Rights and Duties Relating to Cemeteries, Human Bodies and Anatomical Gifts
Suits to enforce endowed care statutes
- attorney fees
(1)(a) If the cemetery authority fails to remit to the trustee or trustees, in accordance with the law, the funds herein provided for endowment and special care, or fails to expend the net income from the funds and generally care for and maintain any portion of a cemetery entitled to endowment care, any of the following may bring an action for a mandatory injunction or for an appointment of a receiver to sue for, take charge of and expend the net income:
(A)Any three lot owners, or a lot owner’s next of kin, heir or personal representative whose lots are entitled to endowment care;
(B)Any one lot owner, or the lot owner’s next of kin, heir or personal representative, whose lot is entitled to special care;
(C)The district attorney of the county where a lot described in this subsection is located; or
(D)A local government with jurisdiction over the county or municipality where a lot described in this subsection is located.
(b)The suit may be filed in the circuit court of the county where the cemetery is located in order to compel the cemetery authority or the appointed receiver to make the expenditure of the net income from the endowment care fund for the purposes set out in ORS 97.010 (Definitions) to 97.040 (Private family burial grounds), 97.110 (Human remains not to be attached) to 97.450 (Discontinuance of cemetery and removal of remains and markers), 97.510 (Sale and conveyance of plots by cemetery authority) to 97.730 (Gifts and bequests in trust for cemeteries), 97.810 (Endowment care and nonendowed care cemeteries) to 97.920 (Judgment declaring nuisance, authorizing abatement and creating and foreclosing lien) and 97.990 (Penalties).
(2)When the Director of the Department of Consumer and Business Services has reason to believe that a cemetery endowment care fund does not conform to the requirement of law, or when the director has reason to believe that any cemetery is operating in violation of ORS 97.810 (Endowment care and nonendowed care cemeteries) or 97.820 (Placing cemetery under endowed care), or when the director has sent an endowment care cemetery a notice of delinquency to make any report to the director required by ORS 97.810 (Endowment care and nonendowed care cemeteries), the director shall, as soon thereafter as reasonable, give notice of the foregoing to the trustee or trustees of the cemetery endowment care fund, the cemetery authority, the Attorney General of Oregon and the State Mortuary and Cemetery Board.
(3)Within 120 days after the receipt of such notice, the Attorney General shall institute suit in the circuit court of any county of this state in which such cemetery is located, for a mandatory injunction against further sales of graves, plots, crypts, niches, burial vaults, markers or other cemetery merchandise by such cemetery or for the appointment of a receiver to take charge of the cemetery, unless the Attorney General shall prior to that time be notified by the director that such failure to conform to the requirements of the law or to report has been corrected.
(4)The Attorney General may delay instituting any suit brought under subsection (3) of this section for no more than an additional 30 days if, in the discretion of the Attorney General after consulting with the director, it appears to the Attorney General:
(a)That the failure to conform to the requirements of the law or to report will be corrected; and
(b)That no harm to the public will occur during the additional 30 days.
(5)If a trustee fails to perform the duties of the trustee under ORS 97.810 (Endowment care and nonendowed care cemeteries) to 97.920 (Judgment declaring nuisance, authorizing abatement and creating and foreclosing lien), the trustee shall be liable for any damage resulting from that failure to any lot owners or the next of kin, heirs at law or personal representatives of such lot owners.
(6)The court may award reasonable attorney fees, costs and disbursements to the prevailing party in an action under this section. [1955 c.545 §5; 1965 c.396 §6; 1985 c.450 §2; 1999 c.67 §1; 2001 c.796 §24; 2007 c.661 §7; 2019 c.8 §7]
Atty. Gen. Opinions
Embalming dead human body without prior authorization from surviving spouse or next of kin, (1981) Vol 41, p 457