The Cremation Process in Florida
In Florida, cremation practices are primarily governed by Chapter 497 of Florida’s statutes (also known as the Florida Cemeteries and Funeral Establishments Law), along with regulations set forth by the Florida Board of Funeral, Cemetery, and Consumer Services. These laws dictate who can licitly carry out a cremation, procedures for disposing of cremated remains, recordkeeping requirements, and more.
As per recent updates to state law, a funeral director in Florida is now required to explain to a decedent’s family how long the remains can be stored in a facility’s cremation unit . Indeed, a bill amending the previous law (known as HB 1169), now requires funeral directors to provide this explanation on an annual basis as well. It’s important that cremation service providers keep this rule in mind. Otherwise, they could be accused of violating Florida’s laws on cremation.
A competent operator in Florida must keep records for at least seven (7) years after the date of the decedent’s death. Cremation service providers should develop a sound strategy for keeping and storing all of this information in a secure and accessible manner, lest they run afoul of state regulations on cremation.
Who Has Authority to Authorize an Incineration?
As outlined in Florida Statue 470.615, authorization to cremate a body must be given to a licensed cremation establishment by one of the following persons:
Spouse
Children over 18
Parents
One sibling who is over 18
Court-appointed representative
Legal guardian or an individual who undertakes the responsibility of permanently caring for the deceased.
Respecting Requirements for the Cremation Process
The law requires statewide consistency in the procedures that must be followed in the almost 1,300 funeral establishments and 99 crematories in Florida. A funeral establishment must maintain at all times a written plan covering the following: The law also requires that all cremations in Florida be performed in a cremation unit that meets specifications for emission of mercury and dioxins required by EPA and by Chapter 403, Florida Statutes. An approved cremation unit must also be so constructed, equipped, and maintained that no offensive odor is released into the atmosphere during the cremation process. The law has a separate complaint and disciplinary process for funeral establishments and crematories. There are initial steps and a hearing if an informal disposition cannot be accomplished. After a final order is entered, there is a right to appeal and an option for a stay that must be sought within 30 days after the order is issued. The law also imposes a civil penalty for violations and requires that such penalties be deposited into the Florida Prepaid College Fund.
Certificates, Permits and Directions
Before proceeding with cremation, several permits and documents must be in order. Primarily, a signed authorization for cremation is legally required prior to cremation in Florida. Some form of written permission from the legal next of kin is necessary. The Florida Statute outlines who carries the legal right to authorize a body to be cremated. Florida state law first gives right to permission for cremation to the legal surviving spouse. In the absence of a spouse, the law gives permission rights granting authority for the ‘next’ legal surviving representative in the following order: son or daughter, either parent, brother or sister, grandparent, union steward of employee, or guardian.
If no legal surviving relative can be found by the funeral provider, the funeral director can release the body into refrigeration for a period of 24 hours. After 24 hours, the funeral provider can go to the intending owner of the cremation facility and request that they uncremate the remains with the signature of the funeral director stating in each instance the date and hour of such demand and compliance and stating the exact hour of cremation, the name of the deceased, and the name of the legal next of kin who gave permission for cremation.
Obtaining written authorization for cremation is fairly simple. Most licensed funeral providers have commercial cremation on site, so the authorization form is standard and acceptable by all local cremation facilities. This form allows for the authorization of the cremation process to begin, which in turn gives the funeral provider clearance to also go ahead with obtaining necessary permits or death certificates, if they don’t already have them.
Most funeral homes keep the form on file as a general office policy. The funeral provider may leave an extra form with the family in case there are any changes to the decision for cremation, such as deciding on a traditional burial instead. It is then with the referring family to obtain all necessary permits to get the cremation process started. A death certificate is needed for all cremations, so the funeral home will be able to submit the application for the permit.
Disposition of Remains and Proper Placement of Ashes
Handling, storing, and scattering cremated remains in Florida comes with its own set of legal considerations. Although cremation is an increasingly common practice, the way remains are handled, stored, and scattered can be a grey area. The statutes strictly regulate how the deceased’s body is to be disposed of, but their directives, such as where they want their ashes stored, are not always followed.
Florida Statute 497.605(1) provides that, After the individual’s death, the duties and responsibilities of the authorizing agent are as follows: (a) Obtain, prior to or after final disposition, the written authorization from the person or persons having the right to control the final disposition of the principal, which is pursuant to this section. (b) Arrange for the final disposition of the principal. (c) Execute and file the declaration of status of authorizing agent pursuant to s. 497.607 as provided by the board. (d) Submit the death certificate to the department. (e) File with the department the application for the authorization to operate issued by the board by completing all forms, providing all documentation, and paying any required fees. (f) Make and maintain such records as are required by the board or the department. (g) Submit to the board any agreements, transfer reports, or other documents required by s. 497.641 related to the transfer of the preneed arrangement to the authorizing agent. Upon submission of such documentation, the authorizing agent is not liable for any unpaid balance due pursuant to such transactions . (h) Ensure that the consumer has received a copy of all consumer contracts and disclosures required under the rules of the board. (i) Ensure that the consumer obtains a copy of the death certificate and that a copy accompanies the final disposition report.
Florida Statute 497.607 outlines the requirements of the authorizing agent. Although the authorizing agent may not be held liable for the unpaid balance unless they have arranged for the final disposition of the remains for consideration, it does not absolve the authorizing agent of responsibility.
Florida Statute 497.607(2) provides that funeral homes have the right to a final disposition. They may scatter the remains if written directions have not been provided. This is a somewhat grey area because there are still many questions about what happens when the directions are divided between the authorizing agent and the decedent’s family.
A few restrictions are provided in Florida Statute 406.61. Scattering of ashes is prohibited over the following locations without first obtaining permission: Florida Statute 406.61(2)(c) prohibits scatterings over any major waterway, but exceptions are made for the following: Other laws may come into play when considering cremation and burial issues in Florida. For example, Veterans Affairs’ directive 40.31 discusses the handling of cremated remains. The best approach is to consider the dispatch of cremated remains ahead of time so as to avoid any problems with the authorities after the fact. In some instances, a lawsuit can be expected if cremated remains are improperly handled.
Violating Florida Cremation Requirements Can Bring Big Problems
Violations of the cremation laws come in several flavors and can range from an inadvertent oversight to shady business practices. Either scenario is illegal, and may entail criminal penalties. Those who willfully violate the cremation laws could be charged with a third-degree felony. To determine if one is guilty of such a charge, the court will look at whether there was intent to commit fraud or an intent to derive anything of value from the violation. If there was no such intent, it may not be considered a third-degree felony, and would instead fall under second-degree misdemeanor. Simply being unknowledgeable or failing to do something required by the statutes may be negligent, but does not necessarily constitute a crime.
Another violation, but one that is often unintentional, is the failure to obtain proper authorization to cremate in a timely fashion. Fortunately, this type of mistake may be remedied, and the penalty for having done so is limited. For example, if no one has properly identified the decedent, then the permit to dispose of the body that is issued to the funeral director is not valid. As such, the death care practitioner is prohibited from taking any action to prepare the decedent for cremation until they are in possession of valid, written authorizations.
Moreover, if the death care practitioner intakes the decedent into its custody without having received a valid permit for final disposition, the practitioner is violating the law even if they have received written authorization to proceed with the cremation. However, if the practitioner receives the signed authorization after already having admitted the decedent into their custody, then the law provides an opportunity to remedy the scenario. Once the practitioner receives the signed authorization, they can contact the county health department to obtain a permit for disposition of the body even though the deadline for doing so has passed.
If the practitioner is an immediate disposal establishment, then there is a special exception that may allow them time to obtain the required permit, and therefore to avoid having committed a crime by improperly interring or cremating the deceased. This exception pertains to all immediate disposal establishments throughout the state who may inadvertently have allowed this exception to pass. The written notice from the Department of Health indicates that this error is likely to occur if you have been busy with many arrangement conferences.
How To Choose a Good Crematory
When deciding on a cremation service provider, it is prudent to choose one that is reputable. A quick search on the Internet for Florida cremation providers will yield over one hundred results. In addition to finding the lowest price, your goal when selecting a provider should also be to locate a firm that you can trust. Your first choice should always be to find a licensed provider. Florida law requires that any funeral firm wishing to provide cremation services must be licensed by the State of Florida and any such firm must internally employ its own crematory operator who is also licensed by the State of Florida.
Without a proper license, the business is operating illegally and if you are not careful, you may fall victim to a "Fly-by-Night" or "Cemetery Caretaker" operation. While there are many reputable and professional providers, the State raises a red flag if someone attempts to offer you these services without obtaining a proper license . You should not consider hiring such an individual or company as it may result in improper handling or storage of remains or neglectful oversight of the cremation process.
Just because someone provides a service on the Internet, including a physical address, does not mean it is a business operating legally. This is not a reflection of their overall intent but because the Internet is such a quick and easy medium for people to use (with little upfront cost or investment), many companies have popped up overnight, are another state away and some have no physical address at all.
Whether the company offers a pre-paid plan or you are paying immediately, always ask for a copy of their license before you give them your business. You may check the credentials of your crematory operator online at the Department of Financial Services website.