment care fund a trust company as defined in ORS 706.008 that is
authorized to transact trust business in this state, or an insured
institution as defined in ORS 706.008 that is authorized to accept
deposits in this state. Such trust company or insured institution shall
receive and accept the fund, including any accumulated endowment care
fund in existence at the time of its appointment and perform such duties
as are agreed upon in the agreement between it and the cemetery
authority. An insured institution not qualified to transact trust
business in this state may act as custodian of such endowment care fund
provided:

(a) The duties of the insured institution are essentially custodial
or ministerial in nature; and

(b) The insured institution invests the funds from such plan only
in its own time or savings deposits.

(4) The trustee or custodian may resign upon written notice to the
cemetery authority or the cemetery authority may remove the trustee or
custodian by written notice to it. In case of the resignation or removal
of the trustee or custodian, the cemetery authority forthwith shall
appoint a successor trustee or custodian and provide for the direct
transfer of all endowed care funds and earnings thereon from the former
trustee or custodian to the successor trustee or custodian.

(5) ORS 294.035 does not apply to funds held by a county or city
under ORS 97.810 to 97.865. [Amended by 1955 c.545 §3; 1965 c.396 §5;
1985 c.450 §1; 1987 c.295 §2; 1993 c.18 §19; 1993 c.229 §22; 1993 c.318
§11; 1997 c.167 §2; 1997 c.631 §395] (1)
Should the cemetery authority fail to remit to the trustee or trustees in
accordance with the law, the funds herein provided for endowment and
special care, or fail to expend all such funds and generally care for and
maintain any portion of a cemetery entitled to endowment care, any three
lot owners whose lots are entitled to endowment care, or any one lot
owner whose lot is entitled to special care, or the next of kin, heirs at
law or personal representatives of such lot owners, shall have the right,
or the district attorney of any county wherein is situated such lots,
shall have the power, by suit for mandatory injunction or for appointment
of a receiver, to sue for, to take charge of, and to expend such net
income. Such suit may be filed in the circuit court of the county in
which said cemetery is located, to compel the expenditure either by the
cemetery authority or by any receiver so appointed by the court, of the
net income from such endowment care fund for the purposes set out in ORS
97.010 to 97.040, 97.110 to 97.450, 97.510 to 97.730, 97.810 to 97.920
and 97.990.

(2) When the Director of the Department of Consumer and Business
Services has reason to believe that a cemetery endowment care fund does
not conform to the requirement of law, or when the director has reason to
believe that any cemetery is operating in violation of ORS 97.810 or
97.820, or when an endowment care cemetery fails after 30 days’ notice of
delinquency to make any report to the director required by ORS 97.810,
the director shall give notice of the foregoing to the trustee or
trustees of the cemetery endowment care fund, the cemetery for the
benefit of which the fund is established, the Attorney General of Oregon
and the State Mortuary and Cemetery Board. Within 90 days after the
receipt of such notice, the Attorney General shall institute suit in the
circuit court of any county of this state in which such cemetery is
located, for a mandatory injunction against further sales of graves,
plots, crypts, niches, burial vaults, markers or other cemetery
merchandise by such cemetery or for the appointment of a receiver to take
charge of the cemetery, unless the Attorney General shall prior to that
time be notified by the director that such failure to conform to the
requirements of the law or to report has been corrected.

(3) If a trustee fails to perform the duties of the trustee under
ORS 97.810 to 97.920, the trustee shall be liable for any damage
resulting from that failure to any lot owners or the next of kin, heirs
at law or personal representatives of such lot owners.

(4) The court may award reasonable attorney fees, costs and
disbursements to the prevailing party in an action under this section.
[1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999 c.67 §1; 2001 c.796
§24](1) The principal of all funds for
endowed care shall be invested, from time to time reinvested and kept
invested. If a trust agreement imposes upon the trustee or custodian the
duty to direct the investment or reinvestment of endowed care funds, the
trustee or custodian shall perform this duty governed by ORS 130.750 to
130.775. Otherwise, the cemetery authority, governed by ORS 130.750 to
130.775, shall direct the investment and reinvestment of endowed care
funds in the time or savings deposits of the custodian bank or savings
association.

(2) The principal of invested endowed care funds shall never be
voluntarily reduced, but shall be maintained separate and distinct by the
trustee or custodian from all other funds except that it shall be proper
to commingle endowment care funds with special care funds. The payment of
charges chargeable against principal under ORS chapter 129 or of other
expenses necessarily incurred in the administration of the trust in
accordance with subsection (1) of this section shall not constitute a
voluntary reduction of principal. The net income earned shall be used
solely for the general care and maintenance of the cemetery property
entitled to endowment care, as stipulated in the resolution, bylaw and
other action or instrument by which the fund was established, and in such
manner as the cemetery authority may from time to time determine to be in
the best interests of such endowed property. Such net income shall never
be used for the improvement or embellishment of undeveloped property
offered for sale. [Amended by 1955 c.545 §4; 1985 c.450 §3; 1987 c.295
§3; 1995 c.157 §24; 1995 c.297 §1; 2003 c.279 §32; 2005 c.348 §125] The trustee
shall have no duty whatsoever to operate, maintain or to supervise the
general maintenance of any endowment fund cemetery, and the trustee shall
have no duty whatsoever to enforce collection of any of the trust funds
either from the purchasers of lots, or from the cemetery authority, and
the trustee shall have no duty whatsoever to see to the application of
the net income after payment of the net income to the cemetery authority.
The trustee shall be entitled to rely without liability upon the
affidavit of the cemetery authority showing the amount payable to the
trustee as endowment care funds. [1955 c.545 §6]A cemetery authority which has
established an endowment care fund may take, receive and hold any
property, real, personal or mixed, bequeathed, devised, granted, given or
otherwise contributed to it for its endowment care fund. Within 30 days
of the receipt of such contributions, the cemetery authority shall
deposit, with the trustee or custodian of the fund to which the property
was contributed, all moneys and all documents or instruments of title or
conveyance evidencing the contribution. As soon as practicable, the
cemetery authority shall provide for the sale of all property for fair
market value and, within 30 days of the receipt of the proceeds thereof,
shall deposit the proceeds with the trustee or custodian. The trustee or
custodian shall execute all documents necessary to effect the sale,
consistent with the purposes of this section. [Amended by 1987 c.295 §4] The
endowment and special care funds and all payments or contributions to
them are expressly permitted as and for charitable and eleemosynary
purposes. Endowment care is a provision for the discharge of a duty from
the persons contributing to the persons interred and to be interred in
the cemetery and a provision for the benefit and protection of the public
by preserving and keeping cemeteries from becoming unkempt and places of
reproach and desolation in the communities in which they are situated. (1) Upon payment of the purchase price,
including the amount fixed as a proportionate contribution for endowed
care, there may be included in the deed of conveyance, or by separate
instrument, an agreement to care, in accordance with the plan adopted,
for the cemetery and its appurtenances to the proportionate extent the
income received by the cemetery authority from the contribution permits.

(2) Upon the application of an owner of any plot, and upon the
payment by the owner of the amount fixed as a reasonable and
proportionate contribution for endowed care, a cemetery authority may
enter into an agreement with the owner for the care of the plot of the
owner and its appurtenances.In all cases where a cemetery authority has owned a site for a
cemetery for more than 40 years and has during that period sold lots,
subdivisions of lots, pieces or parcels of the cemetery for burial
purposes and the grantee or party claiming through the grantee has not
used portions of such lots, subdivisions of lots, pieces or parcels of
the cemetery for purposes of burial and has not kept them free of weeds
or brush, but has allowed them to remain entirely unused for more than 40
years or uncared for and unused for more than 20 years prior to the
adoption of the resolution provided for in ORS 97.880, and such lots,
subdivisions of lots, pieces and parcels of the cemetery are adjacent to
improved parts thereof, and by reason of their uncared-for condition
detract from the appearance of the cemetery and interfere with the
harmonious improvement thereof, and furnish a place for the propagation
of weeds and brush, thereby becoming a menace to adjacent property, such
lots, subdivisions of lots, pieces and parcels of such cemetery, which
are unused and uncared for as aforesaid, hereby are declared to be a
common nuisance and contrary to public policy. The provisions of this
section are not applicable to portions of cemeteries which have been or
are sold with agreements between the cemetery authority or its successor
in interest, or both, and the grantee providing for endowment care,
permanent care, maintenance or free care. [Amended by 1965 c.396 §7] The governing board of a
cemetery authority described in ORS 97.870 may adopt a resolution
declaring such unused and unimproved portion of its cemetery as is
described in ORS 97.870 a common nuisance and an abandoned and unused
portion of such cemetery, and may direct its officers to file the
complaint described in ORS 97.890. [Amended by 1983 c.740 §9] (1) Upon the adoption of the resolution described
in ORS 97.880 the officers of the cemetery association may file a
complaint in the circuit court for the county in which the cemetery is
located against the owners, holders or parties interested in such
abandoned portion of its cemetery demanding that the court require such
owners, holders or interested parties to keep the premises clear of weeds
and brush and in condition in harmony with other lots and, if the owners,
holders, or interested parties fail to appear in court and comply with
the order of the court, demanding that the court make a judgment
declaring such portions of the cemetery a common nuisance, directing the
governing board to abate the nuisance by clearing the premises and
keeping them clear of weeds and brush, creating a lien upon such lots and
parcels in favor of the cemetery association or other proprietor,
providing that the lien be foreclosed and the lots and parcels be sold in
the same manner as other sales upon execution are made and authorizing
the governing board to become a purchaser thereof on behalf of the
association or the proprietor.

(2) In such suit any number of owners of different lots,
subdivisions of lots, pieces or parcels of the cemetery may be included
in the one suit.

(3) It is a sufficient designation of the property so abandoned and
unimproved to give the lot number or portion thereof, or a description of
the piece or parcel having no lot number, together with the name of the
owner thereof, as appears on the record of the cemetery association.

(4) In addition to the names of the persons that appear on the
records of the cemetery association as the record owners of such unused
and unimproved portions of the cemetery, the plaintiff shall include as a
defendant in a complaint the following: “Also all other persons unknown
claiming any right, title, estate, lien or interest in the unused and
unimproved portions of the cemetery described in the complaint.” [Amended
by 2003 c.576 §358] (1) Summons shall be served upon all owners or
holders who are residents of this state in like manner as in service of
summons in a civil action if such owners and holders are known to the
sheriff in the county in which the cemetery is located. If the defendants
are not known to the sheriff, it is sufficient to serve the owners and
holders whose names appear on the tax rolls of the county for the year
previous to that in which the suit is started. The plaintiff is not
required to mail a copy of the summons or complaint to nonresident
defendants.

(2) All owners and holders of such unimproved lots whose names do
not appear on the tax rolls as aforesaid as shown by the return of the
sheriff may be served by publication in any legal newspaper published in
the county in which the cemetery is located for four consecutive weeks
upon return of the sheriff that such owners and holders are not known and
cannot be served in the jurisdiction of the sheriff.

(3) The published summons shall contain the names of the record
owners, as shown by the records of the cemetery association, and “also
all other persons unknown claiming any right, title, estate, lien or
interest in the unused and unimproved portions of the cemetery described
in the complaint,” together with a brief description of the lot, or
subdivisions of lots, pieces or parcels of the cemetery and a statement
setting forth the order and judgment described in ORS 97.890 (1) for
which the plaintiff has applied to the court in the complaint. Such
summons shall require all parties defendant to appear and show cause why
an order should not be made declaring the unused and unimproved portions
of the cemeteries to be a common nuisance, directing the cemetery
association or other proprietor to abate the nuisance, creating a lien
thereon, providing that it be foreclosed and directing that the unused
and unimproved portion of the cemetery be sold within four weeks from and
after the date of the first publication thereof. [Amended by 2003 c.576
§359] In all cases
arising under ORS 97.870 to 97.900, the fact that the owner, holder or
interested party, of the unused and unimproved portion of the cemetery
has not, for a term of 20 years or more, used the plot and has failed to
keep it clear of weeds or brush is prima facie evidence that the owner,
holder or interested party has abandoned it.Upon the failure of the owner of the
premises to comply with the order of the court requiring proper care of
the premises or upon the failure of any of the defendants to appear and
answer the complaint or upon the trial of the cause, if the court finds
that the allegations of the complaint are supported by the evidence and
that the summons has been served as provided in ORS 97.900, the court may
enter a judgment in accordance with the allegations of the complaint and
the provisions of ORS 97.890 (1). [Amended by 2003 c.576 §360]PREARRANGEMENT SALES AND PRECONSTRUCTION SALES

(1) “Beneficiary” means the person, if known, who is to receive the
funeral and cemetery merchandise, funeral and cemetery services or
completed interment, entombment or cremation spaces.

(2) “Certified provider” means any person certified under ORS
97.933 to sell or offer for sale prearrangement sales contracts or
preconstruction sales contracts.

(3) “Delivery” occurs when:

(a) Physical possession of the funeral and cemetery merchandise is
transferred to the purchaser;

(b) Title to the funeral and cemetery merchandise has been
transferred to the purchaser, has been paid for, and is in the possession
of the seller, who has placed it, until needed, for storage on the
seller’s premises; or

(c) The merchandise has been identified for the purchaser or the
beneficiary and held by the manufacturer for future delivery.

(4) “Depository” means a financial institution or trust company, as
those terms are defined ORS 706.008, that is authorized to accept
deposits in this state or to transact trust business in this state.

(5) “Director” means the Director of the Department of Consumer and
Business Services.

(6) “Funeral and cemetery merchandise” includes nonperishable items
of personal property customarily sold by funeral service establishments,
cemeteries, crematoriums and monument companies, including, but not
limited to, caskets, burial vaults, memorials, markers and foundations,
but shall not include rights of interment or entombment in a cemetery
section, lawn crypt section, mausoleum or columbarium that is in
existence at the time of initial payment on the contract.

(7) “Funeral and cemetery services” includes all services
customarily performed:

(a) By a funeral service practitioner, embalmer, funeral service
establishment, cemetery or crematorium licensed under ORS chapter 692;

(b) In conjunction with an interment, entombment or cremation; and

(c) In conjunction with the sale, installation or erection of a
memorial, marker, monument or foundation.

(8) “Guaranteed contract” means a written preconstruction sales
contract or prearrangement sales contract that guarantees the beneficiary
the specific undeveloped space or spaces or funeral and cemetery
merchandise or funeral and cemetery services contained in the contract
and under which no charges other than the sales price contained in the
contract shall be required upon delivery or performance of the funeral
and cemetery services.

(9) “Master trustee” means an entity appointed by a certified
provider to administer moneys received from the certified provider under
ORS 97.941 who acts independently from any certified provider and who is
not also a certified provider under ORS 97.923 to 97.949. “Master
trustee” does not include a financial institution, as defined in ORS
706.008, that acts solely as a depository under ORS 97.923 to 97.949.

(10) “Nonguaranteed contract” means a written preconstruction sales
contract or prearrangement sales contract that guarantees the beneficiary
the specific undeveloped space or spaces or funeral and cemetery
merchandise or funeral and cemetery services contained in the contract
and under which additional charges other than the sales price contained
in the contract may be required at the time of delivery or performance of
the funeral and cemetery services.

(11) “Preconstruction sales” or “preconstruction sales contract”
means any sale made to a purchaser, which has as its purpose the
furnishing of undeveloped interment, entombment or cremation spaces and
where the sale terms require payment or payments to be made at a
currently determinable time.

(12) “Prearrangement sales” or “prearrangement sales contract”
means any sale, excluding the sale and contemporaneous or subsequent
assignment of a life insurance policy or an annuity contract, made to a
purchaser, that has as its purpose the furnishing of funeral and cemetery
merchandise or funeral and cemetery services in connection with the final
disposition or commemoration of the memory of a dead human body, for use
at a time determinable by the death of the person or persons whose body
or bodies are to be disposed and where the sale terms require payment or
payments to be made at a currently determinable time.

(13) “Provider” means any entity that sells and offers for sale
funeral and cemetery merchandise or funeral and cemetery services.

(14) “Purchaser” means a beneficiary or a person acting on behalf
of a beneficiary who enters into a prearrangement sales contract or a
preconstruction sales contract with a certified provider under which any
payment or payments made under the contract are required to be deposited
in trust under ORS 97.941.

(15) “Salesperson” means an individual registered under ORS 97.931
and employed by a certified provider to engage in the sale of
prearrangement or preconstruction sales contracts on behalf of the
certified provider.

(16) “Sales price” means the gross amount paid by a purchaser for a
prearrangement sales contract or preconstruction sales contract,
excluding sales taxes, credit life insurance premiums and finance charges.

(17) “Trust” means an express trust created under ORS 97.941
whereby a trustee has the duty to administer the amounts specified under
ORS 97.941 received under a prearrangement sales contract or a
preconstruction sales contract for the benefit of the purchaser of a
prearrangement sales contract or preconstruction sales contract.

(18) “Undeveloped interment, entombment or cremation spaces” or
“undeveloped spaces” means any space to be used for the reception of
human remains that is not completely constructed or developed at the time
of initial payment. [Formerly 128.400; 2003 c.362 §1]Note: 97.923 to 97.949 (formerly 128.400 to 128.440) were enacted
into law by the Legislative Assembly but were not added to or made a part
of ORS chapter 97 or any series therein by legislative action. See
Preface to Oregon Revised Statutes for further explanation.It is the purpose of ORS 97.923 to 97.949, 97.992,
97.994 and 692.180 to assure funds for performance to those purchasers
who contract through prearrangement sales contracts for the purchase of
funeral and cemetery merchandise and funeral and cemetery services, and
through preconstruction sales contracts for undeveloped interment,
entombment or cremation spaces. It is also the purpose of ORS 97.923 to
97.949, 97.992, 97.994 and 692.180 to provide for the certification or
registration of persons selling or offering for sale prearrangement sales
contracts and preconstruction sales contracts, the creation and
administration of prearrangement sales contract and preconstruction sales
contract trust funds, the disbursement and allocation of trust funds upon
the certified provider’s performance of its contractual obligations and
to provide protection for the purchaser upon the certified provider’s
default. [Formerly 128.405]Note: See note under 97.923. (1) Except as
provided in this section, ORS 97.923 to 97.949, 97.992, 97.994 and
692.180 apply to all certified providers, master trustees and
salespersons who sell or offer for sale prearrangement sales contracts or
preconstruction sales contracts.

(2) ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply
to:

(a) Agreements to sell or sales made by endowment care cemeteries
under ORS 97.929; or

(b) Any nonprofit memorial society charging less than a $100
membership fee. [Formerly 128.407; 2003 c.362 §2]Note: See note under 97.923. (1) The provisions of
ORS 97.923 to 97.949, 97.992, 97.994 and 692.180 do not apply to:

(a) Agreements to sell or sales of graves, crypts or niches where
such graves, crypts or niches are in existence at the time of the sale or
agreement to sell and are located in an endowment care cemetery as
defined in ORS 97.810.

(b) Agreements to sell or sales of crypts or niches where such
crypts or niches are not in existence at the time of the sale or
agreement to sell and are to be located in an endowment care cemetery,
provided that:

(A) Thirty-five percent of the sales price of each crypt or niche
described in this paragraph is deposited in accordance with the
provisions of ORS 97.937; or

(B) Such endowment care cemetery deposits a bond with a corporate
surety authorized to do business in this state, or an irrevocable letter
of credit issued by an insured institution, as defined in ORS 706.008.
The bond or letter of credit shall be in an amount equal to 35 percent of
the total sales price of all crypts or niches described in this paragraph
that have been sold by the endowment care cemetery and that have not yet
been completed.

(c) Agreements to sell or sales of burial vaults or markers for
installation in an endowment care cemetery, provided that:

(A) Sixty-six and two-thirds percent of the sale price of such
vaults or markers is deposited in accordance with the provisions of ORS
97.937;

(B) Such endowment care cemetery is at the time of the sale or
agreement to sell and for not less than 24 months before such sale or
agreement has been in continuous operation as an endowment care cemetery
and has assumed the obligation to supply and install the vault or marker
and maintain it as part of its endowment care program; and

(C) Such endowment care cemetery deposits with the Director of the
Department of Consumer and Business Services:

(i) A bond in a form approved by the director in the amount of
$10,000 issued by a corporate surety authorized to do business in this
state; or

(ii) An irrevocable letter of credit in a form approved by the
director in the amount of $10,000 issued by an insured institution, as
defined in ORS 706.008.

(2) Notwithstanding the exception provided in subsection (1) of
this section, a person who would otherwise have a claim against a
certified provider, a master trustee or a salesperson under the
provisions of ORS 97.923 to 97.949 or ORS chapter 692 shall have a right
against the bond or letter of credit described in subsection (1)(b) and
(c) of this section. [Formerly 128.412; 2003 c.271 §1]Note: Section 2, chapter 68, Oregon Laws 1999, provides:

by
section 1 of this 1999 Act apply only to agreements to sell crypts or
niches entered into on or after the effective date of this 1999 Act
[October 23, 1999], and sales of crypts and niches made on or after the
effective date of this 1999 Act.

(2) An endowment care cemetery that deposited a bond or an
irrevocable letter of credit under the provisions of ORS 128.412 (2)(b)
(1997 Edition) before the effective date of this 1999 Act must continue
to maintain the bond or irrevocable letter of credit in the amount
provided by ORS 128.412 (2)(b) (1997 Edition) until such time as all the
crypts and niches that were part of the development covered by the bond
or letter of credit are completed. Any endowment care cemetery that
maintains a bond or letter of credit pursuant to this subsection is not
required to maintain a bond or letter of credit in the amount required by
, as amended by section 1 of
this 1999 Act, for the purpose of crypts and niches located in the
development covered by the bond or letter of credit maintained under the
provisions of this subsection, but the endowment care cemetery must
maintain a bond or letter of credit in the amount required by ORS 128.412
, as amended by section 1 of this 1999
Act, for sales of, and agreements to sell, crypts or niches located in
any development commenced on or after the effective date of this 1999
Act. [1999 c.68 §2]Note: 97.929 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 97 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) A salesperson may not engage in prearrangement sales
made by endowment care cemeteries under ORS 97.929 or in preconstruction
sales or prearrangement sales unless the salesperson is registered with
the State Mortuary and Cemetery Board or holds a current funeral service
practitioner license, embalmer license, funeral service practitioner
apprentice registration or embalmer apprentice registration. The board by
rule shall:

(a) Establish procedures for issuing salesperson registrations
under this subsection;

(b) Establish standards for determining whether a salesperson
registration should be issued;

(c) Set renewal and salesperson registration fees; and

(d) Require biennial renewal of salesperson registrations.

(2) The board may conduct a background check of any salesperson
applying for registration under subsection (1) of this section. The
background check may include information solicited from the Department of
State Police. After consideration of information obtained from any
background check and any other information in its possession, the board
shall determine whether to register the salesperson.

(3)(a) The board may impose a civil penalty of up to $1,000 per
violation or suspend, revoke or refuse to issue or renew the registration
of a salesperson described in subsection (1) of this section upon a
determination that the applicant or holder has not complied with the
provisions of ORS 97.923 to 97.949 or ORS chapter 692, or any rules
adopted thereunder. When the board proposes to take such action, the
person affected by the action shall be accorded notice and an opportunity
for hearing as provided by ORS chapter 183. The board shall notify the
Director of the Department of Consumer and Business Services of its
intent to take action against a salesperson or person acting as a
salesperson.

(b) The board shall suspend, revoke or refuse to issue or renew the
registration of a salesperson if the director requests the board to take
such action.

(4) Fees and other moneys received by the board under this section
shall be deposited into the State Mortuary and Cemetery Board Account
established in ORS 692.375. [Formerly 128.414; 2005 c.726 §2]Note: See note under 97.923.(1) A provider may
not engage in prearrangement sales or preconstruction sales unless the
provider is certified by the Director of the Department of Consumer and
Business Services. The director shall:

(a) Establish procedures for issuing certificates required by this
section.

(b) Establish standards for determining whether a certificate
should be issued.

(c) Set certification and renewal fees.

(d) Require annual renewal of certification.

(e) Establish standards for rules of conduct of certified providers.

(2) The fees described in this section shall be reasonable and
shall defray the costs associated with the administration of ORS 97.923
to 97.949.

(3)(a) Every certified provider shall file an annual report with
the director on forms provided by the director. The annual report shall
contain any information reasonably considered necessary by the director,
including but not limited to:

(A) A disclosure of changes in trust deposits;

(B) The number of consecutively numbered prearrangement or
preconstruction sales contracts sold during the reporting period; and

(C) The number of withdrawals from or terminations of any trusts.

(b) If the annual report is not filed or is filed and shows any
material discrepancy, the director may take appropriate action and send
notification of the matter to the State Mortuary and Cemetery Board.

(c) The director may relieve a certified provider of the duty to
file the annual report upon a determination that the certified provider
has performed all obligations under the prearrangement sales contract or
preconstruction sales contract, or that such obligations lawfully have
been assumed by another or have been discharged or canceled.

(4) The director may audit the records of a certified provider that
relate to prearrangement sales or preconstruction sales, as the director
may consider appropriate. The director may refer any matter outside of
normal auditing procedures to the office of the Attorney General for
investigation and send notification of the referral to the State Mortuary
and Cemetery Board.

(5) The conduct of individuals, including salespersons as defined
in ORS 97.923, employed by a certified provider is the direct
responsibility of the certified provider. [2001 c.796 §1; 2003 c.362 §3]Note: See note under 97.923.(1) A person may not operate as a master trustee
unless the person is registered with the Director of the Department of
Consumer and Business Services. The director shall:

(a) Establish procedures for registering persons under this section.

(b) Establish standards for master trustees.

(c) Set registration and renewal fees.

(d) Establish standards for rules of conduct of master trustees.

(2)(a) Every master trustee shall file an annual report with the
director on forms provided by the director. The annual report shall
contain any information reasonably considered necessary by the director,
including but not limited to:

(A) A disclosure of changes in trust deposits; and

(B) A list of all certified providers for which the master trustee
holds funds and the total amount of funds held for each certified
provider.

(b) The director may take appropriate action under ORS 97.948 and
97.949 if a master trustee fails to file the annual report or the report
contains any material discrepancy.

(c) The director may relieve a master trustee of the duty to file
the annual report upon a determination that the master trustee has
performed all obligations under the trust agreement with each certified
provider, or that the master trustee’s obligations have been lawfully
assumed by another person or have been discharged or canceled.

(3) The director may conduct an annual audit of a master trustee.
The director shall prescribe the form of audits under this section.

(4) A master trustee who is audited under this section shall pay
all expenses and costs incurred by the director in conducting the audit.

(5) The director shall adopt rules necessary to administer this
section. The rules shall identify the specific trust provisions that are
the subject of an audit conducted under this section. [2001 c.796 §2;
2003 c.362 §4]Note: See note under 97.923.
(1) This section applies to trust deposits required to be made by
endowment care cemeteries under ORS 97.929.

(2) As used in this section, “common trust account” means trust
funds received by a provider from two or more purchasers.

(3) All such trust funds shall be deposited by the provider with a
financial institution in the State of Oregon carrying deposit insurance,
within 15 days after receipt thereof. A trust fund shall be held in a
separate account in the name of the provider followed by the words
“funeral plan trust account,” in trust for the person for whom such
prearranged funeral plan is made, or in a common trust account in the
name of the provider in trust for each person for whom such prearranged
funeral plan is made, until a trust fund is released under any of the
following conditions:

(a) Upon presentation of proof of the death of the person for whom
a prearranged funeral plan is made, the financial institution shall
release such trust fund to the provider.

(b) Upon presentation of the written request of the purchaser of a
revocable trust, the financial institution shall release such trust fund
as directed in such request.

(c) Upon presentation of proof of the death, dissolution,
insolvency or merger with another of the provider of a revocable trust,
the financial institution shall release such trust fund to the purchaser.

(d) Upon presentation of proof of the death, dissolution,
insolvency or merger with another of the provider of an irrevocable
trust, the financial institution shall continue to hold such trust fund
subject to the funeral plan trust, and upon appointment of a successor
provider by the purchaser, the purchaser’s legal representative, the
Director of the Department of Consumer and Business Services or a court
of competent jurisdiction, the financial institution shall release such
trust fund to the successor provider only as provided in paragraph (a) of
this subsection.

(4) If trust funds are held in a common trust account under
subsection (3) of this section, the provider shall maintain records
showing the purchaser and beneficiary of each individual trust fund in
the account and the allocation to each individual trust fund of interest
earned by the account.

(5) The provider may appoint a successor depository. The original
depository shall only release the trust funds to the successor depository
except as described in subsections (1) to (4) of this section.

(6) The financial institution shall in no way be responsible for
the fulfillment of any prearranged funeral plan, excepting only such
financial institution shall release a trust fund as provided in this
section.

(7) The director may appoint a successor provider upon a
determination that the original provider has ceased to provide the kinds
of services and things which the original provider agreed to provide,
that the purchaser or the purchaser’s legal representative cannot be
readily identified or contacted and that the appointment of a successor
provider is appropriate in order to protect the interests of the trust
beneficiaries. Financial institutions holding deposits of such trust
funds shall change their records to reflect such appointment of a
successor provider upon receipt of written notice of the appointment from
the director. Where the director proposes to take such action under this
subsection, the provider being replaced shall be accorded notice and an
opportunity for hearing as provided in ORS chapter 183. [Formerly 128.415]Note: Section 16, chapter 813, Oregon Laws 1987, provides:

Sec. 16. Notwithstanding the repeal of ORS 128.410 by section 17 of
by section
12 of this Act, ORS 128.410 and ORS 128.415 (1985 Replacement Part) shall
continue to apply to any prearranged funeral plan entered into prior to
the effective date of this Act [September 27, 1987]. [1987 c.813 §16]Note: 97.937 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 97 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) Three copies of a written sales contract shall be executed
for each prearrangement sales contract or preconstruction sales contract
sold by a certified provider. The certified provider shall retain one
copy of the contract and a copy of the completed contract shall be given
to:

(a) The purchaser; and

(b) The depository or the master trustee, if applicable.

(2) Upon receiving a trust deposit under ORS 97.941, the master
trustee shall sign a copy of the contract received under subsection (1)
of this section and return the contract to the purchaser.

(3) Each completed contract shall:

(a) Comply with the plain language standards described in ORS
180.545 (1);

(b) Be consecutively numbered;

(c) Have a corresponding consecutively numbered receipt;

(d) Be preprinted or, if the certified provider uses a master
trustee, be obtained from the master trustee;

(e) Identify the purchaser and certified provider who sold the
contract;

(f) Specify whether the contract is a guaranteed contract or a
nonguaranteed contract;

(g) Specify the specific funeral and cemetery merchandise, funeral
and cemetery services or undeveloped interment, entombment or cremation
spaces included and not included in the contract; and

(h) If a guaranteed contract, disclose that the certified provider
may retain 10 percent of the sales price.

(4) Notwithstanding ORS 97.943 (8), in the case of a prearrangement
sales contract, if at the time of completion of the contract, the
beneficiary of the contract is a recipient of public assistance or
reasonably anticipates becoming a recipient of public assistance, the
contract may provide that the contract is irrevocable. The contract may
provide for an election by the beneficiary, or by the purchaser on behalf
of the beneficiary, to make the contract thereafter irrevocable if after
the contract is entered into, the beneficiary becomes eligible or seeks
to become eligible for public assistance. [Formerly 128.421]Note: See note under 97.923. (1)
Upon receiving anything of value under a prearrangement sales contract or
preconstruction sales contract, the certified provider who sold the
contract shall deposit the following amounts into one or more trust funds
maintained pursuant to ORS 97.923 to 97.949, 97.992, 97.994 and 692.180:

(a) Ninety percent of the amount received in payment of a
guaranteed prearrangement sales contract or guaranteed preconstruction
sales contract. The remaining 10 percent shall be paid to the provider
who sold the contract; or

(b) One hundred percent of the amount received in payment of a
nonguaranteed prearrangement sales contract or nonguaranteed
preconstruction sales contract.

(2) All trust deposits required by ORS 97.923 to 97.949, 97.992,
97.994 and 692.180 shall be made within five business days of their
receipt.

(3) Trust deposits required under ORS 97.923 to 97.949, 97.992,
97.994 and 692.180 shall be placed in a depository as defined in ORS
97.923. The trust deposits shall be maintained in a depository, except
that the provider of a prearrangement sales contract or preconstruction
sales contract may invest the trust funds in a manner that is, in the
opinion of the provider, reasonable and prudent under the circumstances,
provided that all investments are certificates of deposit, U.S.
Treasuries, issues of U.S. government agencies, guaranteed investment
contracts, banker’s acceptances or corporate bonds rated A or better by
Standard & Poor’s Corporation or Moody’s Investors Service, and provided
that all investments shall be placed in the custody of the depository in
which the trust funds were originally deposited or any other depository
that may qualify under ORS 97.923 to 97.949. Prearrangement sales
contract trust fund and preconstruction sales contract trust fund
accounts shall be in the name of the provider who sold the contract under
ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.

(4) Funds deposited in the trust fund account shall be identified
in the records of the provider by the name of the purchaser and
beneficiary and adequate records shall be maintained to allocate all
earnings to each prearrangement sales contract or preconstruction sales
contract. Nothing shall prevent the provider from commingling the
deposits in any such trust fund account for purposes of managing and
investing the funds. A common trust fund account shall be identified by
the name of the provider.

(5) When a prearrangement sales contract or preconstruction sales
contract includes rights of interment, entombment or cremation, funeral
or cemetery merchandise or funeral or cemetery services, the application
of payments received under the contract shall be clearly provided in the
contract.

(6) Any person engaging in prearrangement sales or preconstruction
sales who enters into a combination sale which involves the sale of items
subject to trust and any item not subject to trust shall be prohibited
from increasing the sales price of those items not subject to trust with
the purpose of allocating a lesser sales price to items which require a
trust deposit.

(7)(a) A provider may appoint a successor provider. The depository
shall release the trust funds deposited under ORS 97.923 to 97.949,
97.992, 97.994 and 692.180 only to the successor provider as described in
ORS 97.943 and 97.944 or upon presentation of the written request of the
purchaser.

(b) If appointing a successor provider under this subsection, the
original provider shall notify the Director of the Department of Consumer
and Business Services of the proposed change at least 30 days prior to
the appointment.

(8)(a) A provider may appoint a successor depository or a master
trustee that is a depository as defined in ORS 97.923.

(b) If appointing a successor depository or master trustee under
this subsection, the provider, the successor depository and the master
trustee must notify the director of the proposed change at least 30 days
prior to the appointment.

(9) The trust fund accounts shall be a single purpose fund. In the
event of the provider’s bankruptcy, the funds shall not be available to
any creditor as assets of the provider, but shall be distributed to the
purchasers or managed for their benefit by the trustee in bankruptcy,
receiver or assignee.

(10)(a) If the original provider is licensed under ORS chapter 692
and voluntarily surrenders the license to the State Mortuary and Cemetery
Board, the original provider shall transfer responsibility as provider
under this section to a successor provider who holds a certificate issued
by the director under ORS 97.933.

(b) If the original provider is not licensed under ORS chapter 692,
upon presentation of proof of the death, dissolution, insolvency or
merger with another provider of the original provider, the depository
shall release the prearrangement trust fund deposits or preconstruction
trust fund deposits to the purchaser.

(c) If the original provider is licensed under ORS chapter 692,
upon proof of the death, insolvency or involuntary surrender of the
license of the original provider, the depository shall release the
prearrangement trust fund deposits or preconstruction trust fund deposits
to the purchaser.

(11) The purchaser or beneficiary of a prearrangement sales
contract or preconstruction sales contract may be named cotrustee with
the provider with the written consent of the purchaser or beneficiary.

(12) A provider who has not appointed a master trustee shall have
an annual audit of all trust account funds performed by an independent
certified public accountant in accordance with generally accepted audit
procedures. The provider shall make the audit results available to the
director if requested.

(13) As used in this section, “common trust fund account” means
trust funds received by a provider from two or more purchasers. [Formerly
128.423]Note: See note under 97.923. (1) A
depository shall make no distributions from prearrangement sales contract
trust deposits except as provided in this section.

(2) The principal of a trust created pursuant to a prearrangement
sales contract shall be paid to the certified provider who sold the
contract if the certified provider who sold the contract swears, by
affidavit, that the certified provider has delivered all merchandise and
performed all services required under the prearrangement sales contract
and delivers to the depository one of the following:

(a) A certified death certificate of the beneficiary; or

(b) A sworn affidavit signed by the certified provider and by:

(A) One member of the beneficiary’s family; or

(B) The executor of the beneficiary’s estate.

(3) The principal of a trust created pursuant to a prearrangement
sales contract shall be paid to the purchaser if the original provider is
no longer qualified to serve as provider under ORS 97.941 (10).

(4) Upon completion by the certified provider of the actions
described in subsection (2) of this section, the depository shall pay to
the certified provider from the prearrangement sales contract trust fund
an amount equal to the sales price of the merchandise delivered.

(5) Upon the final payment to the certified provider of the
principal in trust under subsection (2) of this section, the
undistributed earnings of the trust shall be paid to:

(a) The certified provider who sold the contract if the contract is
a guaranteed contract; or

(b) The contract purchaser, or the purchaser’s estate, if the
contract is a nonguaranteed contract.

(6) The depository may rely upon the certifications and affidavits
made to it under the provisions of ORS 97.923 to 97.949, 97.992, 97.994
and 692.180, and shall not be liable to any person for such reliance.

(7) If for any reason a certified provider who sold the
prearrangement sales contract has refused to comply, or cannot or does
not comply with the terms of the prearrangement sales contract within a
reasonable time after the certified provider is required to do so, the
purchaser or heirs or assigns or duly authorized representative of the
purchaser or the beneficiary shall have the right to a refund in the
amount equal to the sales price paid for undelivered merchandise and
unperformed services plus undistributed earnings amounts held in trust
attributable to such contract, within 30 days of the filing of a sworn
affidavit with the certified provider who sold the contract and the
depository setting forth the existence of the contract and the fact of
breach. A copy of this affidavit shall be filed with the Director of the
Department of Consumer and Business Services. In the event a certified
provider who has sold a prearrangement sales contract is prevented from
performing by strike, shortage of materials, civil disorder, natural
disaster or any like occurrence beyond the control of the certified
provider, the certified provider’s time for performance shall be extended
by the length of such delay.

(8) At any time prior to the death of the beneficiary of a
prearrangement sales contract, the purchaser of the prearrangement sales
contract may cancel the contract and shall be entitled to a 100 percent
refund of the entire amount paid on the contract including undistributed
earnings attributable to such amount, but excluding any amount paid for
merchandise already delivered, which amount shall be retained by the
certified provider who sold the contract as liquidated damages.

(9) Notwithstanding ORS 97.941 (4) and subsection (5) of this
section, upon receiving a sworn affidavit from the provider stating that
qualifying expenses, taxes or fees have been incurred, a depository shall
allow a provider to pay from earnings of trust fund deposits any
expenses, accounting fees, taxes, depository fees, investment manager
fees and other fees as may be necessary to enable the provider to comply
with the reporting required by ORS 97.923 to 97.949, and to perform other
services for the trust as may be authorized by ORS 97.923 to 97.949. Any
payment of expenses or fees from earnings of a trust fund deposit under
this subsection shall not:

(a) Exceed an amount equal to two percent per calendar year of the
value of the trust as determined on the first day of January of each
calendar year;

(b) Include the payment of any fee to the provider in consideration
for services rendered as provider; or

(c) Reduce, diminish or in any other way lessen the value of the
trust fund deposit so that the services or merchandise provided for under
the contract are reduced, diminished or in any other way lessened.
[Formerly 128.425; 2005 c.66 §1]Note: See note under 97.923. (1)
A depository shall make no distributions from preconstruction sales
contract trust deposits except as provided in this section.

(2) The construction or development of undeveloped interment,
entombment or cremation spaces shall be commenced on the phase of
construction or development, or the section or sections of spaces in
which sales are made within five years of the date of the first sale. The
certified provider who sold the preconstruction sales contract shall give
written notice including a description of the project to the Director of
the Department of Consumer and Business Services no later than 30 days
after the first sale. Once commenced, construction or development shall
be pursued diligently to completion. The first phase of construction must
be completed within seven years of the first sale. If construction or
development is not commenced or completed within the times specified, any
contract purchaser may surrender and cancel the contract and upon
cancellation shall be entitled to a refund of the actual amounts paid
toward the purchase price. However, any delay caused by strike, shortage
of materials, civil disorder, natural disaster or any like occurrence
beyond the control of the certified provider shall extend the time of
such completion by the length of such delay.

(3) Except as otherwise authorized by this section, every certified
provider selling undeveloped spaces shall provide facilities for
temporary interment or entombment or for cremation for purchasers or
beneficiaries of contracts who die prior to completion of the space. Such
temporary facilities shall be constructed of permanent materials, and,
insofar as practical, be landscaped and groomed to the extent customary
in that community. The heirs, assigns or personal representative of a
purchaser or beneficiary shall not be required to accept temporary
underground interment space where undeveloped space contracted for was an
aboveground entombment or cremation space. In the event that temporary
facilities as described in this subsection are not made available upon
the death of a purchaser or beneficiary, the heirs, assigns or personal
representative is entitled to a refund of the entire sales price paid
plus undistributed interest attributable to such amount while in trust.

(4) If the certified provider who sold the preconstruction sales
contract delivers a completed space acceptable to the heirs, assigns or
personal representative of a purchaser or beneficiary, other than a
temporary facility, in lieu of the undeveloped space purchased, the
certified provider shall provide the depository with a delivery
certificate and all sums deposited under the preconstruction sales
contract shall be paid to the certified provider.

(5) During the construction or development of interment, entombment
or cremation spaces, upon receiving the sworn certification by the
certified provider who sold the preconstruction sales contract and the
contractor, the depository shall disburse from the trust fund the amount
equivalent to the cost of performed labor or delivered materials as
certified. A person who executes and delivers a completion certificate
with actual knowledge of a falsity contained therein shall be considered
in violation of ORS 97.923 to 97.949 and 692.180.

(6) Upon completion of the phase of construction or development,
section or sections of the project as certified to the depository by the
certified provider and the contractor, the trust requirements shall
terminate and all funds held in the preconstruction sales contract trust
fund attributable to the completed phase, section or sections shall be
paid to the certified provider who sold the preconstruction sales
contract.

(7) Upon the payment to a certified provider of preconstruction
sales contract trust funds under subsection (4) or (6) of this section,
the undistributed income of the trust shall be paid to:

(a) The certified provider who sold the contract if the contract is
a guaranteed contract; or

(b) The contract purchaser, or the purchaser’s estate, if the
contract is a nonguaranteed contract.

(8) If the preconstruction sales contract purchaser defaults in
making payments under an installment preconstruction sales contract, and
default continues for at least 30 days after the purchaser has received
written notice of default, the certified provider who sold the contract
may cancel the contract and withdraw from the trust fund the entire
balance of the defaulting purchaser’s account as liquidating damages.
Upon certification of the default, the depository shall deliver the
balance to the certified provider. The depository may rely on the
certification and affidavits made to it under the provisions of ORS
97.923 to 979.949, 97.992, 97.994 and 692.180 and shall not be liable to
any person for such reliance.

(9) This section and the trust fund requirements in ORS 97.941
shall not apply to the sale of undeveloped spaces if there has been any
such sale in the same phase of construction or development or the section
or sections of the project prior to September 27, 1987. [Formerly 128.430]Note: See note under 97.923.(1) Every prearrangement sales contract or preconstruction sales
contract seller shall pay to the Director of the Department of Consumer
and Business Services a $5 fee for each prearrangement sales contract or
preconstruction sales contract entered into, to be paid into a special
income earning fund in the State Treasury, separate from the General
Fund, known as the Funeral and Cemetery Consumer Protection Trust Fund.
The fees shall be remitted to the director annually within 30 days after
the end of December for all contracts that have been entered into during
the 12-month period.

(2) Except as provided in this section, the fund shall be used
solely for the purpose of providing restitution to purchasers who have
suffered pecuniary loss arising out of prearrangement sales contracts or
preconstruction sales contracts. The fund may be used for payment of
actual administrative expenses incurred in administering the fund. All
moneys in the Funeral and Cemetery Consumer Protection Trust Fund are
appropriated continuously to the director for the payment of restitution
under this section and the payment of expenses incurred in performing the
duties and functions of the director required under ORS 97.923 to 97.949,
97.992, 97.994 and 692.180.

(3) The director shall administer the fund and shall adopt rules
governing the payment of restitution from the fund.

(4) Payments for restitution shall be made only upon order of the
director where the director determines that the obligation is
noncollectible from the certified provider. Restitution shall not exceed
the amount of the sales price paid plus interest at the statutory rate.

(5) The fund shall not be applied toward any restitution for losses
on a prearrangement sales contract or preconstruction sales contract
entered into prior to September 27, 1987.

(6) The fund shall not be allocated for any purpose other than that
specified in ORS 97.923 to 97.949, 97.992, 97.994 and 692.180.

(7) If the director proposes to deny an application for restitution
from the fund, the director shall accord an opportunity for a hearing as
provided in ORS chapter 183.

(8) Notwithstanding any other provision of this section, the
payment of restitution from the fund shall be a matter of grace and not
of right and no purchaser shall have vested rights in the fund as a
beneficiary or otherwise.

(9) The status of the fund shall be reviewed annually by the
director. If the review determines that the fund together with all
accumulated income earned on the fund is sufficient to cover costs of
potential claims against the fund and that the total number of
outstanding claims filed against the fund is less than 10 percent of the
fund’s current balance, then payments to the fund shall be adjusted
accordingly at the discretion of the director. [Formerly 128.435; 2003
c.362 §5]Note: See note under 97.923. (1) A person may not
engage in unsolicited door to door or telephone advertising and marketing
of prearrangement sales contracts or preconstruction sales contracts. The
costs of advertising and marketing may not be paid from trust funds.

(2) Advertising and marketing a prearrangement sales contract or a
preconstruction sales contract by a funeral service practitioner,
embalmer or funeral service establishment licensed under ORS chapter 692
does not constitute a violation of ORS 692.180 (1)(c). [Formerly 128.440]Note: See note under 97.923.(1)(a) The Director of the Department of
Consumer and Business Services may examine the conditions and resources,
including sales contracts, of a certified provider, master trustee or
person acting as a certified provider or master trustee without
certification or registration to determine whether the certified
provider, master trustee or person acting as a certified provider or
master trustee without certification or registration is complying with
ORS 97.923 to 97.949, the rules of the director and any other laws of
this state applicable to a certified provider or master trustee.

(b) In addition to the authority conferred by ORS 97.948, the
director may require a certified provider, master trustee or person
acting as a certified provider or master trustee without certification or
registration to pay the actual and reasonable costs of the examination.

(2) For the purpose of an examination under this section, the
director may administer oaths and affirmations, compel the attendance of
witnesses, take evidence and require the production of books, papers,
correspondence, memoranda, agreements or other documents or records that
the director considers relevant or material to the examination.

(3) If a certified provider, master trustee or person acting as a
certified provider or master trustee without certification or
registration fails to comply with a subpoena issued under this section or
a party or witness refuses to testify on any matter, the judge of the
circuit court for any county, on the application of the director, shall
compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from the court or a
refusal to testify on a matter before the court.

(4) Each witness who appears before the director under a subpoena
issued under this section shall receive the fees and mileage provided for
witnesses in ORS 44.415 (2), except that a witness subpoenaed at the
instance of parties other than the director or an examiner may not be
compensated for attendance or travel unless the director certifies that
the testimony of the witness was material to the matter investigated.

(5) During the course of any examination, the director may cause
the depositions of witnesses to be taken in the manner prescribed by law
for like depositions in civil suits in the circuit court. [2001 c.796 §3;
2003 c.362 §6; 2005 c.338 §1]Note: Section 30, chapter 338, Oregon Laws 2005, provides:

Sec. 30. The amendments to ORS 97.947 by section 1 of this 2005 Act
apply to:

(1) Conditions and resources, including sales contracts, in
existence before, on or after the effective date of this 2005 Act
[January 1, 2006].

(2) Conduct occurring before, on or after the effective date of
this 2005 Act. [2005 c.338 §30]Note: See note under 97.923.(1) The Director of
the Department of Consumer and Business Services may discipline a
certified provider, master trustee or person acting as a certified
provider or master trustee without certification or registration who has
been found by an audit or examination conducted by the director:

(a) To be in violation of ORS 97.923 to 97.949;

(b) To have liabilities that exceed assets;

(c) To be unable to meet obligations as they come due; or

(d) To be in a financial condition that fails to adequately protect
the interests of customers.

(2) In disciplining a certified provider, master trustee or person
acting as a certified provider or master trustee without certification or
registration under subsection (1) of this section, the director may take
the following actions:

(a) Impose probation.

(b) Suspend the certificate or registration.

(c) Revoke the certificate or registration.

(d) Place limitations on the certificate or registration.

(e) Refuse to issue or renew a certificate or registration.

(f) Issue an order to cease and desist from the activities that
support the discipline.

(g) Take any other disciplinary action that the director finds
proper, including assessment of the costs of the investigation and
disciplinary proceedings and assessment of a civil penalty not to exceed
$10,000 per violation.

(3) If the certificate or registration of a certified provider or
master trustee is suspended under this section, the holder of the
certificate or registration may not engage in the activities allowed by
the certificate or registration during the term of suspension. Upon the
expiration of the term of suspension, the director shall reinstate the
certificate or registration if the conditions for which the certificate
or registration was suspended no longer exist.

(4) The director shall enter each case of disciplinary action on
the records of the Department of Consumer and Business Services.

(5) Civil penalties under this section may be imposed as provided
in ORS 183.745.

(6) If the director takes disciplinary action under this section,
the director may send a notice of the action to the State Mortuary and
Cemetery Board and to the Attorney General. [2001 c.796 §4; 2003 c.362
§7; 2005 c.338 §2]Note: Section 31, chapter 338, Oregon Laws 2005, provides:

Sec. 31. The order authorized by the amendments to ORS 97.948 by
section 2 of this 2005 Act applies to actions occurring before, on or
after the effective date of this 2005 Act [January 1, 2006]. [2005 c.338
§31]Note: See note under 97.923.(1)
If the Director of the Department of Consumer and Business Services has
reason to believe that a person has violated any provision of ORS 97.923
to 97.949, the director may give the information relative to the
violation to the appropriate federal, state or local law enforcement
officer having jurisdiction over the violation.

(2) If the director, in the course of taking an action against a
certified provider, master trustee or person acting as a certified
provider or master trustee without certification or registration, finds
that a salesperson or person acting as a salesperson has violated any
provision of ORS 97.923 to 97.949, the director shall provide the State
Mortuary and Cemetery Board with a copy of the findings and the order of
the director. The board shall, upon receipt of such information,
discipline the salesperson or person acting as a salesperson as required
by law. [2001 c.796 §5; 2003 c.362 §8; 2005 c.338 §3]Note: See note under 97.923.ANATOMICAL GIFTS

(1) “Anatomical gift” means a donation of all or part of a human
body to take effect upon or after death.

(2) “Capable” has the meaning given in ORS 127.505 (13).

(3) “Decedent” means an individual who is dead as defined under ORS
432.300. “Decedent” includes a stillborn infant or fetus.

(4) “Document of anatomical gift” means a driver license or
identification card endorsed with an appropriate code, a will, an advance
directive or other signed document used to make an anatomical gift.

(5) “Donor” means an individual who makes an anatomical gift of all
or part of that individual’s body.

(6) “Enucleator” means a licensed embalmer, apprentice embalmer or
eye bank technician that has completed a course in ocular procurement and
has a certificate of competence from an Oregon procurement organization.

(7) “Hospital” means a facility licensed, accredited or approved as
a hospital under the laws of any state or a facility operated as a
hospital by the United States Government, a state or a subdivision of a
state.

(8) “Identification card” means the card described in ORS 807.400
or a comparable provision of the motor vehicle laws of another state.

(9) “Part” means an organ or part thereof, tissue, eye or part
thereof, bone, artery, blood, fluid or other portion of a human body.

(10) “Physician” means an individual licensed or otherwise
authorized to practice medicine under the laws of any state.

(11) “Procurement organization” means an agency licensed,
accredited or approved under the laws of any state for the acceptance,
procurement, distribution or storage of human bodies or parts.

(12) “Public health officer” means the State Medical Examiner or a
county public health officer.

(13) “Registry” means a centralized, confidential record of
individuals who have indicated their intention to donate organs, eyes or
tissue as an anatomical gift upon their death.

(14) “Technician” means an individual who is employed and
authorized by a procurement organization to remove or process a part.
[1995 c.717 §1; 1997 c.472 §4; 1999 c.201 §1; 2005 c.505 §1]Note: 97.950 to 97.964 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 97 or any
series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.(1) A capable individual who is at least 18 years of age
may be the donor of an anatomical gift.

(2) An anatomical gift may be made by:

(a) A document of anatomical gift signed by the donor. If the donor
cannot sign, the document of anatomical gift must be signed by another
individual and two witnesses, all of whom have signed at the direction
and in presence of the donor and of each other and state that it has been
so signed; or

(b) Listing on a registry with the permission of the donor.

(3)(a) An anatomical gift may be made by a designation to be
provided on the driver license and identification card of an individual
who is at least 18 years of age. The holder of a driver license or
identification card desiring to be designated as a donor on the license
or card must furnish a statement at the time of application for granting
or renewing the license or card in the manner provided by the Department
of Transportation. Signature of the license or card shall validate it as
a document of anatomical gift. Revocation, cancellation or suspension of
a driver license shall not invalidate the anatomical gift. Cancellation
of a card or lapse of a license revokes the anatomical gift indorsement,
which must be reinstated upon the reinstatement of the license or card.
The form prepared by the Department of Transportation and incorporated in
its application shall be in all respects a valid document of anatomical
gift. Designation of intent to be a donor of an anatomical gift on the
driver license or identification card of an individual satisfies all
requirements for consent to make an anatomical gift and constitutes
permission to be placed on a registry.

(b) When requested by a procurement organization that has
established a statewide donor registry of donors in this state, the
department shall electronically transfer the name, address, birth date
and donor designation as listed on the driver license or identification
card of any person designated as a donor under this subsection. The
information transferred to a procurement organization shall be treated as
confidential by the procurement organization and may be used only to
expedite the making of anatomical gifts authorized by the donor.

(4) An anatomical gift by will takes effect upon death of the
testator, whether the will is probated or not probated. If, after death,
the will is declared invalid for testamentary purposes, the validity of
the anatomical gift is unaffected.

(5) A donor may amend or revoke an anatomical gift not made by will
only by:

(a) A signed statement;

(b) An oral statement made in the presence of two individuals;

(c) Any form of communication during a terminal illness or injury
addressed to a physician or surgeon;

(d) In the case of an anatomical gift made by driver license or
identification card application, written notification to the department;
or

(e) Purposeful destruction, cancellation or mutilation of the
document of anatomical gift in the case of an anatomical gift not made by
driver license or identification card. A donor who intentionally
destroys, cancels, or mutilates a document of anatomical gift shall
notify a procurement organization to instruct the organization to remove
the name of the donor from its registry. If the organization notified
does not maintain a registry of Oregon residents, the organization shall
notify any entity that maintains a registry of donors residing in this
state.

(6) The donor of an anatomical gift made by will may amend or
revoke the gift in the manner provided for amendment or revocation of
wills, or as provided in subsection (5) of this section.

(7) An anatomical gift that is not revoked by the donor before
death is irrevocable and:

(a) Does not require the consent or concurrence of any person after
the death of the donor.

(b) Shall not be subject to cancellation or substantial revision by
persons described in ORS 97.954 (1).

(8) In the absence of contrary indications by the donor, an
anatomical gift of a part is not a refusal to give other parts or a
limitation on an anatomical gift under ORS 97.954 or on a removal or
release of other parts under ORS 97.956.

(9) In the absence of contrary indications by the donor, a
revocation or amendment of an anatomical gift is not a refusal to make an
anatomical gift of a different part.

(10) If an individual has amended or revoked an anatomical gift
made by driver license or identification card, the department shall issue
a replacement license upon payment by the individual of the department’s
fee for reissuance of the license or card.

(11) Notwithstanding any other requirement of this section, a
license, card or document purporting to evidence the creation of a valid
anatomical gift under the laws of another state shall be valid in this
state absent evidence of revocation.

(12) Any anatomical gift validly made under ORS 97.275 (1993
Edition) prior to September 9, 1995, and not revoked shall continue in
effect for its original period of validity.

(13) An individual described in subsection (1) of this section or
any person authorized in ORS 97.954 (1) to make an anatomical gift of all
or any part of a decedent’s body may delegate such authority to any
person 18 years of age or older. Such delegation shall be in writing and
signed by the person delegating the authority. The person to whom the
authority is delegated shall have the same priority under ORS 97.954 (1)
as the person delegating the authority.

(14) If the individual described in subsection (1) of this section
issues more than one authorization or donation of anatomical gift for all
or any part of the individual’s body, only the most recent authorization
or donation shall be binding. [1995 c.717 §2; 1997 c.472 §5; 2005 c.505
§2]Note: See note under 97.950.(1) A person within the first applicable listed
class among the following listed classes that is available at the time of
death or, in the absence of actual notice of a contrary direction by the
decedent or actual notice of opposition by a member of the same class or
a member of a prior class, may make an anatomical gift of all or a part
of the body of a decedent for any authorized purpose:

(a) A person to whom the decedent has granted power of attorney;

(b) The spouse of the decedent;

(c) A son or daughter of the decedent 18 years of age or older;

(d) Either parent of the decedent;

(e) A brother or sister of the decedent 18 years of age or older;

(f) A guardian of the decedent at the time of death;

(g) A person in the next degree of kindred to the decedent;

(h) The personal representative of the estate of the decedent;

(i) The person nominated as the personal representative of the
decedent in the decedent’s last will; or

(j) A public health officer.

(2) No person, hospital or procurement organization shall accept a
gift made by an individual under subsection (1) of this section if:

(a) An individual in a prior class is available at the time of
death to make an anatomical gift;

(b) The individual proposing to make an anatomical gift knows of a
refusal or contrary indications by the decedent; or

(c) The individual proposing to make an anatomical gift knows of an
objection to making an anatomical gift by another member of the
individual’s class or a member of a prior class.

(3) An anatomical gift by an individual authorized under subsection
(1) of this section must be made by a document of anatomical gift signed
by the individual or the individual’s telegraphic, recorded telephonic or
other recorded message, or other form of communication from the
individual that is contemporaneously put in written form and signed by
the recipient of the communication.

(4) An anatomical gift by an individual authorized under subsection
(1) of this section may be revoked by any member of the same or a prior
class if, before procedures have begun for the removal of a part from the
body of the decedent, the physician, technician or enucleator removing
the part knows of the revocation. [1995 c.717 §3; 1997 c.472 §6; 1999
c.201 §2; 2005 c.505 §3]Note: See note under 97.950.(1) A medical examiner may release and permit the removal
of a part from a body within the examiner’s jurisdiction for
transplantation, therapy or research if:

(a) The examiner has received a request for the part from a
hospital, physician or procurement organization;

(b) The examiner does not know of a refusal or contrary indication
by the decedent or objection by a person having priority to act as listed
in ORS 97.954 (1);

(c) The person requesting the part has made a reasonable effort to
contact the person having priority to act as listed in ORS 97.954 (1);

(d) The removal of the part is by a physician or technician or, in
the case of eyes, by an enucleator, physician or technician;

(e) The removal does not interfere with any autopsy or
investigation;

(f) The removal is performed in accordance with accepted medical
standards; and

(g) The person performing the removal also performs a restoration
of the removed part, if appropriate.

(2) If the body is not within the jurisdiction of the medical
examiner, the local public health officer may release and permit the
removal of a part from a body in the local public health officer’s
custody for transplantation, therapy or research, if the requirements of
subsection (1)(a) to (g) of this section are met.

(3) An official releasing and permitting the removal of a part
shall retain, in the permanent death record of the decedent,
documentation of the person making the request, the date and purpose of
the request, and the person to whom it was released.

(4) For purposes of this section, “reasonable effort” means:

(a) The person requesting the part has attempted to contact the
person having priority to act as listed in ORS 97.954 (1), following
notification of the death by the medical examiner or other authority or
medical facility, and to obtain that person’s consent or objection to the
removal of the part requested;

(b) Unless the elapsed time from the notification of death would
render the part useless for the purpose intended, any attempt described
in paragraph (a) of this subsection that was unsuccessful has been
repeated at least two additional times by telephone; and

(c) The attempts shall be documented by the person requesting the
part, and the documentation shall be maintained in that person’s
permanent file. [1995 c.717 §4; 1997 c.472 §7; 1999 c.201 §3]Note: See note under 97.950.(1) At or near the time of
death of a hospitalized patient, the hospital administrator or a
representative designated by the administrator shall:

(a) Notify the appropriate procurement organization of the imminent
or actual death of the patient; and

(b) In collaboration with the procurement organization, ensure that
readily available persons listed in ORS 97.954 are informed of the donor
status of the patient and of the option to make or refuse to make an
anatomical gift under ORS 97.952 or 97.954. Contact must be made with
reasonable discretion and sensitivity to the circumstances of the persons
contacted. The person designated by the administrator to make a request
for an anatomical gift under this section must be a representative of a
procurement organization or a person who has had training offered or
approved by a procurement organization in the methodology for approaching
the family of potential donors.

(2) Circumstances permitting, a law enforcement officer,
firefighter, paramedic or other emergency rescuer or a funeral home
representative who finds an individual who is deceased shall:

(a) Make a reasonable search for a document of anatomical gift or
other information identifying the individual as a person who has made or
who has refused to make an anatomical gift; and

(b) As soon as is reasonably possible and if the information is
known, notify an appropriate procurement organization of the identity of
the deceased person and of persons listed in accordance with ORS 97.954.

(3) A person who fails to discharge the duties imposed by this
section is not subject to criminal or civil liability. [1995 c.717 §5;
1997 c.472 §8; 1999 c.201 §4; 2005 c.505 §4]Note: See note under 97.950.Delivery of a document of anatomical gift during the lifetime of
a donor is not required for the validity of an anatomical gift. If
delivery of a document of anatomical gift is desired, it may be deposited
in any hospital, procurement organization or registry office that accepts
it for safekeeping or for facilitation of procedures after death. On
request of an interested person, upon or after the death of a donor, the
person in possession shall allow the interested person to examine or copy
the document of anatomical gift. [1995 c.717 §6; 1997 c.472 §9]Note: See note under 97.950.(1) Rights of a procurement organization accepting an
anatomical gift are superior to rights of others except with respect to
autopsies required by law. A procurement organization may accept or
reject an anatomical gift. If a procurement organization accepts an
anatomical gift of an entire body, the organization, subject to the terms
of the gift, may allow embalming and use of the body in funeral services.
If the gift is of a part of a body, the procurement organization, upon
the death of the donor and before embalming, shall cause the part to be
removed without unnecessary mutilation. After removal of the part,
custody of the remainder of the body vests in the person under obligation
to dispose of the body.

(2) The time of death must be determined by a physician who attends
the donor at death or, if none, the physician who certifies the death.
Neither the physician who attends the donor at death nor the physician
who determines the time of death may participate in the procedures for
removing or transplanting a part.

(3) If there has been an anatomical gift, a technician may remove
any donated parts other than eyes and an enucleator may remove any
donated eyes after determination of death by a physician. [1995 c.717 §7]Note: See note under 97.950.(1) An anatomical gift authorizes any examination
necessary to assure medical acceptability of the gift for the purposes
intended, including but not limited to access to the decedent’s medical
chart and permission to test a sample of the decedent’s blood for
communicable diseases.

(2) ORS 97.950 to 97.964 are subject to the laws of this state
governing autopsies.

(3) A person, organization, hospital or institution that acts or
makes a good faith effort to act in accordance with ORS 97.950 to 97.964
or to determine the acceptability of an anatomical gift in accordance
with a protocol developed by a procurement organization is not liable for
those actions in a civil action or criminal proceeding.

(4) An individual who makes an anatomical gift under ORS 97.952 or
97.954 and the individual’s estate are not liable for any injury or
damage that may result from the making or the use of the anatomical gift.
[1995 c.717 §8; 2005 c.505 §5]Note: See note under 97.950. A
person named executor who carries out the gift of the testator made under
the provisions of ORS 97.950 to 97.964 before issuance of letters
testamentary or under a will which is not admitted to probate shall not
be liable to the surviving spouse or next of kin for performing acts
necessary to carry out the gift of the testator. [Formerly 97.295] (1) The
procuring, processing, furnishing, distributing, administering or using
of any part of a human body for the purpose of injecting, transfusing or
transplanting that part into a human body is not a sales transaction
covered by an implied warranty under the Uniform Commercial Code or
otherwise.

(2) As used in this section, “part” means organs or parts of
organs, tissues, eyes or parts of eyes, bones, arteries, blood, other
fluids and any other portions of a human body. [Formerly 97.300]FEDERAL AID FOR CEMETERIES(1) In addition to any other duties of the Department of
Transportation, the department may apply for, accept and expend, use or
dispose of moneys and property received from the federal government for
the purpose of establishing any program of restoration, care, maintenance
and preservation of cemeteries. The department shall administer any funds
received pursuant to this section in accordance with the conditions
established by the federal government.

(2) In carrying out the provisions of subsection (1) of this
section the Department of Transportation may contract or consult with any
nonprofit corporation established for the purpose of promoting cemetery
care and maintenance. [Formerly 97.930]PENALTIES(1) Violation of ORS 97.160 is a misdemeanor and
upon conviction is punishable by a fine not exceeding $100.

(2) Every officer, agent or employee of this state or of any
county, city or any other municipal subdivision thereof who willfully
neglects to notify the Demonstrator of Anatomy of the existence of a body
as required by ORS 97.170 to 97.210 or who refuses to deliver possession
of such body according to the provisions of ORS 97.170 to 97.210 or who
mutilates or permits any such body to be mutilated so that it is not
valuable for anatomical purposes or who refuses or neglects to perform
any of the duties enjoined upon the officer, agent or employee by ORS
97.170 to 97.210, is guilty of a misdemeanor and upon conviction is
punishable by a fine of not more than $50 for each offense.

(3) Violation of ORS 97.520, 97.530 or 97.540 is a misdemeanor.

(4) Any person, association or corporation who operates a cemetery,
mausoleum or columbarium contrary to the provisions of ORS 97.020 to
97.040, 97.110 to 97.130, 97.145, 97.150, 97.220, 97.310 to 97.360 (1),
97.440, 97.510 to 97.560, 97.710, 97.720, 97.810, 97.820, 97.830 and
97.840 to 97.860 is guilty of maintaining a nuisance and, upon
conviction, is punishable by a fine not exceeding $500 or by imprisonment
in the county jail for not more than six months, or both.

(5)(a) Violation of ORS 97.745 is a Class C felony.

(b) In addition to any other sentence provided by law for criminal
violations of ORS 97.745, the judge shall impose a penalty not to exceed
$10,000 on any person convicted of a criminal violation of ORS 97.745.

(6) In addition to the penalty of subsection (5) of this section,
any native Indian artifacts or human remains taken by, or in possession
of, any person sentenced under subsection (5) of this section and all
equipment used in the violation may be ordered forfeited by the court in
which conviction occurs, and may be disposed of as the court directs.
Violation of any of the provisions
of ORS 97.937 is punishable, upon conviction, by a fine not exceeding
$1,000, or imprisonment in the county jail not exceeding one year, or
both. [Formerly 128.990]Note: 97.992 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 97 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. Violation of
any of the provisions of ORS 97.931, 97.933, 97.941 or 97.943 is
punishable as a Class A misdemeanor. [Formerly 128.991; 2003 c.362 §9]Note: 97.994 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 97 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.

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USA Statutes : oregon