CHAPTER 31. FUNERAL SERVICES
- Subchapter I. Board of Funeral Services
- Subchapter II. License and registration; limited license; establishment permit
- Subchapter III. Other Provisions
TITLE 24
Professions and Occupations
CHAPTER 31. FUNERAL SERVICES
Subchapter I. Board of Funeral Services
§ 3100. Objectives.
The primary objective of the Board of Funeral Services, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered.
The secondary objectives of the Board are to maintain minimum standards of practitioner competency, and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners, licensed and formerly licensed. (66 Del. Laws, c. 225, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, §§ 1, 2.)
§ 3101. Definitions.
The following words, terms and phrases, when used in this chapter shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning:
(1) "Board" shall mean the State Board of Funeral Services established in this chapter.
(2) "Burial" shall mean the interment of human remains.
(3) "Cremation" shall mean the process of burning human remains to ashes.
(4) "Division" shall mean the State Division of Professional Regulation.
(5) "Funeral director" shall mean a person engaged in the care of human remains or in the disinfecting and preparing by embalming of human remains for the funeral service, transportation, burial, entombment or cremation, and who shall file all death certificates or permits as required by Chapter 31 of Title 16.
(6) "Funeral establishment" shall mean any place used in the care and preparation of human remains for funeral service, burial, entombment or cremation; said place shall also include areas for embalming, the convenience of the bereaved for viewing and other services associated with human remains. A funeral establishment shall also include a place or office in which the business matters associated with funeral services are conducted. Satellite funeral establishments existing as of May 12, 1988, shall not be required to include an area for embalming.
(7) "Funeral services" shall mean those services rendered for the disinfecting, embalming, burial, entombment or cremation of human remains, including the sale of those goods and services usual to arranging and directing funeral services.
(8) "Intern" shall mean a person, duly registered with the Board, engaged in training to become a licensed funeral director in this State under the direction and personal supervision of a State-licensed funeral director.
(9) "Nonresident funeral director" shall mean a funeral director licensed in another state, district, territory or foreign country.
(10) "Person" shall mean a corporation, company, association and partnership, as well as an individual.
(11) "Practitioner" shall mean a funeral director.
(12) "Substantially related" means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the provision of funeral services. (66 Del. Laws, c. 225, § 1; 69 Del. Laws, c. 147, § 1; 71 Del. Laws, c. 460, § 1; 74 Del. Laws, c. 262, § 64.)
§ 3102. Board of Funeral Services.
(a) There is created a State Board of Funeral Services which shall administer and enforce this chapter.
(b) The Board shall consist of 7 members appointed by the Governor who are residents of this State: Four of whom shall be funeral directors licensed under this chapter and 3 public members. The public members shall not be, nor ever have been, funeral directors, nor members of the immediate family of a funeral director, shall not have been employed by a funeral director, shall not have a material interest in the providing of goods and services to funeral directors; nor have been engaged in an activity directly related to funeral services. The public members shall be accessible to inquiries, comments and suggestions from the general public.
(c) Except as provided in subsection (d) of this section, each member shall serve a term of 3 years, and may succeed himself or herself for 1 additional term, provided; however that, where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor.
(d) A person who has never served on the Board may be appointed to the Board for 2 consecutive terms; but, no such person shall thereafter be eligible for 2 consecutive appointments. No person, who has been twice appointed to the Board or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 year has expired since such person last served.
(e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such an amendment or revision amends this section to permit such an appointment.
(f) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, malfeasance, misconduct, incompetency or neglect of duty. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.
(g) Any member who is absent without adequate reason for 3 consecutive meetings, or fails to attend at least half of all regular business meetings during any calendar year, shall be guilty of neglect of duty.
(h) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, according to Division of Professional Regulation policy, and in addition shall receive not more than $50 for each meeting attended but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.
(i) No member of the Board, while serving on the Board, shall hold elective office in any local, state or national professional funeral services association; shall not serve as the head of a professional funeral services association's political action (PAC) committee; nor shall any Board member have any financial interest in any funeral services college, school or cemetery.
(j) Chapter 58 of Title 29 shall apply to all members of the Board.
(k) No member of the Board shall in any manner whatsoever discriminate against any applicant or person holding or applying for a license to practice funeral services by reason of sex, race, color, age, creed or national origin.
(l) No member of the Board shall participate in any action of the Board involving directly or indirectly any person related in any way by blood or marriage to said member.
(m) No member of the Board shall be subject to, and shall be immune from, claims, suits, liability, damages or any other recourse, civil or criminal, arising from any act or proceeding, decision or determination undertaken, or performed, or recommendation made, so long as such member of the Board acted in good faith and without malice in carrying out the responsibilities, authority, duties, powers and privileges of the office conferred by law upon the member under this chapter, or any other provisions of Delaware or federal law or rules or regulations or duly adopted rule or regulation of the Board. Good faith is presumed unless otherwise proven and malice is required to be proven by the complainant. (66 Del. Laws, c. 225, § 1; 67 Del. Laws, c. 368, § 20; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, §§ 3, 4.)
§ 3103. Organization; meetings; officers; quorum.
(a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, and at such times as the President deems necessary; or, at the request of a majority of the Board members.
(b) The Board shall elect annually a President and Secretary. Each officer shall serve for 1 year, and shall not succeed himself or herself for more than 2 consecutive terms.
(c) A majority of members shall constitute a quorum for the purpose of transacting business; and no disciplinary action shall be taken without the affirmative vote of at least 4 members of the Board.
(d) Minutes of all meetings shall be recorded, and copies shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The expense of preparing any transcript shall be incurred by the person requesting it. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3104. Records.
The Division of Professional Regulation shall keep a register of all approved applications for license as a funeral director and registration as an intern, and registration of establishment permits, and complete records relating to meetings of the Board, examinations, rosters, changes and additions to the Board's rules and regulations, complaints, hearings and such other matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board. (71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, § 5.)
§ 3105. Powers and duties.
(a) The Board of Funeral Services shall have the authority to:
(1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act of this State [Chapter 101 of Title 29]. Each rule or regulation shall implement or clarify a specific section of this chapter.
(2) Designate the application form to be used by all applicants, and to process all applications;
(3) Designate the written, standardized examination on funeral services, prepared by an independent testing service, recognized by the Conference of Funeral Service Examining Boards, or its successor, and approved by the Division. The examination shall be taken by all persons applying for licensure, except those applicants who qualify for licensure by reciprocity;
(4) Designate a written, validated examination, prepared by an independent testing service and approved by the Division, based solely on the laws of Delaware governing the professional of funeral services. The Division shall administer the state examination;
(5) Provide for the administration of examinations, including notice and information to applicants;
(6) Establish minimum education, training and experience requirements for licensure as funeral directors;
(7) Establish minimum requirements, and issue permits for funeral establishments that meet the requirements of § 3117 of this title;
(8) Evaluate the credentials of all persons applying for a license to practice funeral services in Delaware in order to determine whether such persons meet the qualifications for licensing set forth in this chapter;
(9) Grant licenses to, and renew licenses of, all persons who meet the qualifications for licensure; and, register persons who are fulfilling the licensure experience requirement under the personal supervision of a state-licensed funeral director;
(10) Establish by rule and regulation continuing education standards required for license renewal for those practitioners under 65 years of age; provided however, that in establishing rules for continuing funeral services education, the Board shall consider potential economic hardship on single practitioners and other licensees, and shall not impose rules that are likely to place undue economic hardship on licensees. License renewal shall not consist of, nor by dependent upon, retesting for those practitioners under 65 years of age; provided however, that in establishing rules for continuing funeral services education, the Board shall consider potential economic hardship on single practitioners and other licensees, and shall not impose rules that are likely to place undue economic hardship on licensees;
(11) Evaluate certified records to determine whether an applicant for licensure, who previously has been licensed, certified or registered in another jurisdiction to practice funeral services, has engaged in any act or offense that would be grounds for disciplinary action under this chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicant for such acts or offenses;
(12) Refer all complaints from licensees and the public concerning practitioners, or concerning practices of the Board or of the profession, to the Division of Professional Regulation for investigation pursuant to § 8735 of Title 29; and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint;
(13) Conduct hearings and issue orders in accordance with procedures established pursuant to this chapter, Chapter 101 of Title 29 and § 8735 of Title 29. Where such provisions conflict with this chapter, this chapter shall govern. The Board shall determine whether or not a practitioner shall be subject to a disciplinary hearing, and if so, shall conduct such hearing in accordance with this chapter and the Administrative Procedures Act;
(14) Where it has been determined after a disciplinary hearing, that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed.
(b) The Board of Funeral Services shall promulgate regulations specifically identifying those crimes which are substantially related to the provision of funeral services. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, §§ 6-10; 74 Del. Laws, c. 262, § 65.)
TITLE 24
Professions and Occupations
CHAPTER 31. FUNERAL SERVICES
Subchapter II. License and registration; limited license; establishment permit
§ 3106. License; registration required; responsibility.
(a) No person shall engage in the practice of funeral services or hold himself or herself out to the public in this State as being qualified to practice funeral services; or use in connection with that person's name, or display any sign or advertise in any manner as being a funeral director or provide funeral services, or otherwise assume or use, any title or description conveying or tending to convey the impression that the person is qualified to practice funeral services, unless such person has been duly licensed under this chapter.
(b) Practitioners regulated under this chapter shall observe and be subject to all federal, state and municipal regulations relating to the control of contagious and infectious diseases, and any and all matters pertaining to public health, reporting to the proper health office the same as other practitioners.
(c) Whenever a license to practice as a funeral director in this State has expired or been suspended or revoked, it shall be unlawful for the person to practice funeral services in this state.
(d) No person shall act as an intern or hold himself or herself out as a funeral services intern unless such person has been duly registered by the Board under this chapter. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3107. Qualifications of applicants for licensure; judicial review; report to Attorney General.
(a) An applicant who is applying for licensure as a funeral director under this chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person:
(1) Has graduated from an accredited high school, or its equivalent, and has received an Associate Degree or its equivalent in mortuary science, consisting of 60-credit hours, from a school fully accredited by the American Board of Funeral Services Education, or its successor.
(2) Has achieved the passing score, as established by an independent testing service, on the written, standardized examination on funeral services recognized by the Conference of Funeral Service Examining Boards, or its successor.
(3) Has achieved the passing score, as established by an independent testing service, on a written, validated examination based solely on the laws of Delaware governing the profession of funeral services. In conjunction with the independent testing service, said examination shall be administered by the Division of Professional Regulation, which shall have sole authority to contract for the validated examination.
(4) Has satisfactorily completed an internship in this state of 1 year's duration, under the auspices of a licensed Delaware funeral director. An applicant is responsible for arranging the internship. If, after contacting 20 firms, the applicant is unable to obtain an internship within 6 months, the applicant shall so stipulate in an affidavit presented to the Board. The Board shall determine whether the applicant has pursued a position as intern to the applicant's fullest capability. The Board shall have 6 months from the date it receives the affidavit to place the applicant in an internship. If no position has been made available, the applicant shall be issued a license upon satisfaction of all other requirements for licensure.
(5) Shall not have been the recipient of any administrative penalties regarding the applicant's practice of funeral services, including but not limited to fines, formal reprimands, license suspensions or revocation (except for license revocations for nonpayment of license renewal fees), probationary limitations and/or has not entered into any "consent agreements" which contain conditions placed by a Board on the applicant's professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure.
(6) Shall not have any impairment related to drugs, alcohol or a finding of mental incompetence by a physician that would limit the applicant's ability to undertake the practice of funeral services in a manner consistent with the safety of the public.
(7) Shall not have a criminal conviction record, nor pending criminal charge relating to an offense, the circumstances of which substantially relate to the practice of funeral services. Applicants who have criminal conviction records or pending criminal charges shall require appropriate authorities to provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of funeral services. However, after a hearing, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(7) of this section, if it finds all of the following:
a. More than 5 years have elapsed since the applicant has fully discharged all imposed sentences. As used herein, the term "sentence" includes, but is not limited to, all periods of modification of a sentence, probation, parole or suspension. However, sentence does not include fines, restitution or community service, as long as the applicant is in substantial compliance with such fines, restitution and community service.
b. The applicant is capable of practicing funeral services in a competent and professional manner.
c. The granting of the waiver will not endanger the public health, safety or welfare.
(8) Shall provide such information as may be required on an application form designed and furnished by the Board and approved by the Division of Professional Regulation. No application form shall require a picture of the applicant, except where required for verification of identity for testing purposes, require information relating to citizenship, place of birth or length of state residence or require personal references. The applicant shall not be required to submit a police report as a condition of application for licensure or internship.
(b) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.
(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification, has imposed higher or different standards for that person than for other applicants or licensees, or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.
(d) The Board shall not violate an applicant's rights during the application and internship process for licensure as a funeral director in this State. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, §§ 11-14; 74 Del. Laws, c. 262, § 66; 75 Del. Laws, c. 436, § 35.)
§ 3108. Limited license.
Upon payment to the Board of a fee, established by the Division, and completion of an application on forms provided by the Board, the Board shall issue a limited license to a person, who is validly licensed as a funeral director by another state of the United States, its possessions, territory or the District of Columbia; provided, that a similar privilege is granted by that jurisdiction to Delaware licensed funeral directors. A limited license will allow the licensee to make a removal of a dead human body in this State; to return the body to another state or country; to return dead bodies from another state or country to this State for final disposition; to complete the family history portion of the death certificate; to sign the death certificate in the licensee's capacity as a licensed funeral director; and to execute any other procedures necessary to arrange for the final disposition of a dead human body. (71 Del. Laws, c. 460, § 1.)
§ 3109. Reciprocity.
(a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present proof of current licensure in good standing in another state, the District of Columbia or territory of the United States, whose standards for licensure are substantially similar to those of this State, as determined by the board, and who meets the following criteria:
(1) The applicant's license is in "good standing" is defined in § 3107(a)(5) through (7) of this title; and
(2) The applicant has achieved a passing score on the exam required by § 3107(a)(3) of this title.
(b) An applicant, who is licensed in a state whose standards are not substantially similar to those of this State, shall have practiced for at least 3 of the past 5 years in another jurisdiction; provided however, that the applicant meets all other qualifications for reciprocity in this section.
(c) An applicant from a state that separately licenses funeral directors and embalmers must have both licenses to qualify for licensure under subsection (b) of this section.
(d) It shall be the responsibility of the applicant to provide verification of all information required by § 3107 of this title. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, § 15; 75 Del. Laws, c. 294, § 1; 75 Del. Laws, c. 436, § 36.)
§ 3110. Fees.
The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division of Professional Regulation in its service on behalf of the Board. There shall be a separate fee charged for each service or activity, but no fee shall be charged for a purpose not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the licensure biennium. (66 Del. Laws, c. 225, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3111. Licensure; renewal of license; lapsed license; inactive status; special exception.
(a) The Board shall issue a license to each applicant, who meets the requirements of this title for licensure as a funeral director and who pays the fees established under § 3110 of this title. Prior to practicing in this State, each applicant shall file for and obtain an occupational license from the Division of Revenue in accordance with Chapter 23 of Title 30.
(b) Each license shall be renewed biennially, in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board.
(c) Any licensee whose license lapses as a result of a failure to renew may regain the license within 12 months of such lapse upon payment to the Board of a fee established by the Division, and evidence of successful completion of continuing education courses required by the Board.
(d) Any licensee, upon written request to the Board, may be placed on inactive status not to exceed 5 years. Such person may reenter practice upon notification to the Board of an intention to do so, provided said person has satisfied all continuing education requirements prescribed by the Board. The fee to reenter practice shall be in accordance with § 3110 of this title.
(e) Notwithstanding subsection (b) of this section, in the event a funeral director, who was previously licensed in Delaware, and who allowed that funeral director's license to lapse for a period in excess of 12 months, is applying for licensure under this section, the Board shall grant a license to such applicant, subject, however, to completion of the continuing education requirements set forth in subsection (b) of this section; formal submission of a completed written application on forms provided by the Board; successful completion of the state law examination required by § 3105 of this title; and payment of a reinstatement fee established by the Division. (66 Del. Laws, c. 225, § 1; 67 Del. Laws, c. 397, § 1; 68 Del. Laws, c. 36, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, § 16.)
§ 3112. Grounds for discipline.
(a) A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 3114 of this title, if, after a hearing, the Board finds that the funeral director has:
(1) Employed or knowingly cooperated in fraud or material deception in order to acquire a license as a funeral director; has impersonated another person holding a license, or allowed another person to use that practitioner's license, or aided or abetted a person not licensed as a funeral director to represent himself or herself as a funeral director;
(2) Illegally, incompetently or negligently practiced funeral services;
(3) Been convicted of a crime that is substantially related to the provision of funeral services or any offense which would limit the ability of the practitioner to carry out the practitioner's professional duties with due regard for the health and safety of the public; a copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor;
(4) Excessively used or abused drugs either in the past or currently; excessive use or abuse of drugs shall mean any use of narcotics, controlled substances, or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs the practitioner's ability to perform the work of a funeral director;
(5) Engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities;
(6) Violated a lawful provision of this chapter, or any lawful regulation established thereunder;
(7) Had that practitioner's license as a funeral director suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record; and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute one or more of the acts defined in this chapter. Every person licensed as a funeral director in this State shall be deemed to have given consent to the release of this information by the Board of Funeral Services or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses;
(8) Failed to notify the Board that the practitioner's license as a funeral director in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof;
(9) A physical condition such that the performance of funeral services is or may be injurious or prejudicial to the public; or
(10) Has solicited a customer or potential customer to grant a power of attorney to the funeral director, or a business associate, employee, or family member of the funeral director, or to make any of the foregoing an heir of the customer or potential customer.
(b) Where a practitioner fails to comply with the Board's request that the practitioner attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have the jurisdiction to issue such order.
(c) Subject to this chapter and subchapter IV of Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board, and no practitioner's right to practice funeral services shall be limited by the Board, until such practitioner has been given notice and an opportunity to be heard in accordance with the Administrative Procedures Act. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, §§ 17, 18; 74 Del. Laws, c. 262, § 67; 75 Del. Laws, c. 238, § 1.)
§ 3113. Complaints.
All complaints shall be received and investigated by the Division of Professional Regulation in accordance with § 8735 of Title 29, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation.
When it is determined that an individual is engaging, or has engaged, in the practice of funeral services, or is using the title "funeral director" and is not licensed under the laws of this State, the Board shall apply to the Office of the Attorney General to issue a cease and desist order after formally warning the unlicensed practitioner in accordance with this chapter.
Any complaints involving allegations of unprofessional conduct or incompetence shall be investigated by the Division of Professional Regulation. (66 Del. Laws, c. 225, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3114. Disciplinary sanctions.
(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one or more of the conditions or violations set forth in § 3112 of this title applies to a practitioner regulated by this chapter:
(1) Issue a letter of reprimand;
(2) Censure a practitioner;
(3) Place a practitioner on probationary status, and require the practitioner to:
a. Report regularly to the Board upon the matters which are the basis of the probation;
b. Limit all practice and professional activities to those areas prescribed by the Board;
(4) Suspend any practitioner's license;
(5) Revoke any practitioner's license;
(6) Impose a monetary penalty not to exceed $500 for each violation.
(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies which required such action have been remedied.
(c) The Board may temporarily suspend a practitioner's license in advance of a final adjudication, during the appeals process, but, only in cases where there is clear and immediate danger to the health and safety and welfare of the public if the licensee is allowed to continue to practice. Such suspension may be appealed to Superior Court.
(d) Where a license has been suspended due to a disability of the licensee, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee is able to practice with reasonable skill and safety.
(e) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this chapter. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, § 19.)
§ 3115. Hearing procedures.
(a) If a complaint is filed with the Board pursuant to § 8735 of Title 29, alleging violation of § 3112 of this title, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing shall be conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29.
(b) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this chapter as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. The Board's decision shall be mailed immediately to the practitioner.
(c) Where the practitioner is in disagreement with the action of the Board, the practitioner may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to the practitioner. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with § 10144 of Title 29. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3116. Reinstatement of a suspended license; removal from probationary status; replacement of license.
(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation.
(b) Where a license or registration has been suspended due to the licensee's inability to practice pursuant to this chapter, the Board may reinstate such license, if, after a hearing, the Board is satisfied that the licensee is again able to perform the essential functions of a funeral director, with or without reasonable accommodations; and/or, there is no longer a significant risk of substantial harm to the health and safety of the individual or others.
(c) Applicants for reinstatement must pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this chapter may also be required, as appropriate.
(d) A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. A charge shall be made for such issuance. (71 Del. Laws, c. 460, § 1.)
TITLE 16
Health and Safety
Vital Statistics
CHAPTER 31. REGISTRATION OF BIRTHS, DEATHS, MARRIAGES, DIVORCES, ANNULMENTS AND ADOPTIONS
Subchapter III. Burial, Removal or Cremation of Dead Bodies
§ 3151. Permit for removal, burial or other disposition; foreign permits; prerequisites for permit.
When a death or a fetal death occurs or a dead body is found, the body shall not be disposed of until the burial/transit permit is completed. Said permit is required to accompany the body and is to be:
(1) Given to the sexton of the cemetery when the body is interred.
(2) Retained by the funeral director when the cemetery has no sexton.
(3) Retained with the ashes in cases of cremation, or by the funeral director if so desired. (27 Del. Laws, c. 84, § 10; Code 1915, § 814; 28 Del. Laws, c. 60, § 1; Code 1935, § 797; 44 Del. Laws, c. 69, § 1; 48 Del. Laws, c. 319, § 1; 16 Del. C. 1953, § 3151; 52 Del. Laws, c. 88, § 4; 68 Del. Laws, c. 274, § 1.)
§ 3152. Burial/transit permits for shipment of corpses -- Required.
No common carrier shall receive for shipment from any point within this State to any other point either within or without this State any dead human body, unless the funeral director or person acting as such presents a completed burial/transit permit as provided in § 3151 of this title. (26 Del. Laws, c. 75; Code 1915, § 770; Code 1935, § 776; 16 Del. C. 1953, § 3153; 68 Del. Laws, c. 274, § 1.)
§ 3153. Disinterment -- Rules and regulations.
No body or stillborn fetus shall be disinterred within the State except upon a permit granted by the State Registrar of Vital Statistics. The forms of disinterment permits shall be prepared by the Office of Vital Statistics. Disinterment and removal must be conducted under the personal supervision of a licensed funeral director. (68 Del. Laws, c. 274, § 1.)
§ 3154. Authorization for disinterment and reinterment.
(a) Authorization. -- A permit for disinterment and reinterment of a dead body or fetus shall be issued by the State Registrar upon receipt of a notarized application/authorization signed by the next-of-kin and the person who is in charge of the disinterment, or upon receipt of an order of a court of record of this state directing such disinterment, or upon notarized written application of the Attorney General to request a special disinterment permit for legal purposes.
(b) Mass disinterment and reinterment. -- Upon receipt of a court order, a signed and notarized permission of the next-of-kin of all decedents, or a signed and notarized application for disinterment for legal purposes, the State Registrar may issue 1 permit for disinterment and reinterment of all remains in a mass disinterment provided that, insofar as possible, the remains of each body be identified and the place of disinterment and reinterment specified.
(c) Nature of permit. -- The authorization issued in accordance with the statutes and regulations governing disinterment shall be permission for disinterment, transportation and reinterment.
(d) Fee for permit. -- The Department shall receive a fee not to exceed $10 for each disinterment/reinterment permit issued. (68 Del. Laws, c. 274, § 1; 70 Del. Laws, c. 149, § 145.)
§ 3155. Permits for disinterment of bodies buried in Kent or Sussex County before January 1, 1893.
The State Registrar of Vital Statistics through the central office or any of the county vital statistics offices, upon application to and the payment of the usual fee to any or either of them, shall issue a permit to any relative of any deceased person buried prior to January 1, 1893, and now remaining in private, family or old and neglected burying grounds in Sussex County and Kent County for the disinterment of the remains and the reinterment of the remains in public or private cemeteries or any other chosen or designated place in Kent County or Sussex County or without the State, the same as if the application had been made by a duly licensed undertaker. Upon obtaining the permit, the relative is vested with the same authority as a duly licensed undertaker in the disinterment and reinterment of the remains including the securing of vaults and providing for all other necessary arrangements in connection therewith. (Code 1915, § 812a; 38 Del. Laws, c. 47, § 1; Code 1935, § 889; 16 Del. C. 1953, § 3158; 68 Del. Laws, c. 274, § 1.)
§ 3156. Disinterment from condemned land.
The Department shall modify and relax its regulations and restrictions relative to the disinterring and reinterring of dead bodies, including the securing of separate disinterment and transfer permits of the bodies in those cases where the bodies are in public or private burying grounds which have been condemned by this State or the United States government for the purposes of public improvement, in order to enable the carrying into effect of complete removals in such cases to the full extent that the same can be accomplished, in the opinion of the Department, by licensed undertakers under its supervision and without jeopardizing the public health. (41 Del. Laws, c. 196; 16 Del. C. 1953, § 3159; 68 Del. Laws, c. 274, § 1; 70 Del. Laws, c. 149, § 146.)
§ 3157. Cremation; prohibited except in licensed crematory.
No person shall destroy or dispose of by burning in this State the body of an individual dead from any cause, except in a crematorium or crematory licensed for this express purpose and under the conditions provided in §§ 3158-3164 of this title. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3160; 68 Del. Laws, c. 274, § 1.)
§ 3158. Crematory; approval for construction; requirements; inspection.
(a) A person, firm, organization or association desiring to acquire, erect, or construct a crematory shall first obtain approval from the Department of Natural Resources and Environmental Control.
(b) The crematory shall be constructed in accordance with regulations adopted under Chapters 60 and 79 of Title 7 and shall not be located, managed, or conducted at any time in such a way to be a public nuisance.
(c) The crematory shall be subject at all times to inspection by the Department of Natural Resources and Environmental Control, the Department of Health and Social Services, and by such officers of the state law enforcement departments as may desire to inspect it. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3161; 68 Del. Laws, c. 274, § 1; 70 Del. Laws, c. 149, § 147; 74 Del. Laws, c. 293, § 1.)
§ 3159. Permit for cremation; issuance, retention and inspection.
(a) A body may be cremated only after the preparation of a special cremation permit signed by the chief medical examiner or an assistant or deputy medical examiner. In the presentation of the cremation permit to the chief medical examiner or the chief medical examiner's representative for signature, the permit must be accompanied by a death certificate signed by the attending physician and by a cremation authorization signed by the next-of-kin or legal representative of the deceased. The signature of the chief medical examiner or the chief medical examiner's representative to the cremation permit shall constitute an affirmation that there is no medical reason why the cremation should not take place. The chief medical examiner or an assistant or deputy medical examiner shall have the authority to hold the remains of the deceased pending any investigation into the cause and manner of death.
(b) One copy of the cremation permit shall be retained by the person, firm, corporation or association conducting the crematory and shall be produced for inspection or other purposes when asked for by the inspecting authority. A second copy of the cremation permit shall accompany the death certificate when it is filed in the Office of Vital Statistics. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3162; 65 Del. Laws, c. 413, § 1; 68 Del. Laws, c. 164, § 1; 68 Del. Laws, c. 274, § 1; 70 Del. Laws, c. 186, § 1.)
§ 3160. Report of cremation.
Within 24 hours after the cremation is completed a report indicating the name of the individual, the individual's address while alive, the date and cause of death, the names of the individuals signing the permit, the date of the cremation and the disposal of the ashes shall be forwarded by the person in charge of the crematory to the central Office of Vital Statistics. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3163; 68 Del. Laws, c. 274, § 1; 70 Del. Laws, c. 186, § 1.)
§ 3161. Delivery, transportation and disposal of ashes.
The ashes resulting from the cremation of a body may be delivered by the attendants of the crematory to any member of the family of the deceased designated to receive them or to the person arranging for the cremation. After this delivery, they may be transported in any way in the State and disposed of in such a way as is desired by the person receiving them. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3164; 68 Del. Laws, c. 274, § 1.)
§ 3162. Witnesses at cremation.
A representative of the family or some individual accredited to act as representative of the family of the individual being cremated may be present at the time the cremation is being carried out. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3165; 68 Del. Laws, c. 274, § 1.)
§ 3163. Permit where death occurs in this State and cremation takes place elsewhere.
The provisions of § 3159 of this title, respecting the signatures of the chief medical examiner or an assistant or deputy medical examiner and by the Attorney General or a deputy attorney general, are required in respect of the cremation of the body of an individual dying in the State but removed to any other state for the purpose of cremation. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3166; 68 Del. Laws, c. 274, § 1.)
§ 3164. Cremation in this State when death occurred elsewhere.
The cremation in this State of the bodies of persons dying in other states is permissible if all the legal requirements of the state in which the death occurred have first been complied with. (25 Del. Laws, c. 66, § 9; 27 Del. Laws, c. 84, § 14; 27 Del. Laws, c. 85, § 15; Code 1915, § 818; Code 1935, § 801; 44 Del. Laws, c. 69, § 1; 16 Del. C. 1953, § 3167; 68 Del. Laws, c. 274, § 1.)
TITLE 12
Decedents' Estates and Fiduciary Relations
Wills
CHAPTER 2. GENERAL PROVISIONS
Subchapter III. Disposition of a Person's Last Remains
§ 260. Definitions.
As used in this subchapter, unless the context otherwise requires:
(1) "Adult" means a natural person 18 years of age or older.
(2) "Declarant" means a competent adult who signs a declaration pursuant to the provisions of this article.
(3) "Declaration instrument" means a written instrument, signed by a declarant, governing the disposition of the declarant's last remains and the ceremonies planned after a declarant's death, including a document governing the disposition of last remains under this title. Such a declaration may be made within a prepaid funeral, burial, or cremation contract with a mortuary or crematorium.
(4) "Interested person" means the deceased's spouse, parent, adult child, sibling, grandchild, and other person designated in a declaration instrument.
(5) "Last remains" means the deceased's body or cremains after death.
(6) "Reasonable under the circumstances", applied to the declarant's instructions, means appropriate in relation to the declarant's finances, cultural or family customs, and religious or spiritual beliefs. "Reasonable under the circumstances" implies consideration of factors that include, but are not limited to, a prepaid funeral, burial or cremation plan of the declarant; the size of the declarant's estate; the declarant's cultural or family customs; the declarant's religious or spiritual beliefs; and the known or reasonably ascertainable creditors of the declarant.
(7)a. "Third party" means a person:
1. Who is requested by a declaration instrument to act in good faith in reliance upon such instrument;
2. Who is delegated discretion over ceremonial or dispositional arrangements in a declaration instrument under § 264 of this title; or
3. Who is delegated discretion over ceremonial or dispositional arrangements in a declaration instrument.
b. "Third party" includes, but is not limited to, a funeral director, mortician, mortuary, crematorium, or cemetery.
(8) "Unreasonable" means an act that is clearly unreasonable, pursuant to the definition of "reasonable under the circumstances" under paragraph (6) of this section. (74 Del. Laws, c. 295, § 1.)
§ 261. Limitations.
This subchapter shall not be construed to:
(1) Invalidate a declaration instrument or will, codicil, trust, power of appointment or power of attorney;
(2) Invalidate any act of an agent, guardian, or conservator;
(3) Affect any claim, right or remedy that accrued prior to June 30, 2004;
(4) Authorize or encourage acts that violate the constitution, statutes, rules, case law or public policy of Delaware or the United States;
(5) Abridge contracts;
(6) Modify the standards, ethics or protocols of the practice of medicine;
(7) Compel or authorize a health care provider or health care facility, to administer medical treatment that is medically inappropriate or contrary to federal or other Delaware law; or
(8) Permit or authorize euthanasia or an affirmative or deliberate act to end a person's life. (74 Del. Laws, c. 295, § 1.)
§ 262. Declaration of Disposition of Last Remains.
The declarant may specify, in a declaration instrument, any 1 or more of the following:
(1) The disposition to be made of the declarant's last remains;
(2) Who may direct the disposition of the declarant's last remains;
(3) The ceremonial arrangements to be performed after the declarant's death;
(4) Who may direct the ceremonial arrangement after the declarant's death; or
(5) The rights, limitations, immunities, and other terms of third parties dealing with the declaration instrument. (74 Del. Laws, c. 295, § 1.)
§ 263. Reliance upon Declaration instruments.
(a) A third party who acts in good faith reliance on a declaration instrument that is legally executed shall not be subject to civil liability to any greater extent than if the third party were dealing directly with the declarant as a fully competent and living person. Such third party shall not be subject to criminal liability or regulatory sanction for such reliance.
(b) A third party who deals with a declaration instrument may presume in the absence of actual knowledge to the contrary:
(1) That the declaration instrument was validly executed; and
(2) That the declarant was competent at the time the instrument was executed.
(c) A third party who reasonably relies on a declaration instrument shall not be civilly or criminally liable for the proper application of property delivered or surrendered to comply with the declarant's instructions in the declaration instrument.
(d) The directions of a declarant expressed in a declaration instrument shall be binding on all persons as if the declarant were alive and competent.
(e) A third party who has reasonable cause to question the authenticity or validity of a declaration instrument may promptly and reasonably seek additional information from the person proffering such declaration or from other involved persons. A third party may require exhibition of the original declaration instrument or a notarized copy.
(f) A third party seeking to fulfill a declarant's intent regarding disposition of last remains or ceremonial arrangements may disregard such intent if such intent is unreasonable under the circumstances. (74 Del. Laws, c. 295, § 1.)
§ 264. Right to dispose of remains.
(a) The right to control disposition of the last remains or ceremonial arrangements of a decedent vests in and devolves upon the following persons, at the time of the decedent's death, in the following order:
(1) The decedent if acting through a declaration instrument;
(2) The surviving spouse of the decedent, if not legally separated from the decedent;
(3) Either the appointed personal representative or administrator of the decedent's estate if such person has been appointed; or the nominee for appointment as personal representative under the decedent's will if a personal representative or administrator has not been appointed;
(4) A majority of the surviving adult children of the decedent whose whereabouts are reasonably ascertainable;
(5) The surviving parents or legal guardians of the decent whose whereabouts are reasonably ascertainable;
(6) A majority of the surviving adult siblings of the decedent whose whereabouts are reasonably ascertainable;
(7) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than 1 person of the same degree, any person of that degree may exercise the right of disposition;
(8) In the absence of any person under paragraphs (a)(1) through (a)(6) of this section, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the personal representative of the decedent's estate or the funeral director with the custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals under paragraphs (a)(1) through (a)(6) of this section;
(9) The public administrator for the decedent's estate.
(b) To exercise the right to control final disposition pursuant to paragraph (a)(5) of this section, the majority of parents and guardians shall act in writing.
(c) If the assent of multiple persons under paragraphs (a)(4), (a)(5), or (a)(6) of this section cannot be obtained, a final judgment of the Chancery Court of the county of the decedent's residence shall be required to exercise the right to control final disposition. Such final judgment shall be consistent with the decedent's last wishes to the extent they are reasonable under the circumstances. (74 Del. Laws, c. 295, § 1; 76 Del. Laws, c. 112, § 1.)
§ 265. Declaration of Disposition of Last Remains; form.
The following declaration of disposition of last remains must be
substantially in the following form:
DECLARATION OF DISPOSITION OF LAST REMAINS
I, ________________________ (Name of Declarant), being of sound mind and
lawful age, hereby revoke all prior declarations, wills, codicils, trusts,
powers of appointment, and powers of attorney regarding the disposition of my
last remains, and I declare and direct that after my death the following
provisions be taken:
1. If permitted by law, my body shall be (Initial ONE choice):
____ Buried. I direct that my body be buried at _________________________.
____ Cremated. I direct that my cremated remains be disposed of as follows:
______________________________________________________________.
____ Entombed. I direct that my body be entombed at ____________________.
____ Other. I direct that my body be disposed of as follows: _______________
___________________________________________________________.
____ Disposed of as ________________________ (Name of Designee) shall decide
in writing. If ________________________ is unwilling or unable to act, I
nominate ________________________ as my alternate designee.
2. I request that the following ceremonial arrangements be made (initial
desired choice or choices):
____ I request ________________________ (Name of designee) make all
arrangements for any ceremonies, consistent with my directions set forth in
this declaration. If ________________________ is unwilling or unable to act, I
nominate ________________________ as my alternate designee.
____ Funeral. I request the following arrangements for my funeral: __________
____________________________________________________________.
____ Memorial Service. I request the following arrangements for my memorial
service: ______________________________________________________
____________________________________________________________.
3. Special Instructions. In addition to the instructions above, I request (on
the following lines you may make special requests regarding ceremonies or
lack of ceremonies): ___________________________________________
___________________________________________________________
___________________________________________________________.
Note: Those persons or entities asked to carry out a declarant's intent
regarding disposition of last remains and ceremonial arrangements need do so
only if the declarant's intent is reasonable under the circumstances.
"Reasonable under the Circumstances" may take into consideration factors such
as a known prepaid funeral, burial, or cremation plan of the declarant, the
size of the declarant's estate, cultural or family customs, the declarant's
religious or spiritual beliefs, the known or reasonably ascertainable
creditors of the declarant, and the declarant's financial situation prior to
death.
I may revoke or amend this declaration in writing at any time. I agree that a
third party who receives a copy of this declaration may act according to it.
Revocation of this declaration is not effective as to a third party until the
third party learns of my revocation. My estate shall indemnify any third party
for costs incurred as a result of claims that arise against the third party
because of good-faith reliance on this declaration.
I execute this declaration as my free and voluntary act, on _____________.
(Declarant) ______________________.
The following section regarding organ and tissue donation is optional. To
make a donation, initial the option you select and sign below.
In the hope that I might help others, I hereby make an anatomical gift, to be
effective upon my death, of:
A. ____ Any needed organs
B. ____ The following organs__________________________________
_________________________________________________________.
Donor signature: ____________________________________________.
Notarization Optional:
State of Delaware
County of ____________ :
Acknowledged before me by ___________________, Declarant, on
____________, ____. My commission expires:
*(Seal) Notary Public____________________________________ .
(74 Del. Laws, c. 295, § 1.)
§ 266. Declaration; other points of form.
(a) The form set forth in § 265 of this title is not exclusive, and a person may use another form of declaration instrument if the wording of the form complies substantially with § 265 of this title, the form is properly completed, and the form is in writing, dated, and signed by the declarant.
(b) A declaration instrument may be acknowledged, but lack of acknowledgment shall not render the declaration ineffective.
(c) This subchapter shall apply to declaration instruments executed or exercised in Delaware and to declaration instruments signed or exercised by a person who is a resident of Delaware when such instrument is signed or exercised.
(d) The provisions of the most recent declaration instrument shall control over any other document regarding the disposition of the last remains. (74 Del. Laws, c. 295, § 1.)
§ 267. Declaration; revocation generally.
A declaration may be revoked by the declarant in writing or by burning, tearing, canceling, obliterating, or destroying the declaration instrument with the intent to revoke such instrument. (74 Del. Laws, c. 295, § 1.)
§ 268. Declaration; revocation by divorce.
Unless otherwise expressly provided in a declaration instrument, a subsequent divorce, dissolution of marriage, annulment of marriage, or legal separation between the declarant and spouse automatically revokes a delegation to the declarant's spouse to direct the disposition of the declarant's last remains or ceremonies after the declarant's death. This section shall not be construed to revoke the remaining provisions of the declaration instrument. (74 Del. Laws, c. 295, § 1.)
§ 269. Declaration; revocation of designee.
Unless otherwise specified in the declaration instrument, if a declarant revokes a delegation to a person to direct the disposition of the declarant's last remains or ceremonies after the declarant's death, or if such person is unable or unwilling to serve, the nomination of such person shall be ineffective as to such person. If an alternate designee is not nominated by the declarant, § 264 of this title shall govern. This section shall not be construed to revoke the remaining provisions of the declaration instruments. (74 Del. Laws, c. 295, § 1.)
§ 270. Interstate effect of declaration.
(a) Unless otherwise stated in a declaration instrument, it shall be presumed that the declarant intends to have that declarant's own declaration instrument executed pursuant to this subchapter and recognized to the fullest extent possible by other states.
(b) Unless otherwise provided in the declaration instrument, a declaration instrument or similar instrument executed in another state that complies with the requirements of this subchapter may, in good faith, be relied upon by a third party in this State if an action requested by such declarant does not violate any law of the federal government, Delaware, or a political subdivision. (74 Del. Laws, c. 295, § 1; 70 Del. Laws, c. 186, § 1.)
TITLE 24
Professions and Occupations
CHAPTER 31. FUNERAL SERVICES
Subchapter III. Other Provisions
§ 3117. Funeral establishment permit; circumstances for termination and continuation.
(a) Upon completion of an application provided by the Board, payment of the appropriate fee, and fulfillment of all standards set by the Board by regulation, the Board shall issue a funeral establishment permit when the applicant provides evidence, verified by oath, that the establishment meets the following requirements:
(1) That funeral services shall be conducted from a building that meets the requirements of a funeral establishment as defined in § 3101(6) of this title.
(2) That the funeral establishment shall have in charge full time therein a person licensed in accordance with this chapter; provided however, that this paragraph shall not apply to funeral establishments maintained, operated or conducted prior to September 6, 1972.
(3) That the property on which the funeral establishment is located shall be properly zoned by the local zoning authority.
(4) That the funeral establishment has acquired all appropriate business licenses issued by the State Division of Revenue.
(b) No person shall conduct, maintain, manage or operate a funeral establishment unless a permit for each such establishment has been issued by the Board. Violation of this subsection shall constitute grounds for discipline. A funeral establishment permit shall be conspicuously displayed in said funeral establishment. In case of funeral services held in any private residence, church or lodge hall, no permit shall be required.
(c) All funeral establishment permits shall be renewed biennially in a manner determined by the Division, and shall be accompanied by a fee determined by the Division pursuant to § 3110 of this title. All permits shall list the name of the licensed full-time funeral director in charge of the establishment.
(d) The applicant to whom the establishment permit has been issued shall not permit the unauthorized practice of funeral services, personally or by agents, on or off the premises of said funeral establishment.
(e) In the event of the death, disability or circumstance that prevents the direct supervision and management by the funeral director of the funeral establishment, said permit is void, except under the following conditions:
(1) Where a funeral establishment has been operated by a funeral director under the director's license, the director's estate may continue the funeral establishment under the supervision and management of a licensed funeral director of this State until such time as the estate may be settled, but for no more than 2 years after the date of the decedent's death; or
(2) Where a funeral establishment has been operated by a corporation, said corporation may continue operating and assume all responsibilities of the funeral establishment provided that an officer of the corporation is a licensed funeral director of this State. Any change in officers of the corporation shall be reported to the Board.
(f) The Board is authorized to suspend or revoke a permit, after notice and hearing, for failure to comply with this statute or any lawful regulation applicable to funeral establishments. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 209, § 20; 73 Del. Laws, c. 203, §§ 1, 2.)
§ 3118. Exemptions.
(a) Nothing in this chapter shall be construed to prevent persons licensed to practice in any other state, district, territory or foreign country who, as practicing funeral directors, enter this State to transport and/or bury human remains or to consult with a funeral director of this State. Such consultation shall be limited to examination, recommendation or testimony in litigation.
(b) Nothing in this chapter shall be construed to prevent the practice of funeral services by any student of an accredited school or college of funeral services, or any intern duly registered with the Board, from receiving practical training under the personal supervision of a licensed funeral director in this State.
(c) Nothing in this chapter shall be construed to prevent the practice of funeral services by any funeral director commissioned by any of the armed forces of the United States, or by the Public Health Service; provided, that practice as a funeral director is limited to the confines of a military reservation or Public Health Service facility.
(d) Nothing in this chapter shall be construed to prevent the practice of funeral services by individuals performing the administrative and management aspects of funeral services under the direct supervision of a license funeral director; provided, that any sales of goods and services must be reviewed and authorized by, and under the signature of, the licensed funeral director in this State. (66 Del. Laws, c. 225, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3119. Interference with free choice of funeral establishment; operating mortuary in cemetery; accepting fees from cemeteries.
No person licensed for the practice of funeral services, nor any person acting on behalf of the licensee shall:
(1) Take part in any transaction or business which in any way interferes with the freedom of choice of the general public to choose a funeral establishment, except where the body or a part thereof is given for anatomical purposes;
(2) Operate a mortuary or funeral establishment located within the confines of, or connected with, any cemetery; or
(3) Receive or accept any commission, fee, remuneration or benefit of any kind from any cemetery, mausoleum or crematory, or from any proprietor or agent thereof, in connection with the sale or transfer of any cemetery lot, entombment vault, burial privilege or cremation, nor act, directly or indirectly, as a broker or jobber of any cemetery property or interest therein. (24 Del. C. 1953, § 3111; 58 Del. Laws, c. 415, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3120. Interstate transportation of human remains.
(a) Under circumstances where human remains are to be interred outside of this State, the custodian of those remains must obtain, for the nonresident funeral director, an interstate transportation of human remains form, prior to surrendering said remains to a nonresident funeral director. The temporary interstate transportation of human remains form shall be designated by the Office of Vital Statistics and contain the following information:
(1) The complete legal name and address of the deceased.
(2) The certificate or license number and state of issuance of the certificate number of the transporting nonresident funeral director.
(3) The complete address of the transporting nonresident funeral director.
(4) The carrier vehicle identification or registration number of the transporting vehicle.
(5) The signature of the nonresident funeral director or the director's agent.
(b) The temporary interstate transportation of human remains form shall be issued to the receiving funeral director and a copy shall be retained by the issuing funeral director.
(c) This section shall not prevent the final interstate transportation of human remains form from being incorporated into this State's death certificate. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1; 72 Del. Laws, c. 209, §§ 21-23.)
§ 3121. Cremation.
(a) Where not previously identified, human remains may not be cremated until they have been identified by either the next-of-kin, the person authorized to make funeral arrangements or the medical examiner. This subsection shall not apply to disposition of human remains by any school of anatomy, medicine or dentistry.
(b) Human remains shall be transported to a crematory using a cot or a receptacle. (66 Del. Laws, c. 225, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3122. Processing human remains where investigation of death is required.
No person licensed under this chapter shall remove or embalm human remains when the person has information indicating that an investigation of death is required pursuant to § 4706 of Title 29. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1.)
§ 3123. Penalties.
(a) A person not currently licensed as a funeral director, or registered as an intern, under this chapter, when guilty of engaging in the practice of funeral services, or of acting as an intern, or using in connection with that person's name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that the person is qualified to practice funeral services, or to act as an intern, such offender shall be guilty of a misdemeanor. Upon the first offense, the person shall be fined not less than $500 nor more than $1,000 for each offense and shall pay all costs. For a second or subsequent conviction, the fine shall be not less than $1,000 nor no more than $2,000 for each offense, and the offender shall pay all costs. Superior Court shall have jurisdiction over all violations of this chapter.
(b) Where it is alleged that such violation of this section has resulted in injury to any person, the offender shall be charged and tried under the applicable provisions of Title 11. (66 Del. Laws, c. 225, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 460, § 1.)
TITLE 12
Decedents' Estates and Fiduciary Relations
Fiduciary Relations
CHAPTER 35. TRUSTS
Subchapter IV. Trusts for Cemeteries and Other Noncharitable Purposes
§ 3551. Burial lots; perpetuities.
(a) Any owner of any burial lot or plot in any cemetery in this State, whether or not there shall then have been an interment in the lot or plot, may convey it in trust to the corporation owning or maintaining the cemetery or to any trust company, bank or banking company of this State or to any bank or banking company organized under the laws of the United States and doing business in this State and such corporation, trust company, bank or banking company may hold the title thereto in perpetuity or for any shorter time for the use and benefit of the owner of the lot or plot and for the protection of the bodies theretofore interred therein or which may thereafter be interred therein, pursuant to the terms of the deed of trust. Before any such conveyance shall be made the corporation owning or conducting the cemetery in which the lot or plot is located shall, by a resolution of its board of directors or managers passed at a regular meeting of the board, authorize the conveyance.
(b) A trust for the care and maintenance of any burial lot or cemetery plot, or for the construction or maintenance of any monument, marker or other additions thereto, is valid. (40 Del. Laws, c. 223, § 1; Code 1935, § 3964; 12 Del. C. 1953, § 3551; 75 Del. Laws, c. 301, § 2.)
§ 3552. Powers of cemetery corporation as to trust funds.
Any corporation created and existing under the laws of this State and owning 1 or more cemeteries in this State may take and hold, in perpetuity or for any shorter time, any real or personal property which shall be given, granted, devised or bequeathed to the corporation upon the trust to invest and reinvest the property and to use and apply the income thereof for:
(1) The care, improvement or embellishment of such cemetery or cemeteries or of any 1 or more lot or lots therein; or
(2) The erection or preservation of any buildings, structures or fences erected or to be erected upon any 1 or more of the lot or lots in the cemetery or cemeteries; or
(3) The erection, repair, preservation or renewal of any tomb, tombstone, monument, gravestone, mausoleum, fence, railing or other erection in, on or around any lot or lots; or
(4) Planting and cultivating trees, shrubs, flowers or plants in, on or around any such lot or lots; or
(5) Any and all of such purposes, in accordance with the terms and provisions of such gift, grant, devise or bequest, which terms and provisions may restrict the use and application of the income of the trust fund to any 1 lot whether owned by the donor of the trust fund or by any other person or persons. (40 Del. Laws, c. 222, § 1; Code 1935, § 3964; 12 Del. C. 1953, § 3552.)
§ 3553. Sale of real estate and proceeds.
Any real estate given, granted or devised to a cemetery corporation in trust, in accordance with § 3552 of this title, other than a lot or lots in the cemetery or cemeteries, may be sold and conveyed by the cemetery corporation at its discretion and the proceeds thereof shall be held under the same uses and trusts and subject to the same limitations as applied to the real estate before the sale thereof, but the donor of the real estate may provide otherwise in the trust instrument. (40 Del. Laws, c. 222, § 2; Code 1935, § 3964; 12 Del. C. 1953, § 3553.)
§ 3554. Perpetual care burial lots.
(a) Whenever a person, partnership or corporation engaged in the business of selling burial lots with perpetual care for profit shall sell any burial lot with perpetual care, it shall deposit in a bank and trust company, trust company or national banking association having fiduciary powers, a sum equal to at least one tenth of the gross sales price of such lot as a permanent lot care fund for the maintenance of burial lots sold with perpetual care and shall designate such banking institution as trustee of such fund. The permanent lot care fund so established shall be invested in compliance with Chapter 33 of this title and the trustee shall pay at least semiannually the net income from the fund to the person, partnership or corporation for the perpetual care and preservation of the burial lots sold with perpetual care.
(b) Any person, partnership or corporation engaged in the business of selling burial lots shall keep a record of all sales of burial lots showing the name of the purchaser or lessee, whether such lot was sold with perpetual care and the gross sales price. Such records shall be made available to the Attorney General of this State for inspection. (12 Del. C. 1953, § 3554; 55 Del. Laws, c. 397; 65 Del. Laws, c. 341, § 1.)
§ 3555. Trust for care of an animal and other purposes.
(a) A trust for the care of one or more specific animals living at the settlor's death is valid. The trust terminates upon the death of all animals living at the settlor's death and covered by the terms of the trust.
(b) Subject to the provisions of subsection (a) of this section, a trust for a declared purpose that is not impossible of attainment is valid notwithstanding that the trust might not be deemed to be for charitable purposes.
(c) A trust authorized by subsection (a) or (b) of this section shall not be invalid because it lacks an identifiable person as beneficiary if such trust would otherwise be valid if treated solely for purposes of this subsection (c) of this section as a charitable trust.
(d) A trust authorized by subsection (a) or (b) of this section may be enforced by a person appointed in the terms of the trust or, if there is no such person, by a person appointed by the Court of Chancery. A person who has an interest in the welfare of the animal or animals or in the declared purpose of the trust other than a general public interest may petition the Court of Chancery for an order that appoints a person to enforce the terms of the trust or to remove that person.
(e) Property of a trust authorized by this section may be applied only to its intended use. Upon the termination of the trust, any property of the trust remaining shall be distributed in accordance with the terms of the trust or, in the absence of such terms, as provided in § 3592 of this title. (75 Del. Laws, c. 301, § 3.)
TITLE 5
Banking
Other Businesses Under Jurisdiction of State Banking Department
CHAPTER 34. PRENEED FUNERAL CONTRACTS
§ 3401. Definitions.
As used in this chapter, unless the context requires otherwise:
(1) "Commissioner" means the State Bank Commissioner.
(2) "Insured institution" means an insured depository institution (as defined in the Federal Deposit Insurance Act at 12 U.S.C. § 1813(c)(2)) or an insured credit union (as defined in the Federal Credit Union Act at 12 U.S.C. § 1752(7)) authorized by law to do business in this State.
(3) "Preneed burial contract" means a contract which has for a purpose the furnishing or performance of funeral services or the furnishing or delivery of personal property, merchandise or services of any nature in connection with the final disposition of a dead human body for future use at a time determinable by the death of the person whose body is to be disposed of, but does not mean the furnishing of a cemetery lot, mausoleum or memorial. (24 Del. C. 1953, § 3120; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 71 Del. Laws, c. 19, §§ 10, 11.)
§ 3402. Preneed payments and increment as trust funds; disbursement of funds; exceptions.
(a) All payments of money made to any person, partnership, association or corporation upon any agreement or contract, or any series or combination of agreements or contract, but not including the furnishing of cemetery lots or mausoleums, which has for a purpose the furnishing or performance of funeral services or the furnishing or delivery of personal property, merchandise or services of any nature in connection with the final disposition of a dead human body for future use at a time determinable by the death of the person whose body is to be disposed of, are held to be trust funds. The person, partnership, association or corporation receiving the payments is declared to be a trustee thereof and shall deposit all payments in a trust account with an insured institution. All of the interest, dividends, increases or accretions of whatever nature earned by the funds deposited in a trust account shall remain with the principal of such account and become a part thereof, subject to all of the regulations concerning the principal of said fund herein contained.
(b) Except where payment is made pursuant to § 3403 of this title or the trust is established in accordance with § 3404 of this title, all payments made under the agreement, contract or plan are and shall remain trust funds with the insured institution until the death of the person for whose service the funds were paid and until the delivery of all merchandise and full performance of all services called for by the agreement, contract or plan.
(c) Except as provided in § 3404 of this title, the funds shall not be paid by the insured institution until a certified statement is furnished to the insured institution setting forth that all of the terms and conditions of the agreement have been fully performed by the person, association, partnership, firm or corporation. Any balance remaining in the fund after payment for the merchandise and services as set forth in the agreement, contract or plan shall be paid to the estate of the beneficiary of the agreement, contract or plan.
(d) Subsection (a) of this section does not apply to contracts for funeral service or merchandise sold as burial insurance policies which are regulated by the Insurance Department of this State. (24 Del. C. 1953, § 3121; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 68 Del. Laws, c. 389, §§ 1, 2; 69 Del. Laws, c. 165, §§ 12, 13; 71 Del. Laws, c. 19, §§ 10, 12, 13.)
§ 3403. Revocable trust accounts; refund to persons making payments.
(a) Except as provided in § 3404 of this title, upon the giving of 15 days' written notice, any person, partnership or corporation who has paid funds for a preneed funeral service may demand a refund of the entire amount actually paid, together with all interest, dividends, increases or accretions of any kind whatsoever which have been earned on such funds.
(b) The insured institution shall be relieved from further liability, after making payment to the person making payment of said funds, to the trustee upon receipt of the foregoing written notice. Notice of payment of funds under this section shall be given by the insured institution to the trustee. (24 Del. C. 1953, § 3122; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 68 Del. Laws, c. 389, §§ 3, 4; 71 Del. Laws, c. 19, §§ 10, 14, 15.)
§ 3404. Irrevocable trust accounts [Effective until Jan. 1, 2008]
(a) Any person, partnership or corporation who enters into a preneed funeral contract has the option, at any time, to establish an irrevocable trust for all funds or any portion of payments made or to be made under the agreement, contract or plan. At no time shall such funds exceed $10,000.
(b) The trust document establishing an irrevocable trust shall contain such specific provisions as the Commissioner may by regulation require. (68 Del. Laws, c. 389, § 5; 70 Del. Laws, c. 310, § 1; 71 Del. Laws, c. 19, § 10.)
§ 3404. Irrevocable trust accounts [Effective Jan. 1, 2008]
(a) Any person, partnership or corporation who enters into a preneed funeral contract has the option, at any time, to establish an irrevocable trust for all funds or any portion of payments made or to be made under the agreement, contract or plan. At no time shall such funds exceed $15,000.
(b) The trust document establishing an irrevocable trust shall contain such specific provisions as the Commissioner may by regulation require. (68 Del. Laws, c. 389, § 5; 70 Del. Laws, c. 310, § 1; 71 Del. Laws, c. 19, § 10; 76 Del. Laws, c. 36, § 2.)
§ 3405. Trust funds; how kept and deposited.
All trust funds mentioned in this chapter shall be deposited in the name of the trustee, as trustee, within 30 days after receipt thereof, with an insured institution and shall be held together with the interest, dividends or accretions thereon in trust subject to this chapter. The trustee at the time of making deposit or investment shall furnish to the insured institution the name of each payor and the amount of payment on each account for which the deposit or investment is being made. (24 Del. C. 1953, § 3123; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 68 Del. Laws, c. 389, § 5; 69 Del. Laws, c. 165, § 14; 71 Del. Laws, c. 19, §§ 10, 16.)
§ 3406. License to accept preneed contract required; fees.
(a) No person, firm, partnership, association or corporation may, without first securing from the Commissioner a license, accept or hold payments made on preneed burial contracts, except insured institutions as defined in § 3401 of this title. Application for a license shall be in writing, signed by the applicant and duly verified on forms furnished by the Commissioner. Each application shall contain at least the following:
The full name and address (both residence and place of business) of the applicant and every member, officer and director thereof if the applicant is a firm, partnership, association or corporation. Any license issued pursuant to the application shall be valid only at the address stated in the application for the applicant or at a new address approved by the Commissioner.
(b) Upon receipt of the application and payment of a license fee of $25, the Commissioner shall issue a license, unless the Commissioner determines that the applicant has made false statements or representations in the application, or is insolvent, or has conducted or is about to conduct business in a fraudulent manner, or is not duly authorized to transact business in this State. (24 Del. C. 1953, § 3124; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 68 Del. Laws, c. 389, § 5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 19, §§ 10, 17.)
§ 3407. Records of licensee; requirements; inspection.
The licensee shall keep accurate accounts, books and records in this State of all transactions, copies of all agreements, dates and amounts of payments made and accepted thereon, the names and addresses of the contracting parties, the persons for whose benefit funds are accepted, and the names of the insured institutions in which the funds are deposited or invested. The licensee shall make all books and records pertaining to the trust funds available to the Commissioner for examination. The Commissioner may at any time investigate the books, records and accounts of the licensee with respect to its trust funds, and for that purpose may require the attendance of and examine under oath all persons whose testimony the Commissioner may require. (24 Del. C. 1953, § 3125; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 68 Del. Laws, c. 389, § 5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 19, §§ 10, 18.)
§ 3408. Periodic report requirements.
A licensee shall file with the Commissioner such reports at such time as the Commissioner may require. Any reports required by the Commissioner under this section shall be in such form and shall contain such information as the Commissioner may specify. (68 Del. Laws, c. 303, § 10; 71 Del. Laws, c. 19, § 10.)
§ 3409. State Bank Commissioner to enforce law and establish rules and regulations.
The Commissioner shall enforce this chapter and has the power to make investigations, subpoena witnesses, require audits and reports and conduct hearings as to violations of any provision, and to establish such rules and regulations as are necessary to carry out this chapter. (24 Del. C. 1953, § 3127; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 68 Del. Laws, c. 303, § 10; 68 Del. Laws, c. 389, § 5; 71 Del. Laws, c. 19, § 10.)
§ 3410. Penalty.
Any person wilfully violating this chapter shall be fined not less than $500 nor more than $1,000. (24 Del. C. 1953, § 3126; 58 Del. Laws, c. 415, § 2; 63 Del. Laws, c. 145, § 1; 68 Del. Laws, c. 303, § 10; 68 Del. Laws, c. 389, § 5; 71 Del. Laws, c. 19, § 10.)
§ 3411. Surety bonds and irrevocable letters of credit [Effective Jan. 1, 2008]
(1) Every person licensed under this chapter shall file with the Commissioner, in a form satisfactory to the Commissioner, an original corporate surety bond with surety provided by a corporation authorized to transact business in this State, in the principal sum to be determined by the Commissioner. However, the bond amount may not be less than $50,000 nor more than $200,000. In determining the amount of the bond required for a licensee, the Commissioner shall consider, among other things:
a. The dollar value of the trust funds held by a licensee as a trustee under this chapter; and
b. Such other and further criteria as the Commissioner considers necessary and appropriate.
(2) A bond may not be accepted by the Commissioner unless all of the following requirements are satisfied:
a. The aggregate value of the bond must be equal to or greater than the amount determined by paragraph (a)(1) of this section.
b. The term of the bond must be commensurate with the license period or continuous.
c. The expiration date of the bond may not be earlier than midnight of the date on which the license issued under this chapter expires.
d. The bond must run to the State for the benefit of the Office of the State Bank Commissioner and for the benefit of all consumers injured by any wrongful act, omission, default, fraud, or misrepresentation by the licensee in the course of its activity as a licensee. Compensation under the bond must be for amounts which represent actual losses and may not be paid for claims made by business creditors, third-party service providers, agents, or persons otherwise in the employ of the licensee. Surety claims must be paid to the Office of the State Bank Commissioner by the insurer not later than 90 days after receipt of a claim. A claim paid after 90 days is subject to daily interest at the legal rate. The aggregate liability of the surety on the bond, exclusive of any interest which accrues for payments made after 90 days, may not exceed the amount of the bond.
(3) If a licensee changes its surety company or if its surety bond is otherwise amended, the licensee shall immediately provide the Commissioner with the amended original copy of the surety bond. Cancellation of an existing bond by a surety is not effective unless written notice of its intention to cancel is filed with the Commissioner at least 30 days before the date on which cancellation is scheduled to take effect.
(4) The Commissioner may require potential claimants to provide documentation and affirmations that the Commissioner determines are necessary and appropriate. If the Commissioner determines that multiple consumers have been injured by a licensee, the Commissioner shall cause a notice to be published for the purpose of identifying all relevant claims.
(5) When a surety company receives a claim against the bond of a licensee, the surety company shall immediately notify the Commissioner and may not pay any claim until it receives notice to do so from the Commissioner.
(6) The Commissioner has 2 calendar years after the effective date of cancellation or termination of a surety bond by an insurer to submit claims to the insurer.
(b) In lieu of requiring the filing of a surety bond pursuant to subsection (a) of this section, the Commissioner may, at the Commissioner's discretion, accept an irrevocable letter of credit from a licensee.
(1) An irrevocable letter of credit must be provided by an insured depository institution as defined in the Federal Deposit Insurance Act at 12 U.S.C. § 1813(c) and acceptable to the Commissioner, in a form satisfactory to the Commissioner, in the principal sum to be determined by the Commissioner. However, the irrevocable letter of credit amount may not be less than $50,000 nor more than $200,000. In determining the amount of the irrevocable letter of credit required for a licensee, the Commissioner shall consider, among other things:
a. The dollar value of the trust funds held by a licensee as a trustee under this chapter; and
b. Such other and further criteria as the Commissioner considers necessary and appropriate.
(2) An irrevocable letter of credit may not be accepted by the Commissioner unless all of the following requirements are satisfied:
a. The aggregate value of the irrevocable letter of credit must be equal to or greater than the amount determined by paragraph (b)(1) of this section.
b. The irrevocable letter of credit must run to the State for the benefit of the Office of the State Bank Commissioner and for the benefit of all consumers injured by any wrongful act, omission, default, fraud, or misrepresentation by the licensee in the course of its activity as a licensee. Compensation under the irrevocable letter of credit must be for amounts which represent actual losses and may not be paid for claims made by business creditors, third-party service providers, agents, or persons otherwise in the employ of the licensee. The aggregate liability of the insured depository institution issuing the irrevocable letter of credit may not exceed the amount of the irrevocable letter of credit.
c. Draws upon irrevocable letters of credit must be available by sight drafts thereunder, in amounts determined by the Commissioner, up to the aggregate amount of the irrevocable letter of credit. Sight drafts must be honored in accordance with § 5-108 of Title 6 (issuer's rights and obligations).
(3) The Commissioner may require potential claimants to provide documentation and affirmations that the Commissioner determines are necessary and appropriate. If the Commissioner determines that multiple consumers have been injured by a licensee, the Commissioner shall cause a notice to be published for the purpose of identifying all relevant claims.
(4) The Commissioner may refuse release of an irrevocable letter of credit following the surrender of a license, up to 2 years after the effective date of licensure termination. (76 Del. Laws, c. 36, § 1; 70 Del. Laws, c. 186, § 1.)
TITLE 20
Military and Civil Defense
Military
CHAPTER 12. DELAWARE VETERANS MEMORIAL CEMETERY
§ 1201. Established.
There is hereby created and established a Delaware Veterans Memorial Cemetery. (64 Del. Laws, c. 46, § 1.)
§ 1202. Supervision by Delaware Commission of Veterans Affairs; powers and duties.
The establishment, operation and maintenance of the Delaware Veterans Memorial Cemetery shall be under the supervision of the Delaware Commission of Veterans Affairs which shall have the following powers and duties:
(1) Select an appropriate site for the Cemetery, pursuant to § 1203 of this title;
(2) Acquire, by transfer of title from another state agency, or by purchase, grant, devise or contract, title to such real property as shall be suitable and necessary for the establishment of the Cemetery;
(3) Apply for, receive, accept and expend any money, materials or other aid granted or otherwise provided by local, state or federal governments or by any source, public or private, in accordance with the terms thereof, for the establishment, operation or maintenance of the Cemetery;
(4) Appoint and employ such persons as shall be needed for the proper operation and maintenance of the Cemetery;
(5) Establish criteria for eligibility for burial in the Cemetery, and set fees for the burial of family members, pursuant to § 1204 of this title;
(6) Promulgate rules, following public hearing, governing the administration and operation of the Cemetery;
(7) Prepare an annual report on the operation of the Cemetery which shall be presented to the Governor and to the General Assembly; and
(8) Perform all other powers and functions necessary or appropriate to carry out the purposes and policies of this chapter. (64 Del. Laws, c. 46, § 1; 67 Del. Laws, c. 43, §§ 1, 2.)
§ 1203. Selection of site.
The site of the Cemetery shall be determined by the Department with the approval of the Delaware Veterans Affairs Committee or its successor. The site shall be convenient to all veterans of the State and shall meet the necessary standards and guidelines established by the United States Administrator of Veterans Affairs for the location of state-owned veterans cemeteries. In selecting the site, preference shall be given to land which is owned by the State. Land for the site may be acquired by purchase only in the event suitable state-owned land is not available. (64 Del. Laws, c. 46, § 1.)
§ 1204. Eligibility for burial [Effective until Sept. 28, 2007]
(a) The following persons shall be eligible for burial in the Cemetery:
(1) Any veteran or member of the armed forces of the United States (Army, Navy, Air Force, Marine Corps and Coast Guard) who:
a. Dies under honorable conditions while serving on active duty in an armed force of the United States; or
b. Served as an active member of the armed forces of the United States whose service was terminated honorably; and is a resident of Delaware at the time of death or had previously been a resident of Delaware for at least 10 years; provided, the rules promulgated by the Commission shall make provision for waiving the 10-year residency requirement for compelling reasons;
(2) Any member of the immediate family of a veteran or armed forces member who qualifies for burial, subject to such fees as may be established by the Commission. The Commission shall, by rule, specify members of the immediate family who shall be eligible for burial in the Cemetery;
(3) This section shall also apply to persons who served honorably as a member of the National Guard or reserve forces of the United States, who at the time of death was entitled to retired pay under Chapter 67 of Title 10 U.S.C. or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age; and provided that the Delaware residency requirements of paragraph (1)b. of this subsection are met;
(4) The bodies of eligible persons previously buried in other locations may be reinterred in the Cemetery upon the request of anyone legally entitled to make such request; provided, that no cost shall be borne by the State other than that which would be incurred in an original burial.
(b) There shall be no fee charged for any plot and the interment provided to any eligible veteran or member of the armed forces of the United States. The Commission may establish reasonable fees for burial of members of the immediate family of a veteran or armed forces member.
(c) Burial in the Delaware Veterans Memorial Cemetery shall be without regard to race, creed, color, sex or national origin.
(d) This section shall also apply to Merchant Marines who qualify as veterans under § 8720 of Title 29. (64 Del. Laws, c. 46, § 1; 67 Del. Laws, c. 43, § 3; 69 Del. Laws, c. 145, § 3; 69 Del. Laws, c. 415, § 1; 70 Del. Laws, c. 186, § 1.)
§ 1204. Eligibility for burial [Effective Sept. 28, 2007]
(a) The following persons shall be eligible for burial in the Cemetery:
(1) Any veteran or member of the armed forces of the United States (Army, Navy, Air Force, Marine Corps and Coast Guard) who:
a. Dies under honorable conditions while serving on active duty in an armed force of the United States; or
b. Served as an active member of the armed forces of the United States whose service was terminated honorably; and is a resident of Delaware at the time of death or had previously been a resident of Delaware for at least 10 years or was a member of the Delaware National Guard or a reserve unit located within Delaware for at least 20 years; provided, the rules promulgated by the Commission shall make provision for waiving the 10-year residency requirement for compelling reasons;
(2) Any member of the immediate family of a veteran or armed forces member who qualifies for burial, subject to such fees as may be established by the Commission. The Commission shall, by rule, specify members of the immediate family who shall be eligible for burial in the Cemetery;
(3) This section shall also apply to persons who served honorably as a member of the National Guard or reserve forces of the United States, who at the time of death was entitled to retired pay under Chapter 67 of Title 10 U.S.C. or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age; and provided that the Delaware residency or National Guard or reserve service requirements of paragraph (1)b. of this subsection are met;
(4) The bodies of eligible persons previously buried in other locations may be reinterred in the Cemetery upon the request of anyone legally entitled to make such request; provided, that no cost shall be borne by the State other than that which would be incurred in an original burial.
(b) There shall be no fee charged for any plot and the interment provided to any eligible veteran or member of the armed forces of the United States. The Commission may establish reasonable fees for burial of members of the immediate family of a veteran or armed forces member.
(c) Burial in the Delaware Veterans Memorial Cemetery shall be without regard to race, creed, color, sex or national origin.
(d) This section shall also apply to Merchant Marines who qualify as veterans under § 8720 of Title 29. (64 Del. Laws, c. 46, § 1; 67 Del. Laws, c. 43, § 3; 69 Del. Laws, c. 145, § 3; 69 Del. Laws, c. 415, § 1; 70 Del. Laws, c. 186, § 1; 76 Del. Laws, c. 62, §§ 1, 2.)
TITLE 7
Conservation
Public Lands, Parks and Memorials
CHAPTER 51. UNKNOWN SAILORS' CEMETERY
§ 5101. Memorial cemetery.
The public lands hereinafter described are set aside and designated as a memorial cemetery for the burial of sailors and shall be maintained solely for that purpose. The cemetery shall be known as the Unknown Sailors' Cemetery and shall include the following described lands:
Beginning at a point on the north edge of the State Highway leading from the Town of Lewes towards the old Henlopen Lighthouse Reservation, said point being 171 feet east from the lines of Lewes Coast Guard Station and corner for lands in possession of Louis L. Paynter, and thence running along and with one line of said lands 577 feet to a point at high water mark on Delaware Bay, thence along the high water mark of said Bay southeast 350 feet to a point corner for land leased to the Lewes Fertilizer Company, now in possession of Smith Meal Company, thence along and with one line of said lands southwest 568 feet to a point in the north edge of the above described highway, thence along and with the north edge of said Highway 385 feet home to the place of beginning. (42 Del. Laws, c. 2, § 1; 7 Del. C. 1953, § 5101.)
§ 5102. Agency in charge of cemetery; powers.
The Delaware Society for the Preservation of Antiquities, a corporation of the State, is the state agency or authority of the State designated to carry out this chapter. The Society shall provide for the care and maintenance and the reconstruction and restoration of the Unknown Sailors' Cemetery, and may make application to any federal department, board or agency for the performance of any necessary work and may accept any grant which is available to it as such state agency or to the State for the purpose of the reconstruction and restoration of the cemetery. (42 Del. Laws, c. 2, § 2; 7 Del. C. 1953, § 5102.)
