The Prearranged Funeral Services Act

The Prearranged Funeral Services Act, C.C.S.M. c. F200 bilingual version (HTML) Table of Contents Section 1 Definitions 2 Providers of prearranged funerals to comply with this Act 3 Licence 4 Payments to constitute trust moneys 5 Special fund 6 Withdrawal from special fund 7 Reports 8 Assignment of plans 9 Where Act not applicable 10 Offence and penalty 11 Cancellation of licence 12 Act not applicable to existing plans 13 Funds exempt from seizure 14 Not life insurance 15 Trust funds 16 Regulations HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Definitions 1 In this Act, "authorized trustee" means the trust company, or one of the trust companies, designated in the regulations as the authorized trustee or as authorized trustees, under this Act; (« fiduciaire autorisé ») "director" means the director of the Consumer Protection Office designated under The Consumer Protection Act , and includes a deputy of the director; (« directeur ») "funeral director" means a person who regularly carries on the business of supplying funeral services; (« entrepreneur de pompes funèbres ») "funeral services" means funeral services in Manitoba, and includes the services and commodities usual in the preparation for burial and the burial of the dead, or any such service and commodity, other than (a) the supplying of lots, plots, compartments, or other space in a cemetery, columbarium, or mausoleum, grave markers, or vases, and (b) services rendered at a cemetery for which a charge is made by the owner or operator of the cemetery; (« services de pompes funèbres ») "licensee" means a funeral director licensed under this Act to provide funeral services under a prearranged funeral plan; (« titulaire d'un permis ») "prearranged funeral plan" means an agreement whereby, in consideration of payment therefor in advance, by a lump sum or instalments, a funeral director contracts to provide funeral services for a person alive at the time the agreement is made; (« arrangement préalable d'obsèques ») "purchaser" means a person who enters into a prearranged funeral plan with a licensee under this Act. (« acheteur ») S.M. 2011, c. 29, s. 18 ; S.M. 2017, c. 7, s. 3 ; S.M. 2021, c. 61, s. 72 . Providers of prearranged funerals to comply with this Act 2(1) Every funeral director who undertakes to provide the funeral services of another person under a prearranged funeral plan shall comply with this Act in order to ensure that those funeral services may be available and provided when required. Licence required 2(2) Subject to subsection (3), unless they are the licensee named in a valid and subsisting licence for the purpose, no person shall (a) undertake to provide or make provision for the funeral services of another person under a prearranged funeral plan; or (b) solicit another person to enter into a prearranged funeral plan. Employment, licensing and bonding of agents 2(3) A licensee may employ a salesperson or a person to act as their agent, and such agent may in turn employ a salesperson for the purpose of soliciting persons to enter into prearranged funeral plans with the licensee; but no person shall act as such agent or salesperson unless that person (a) holds a valid and subsisting written authority from the licensee authorizing the person so to act as agent or salesperson for the licensee; (b) files with the director a surety bond in a form acceptable to the director and in an amount prescribed in the regulations, issued by an assurance or bonding company authorized to carry on business in Manitoba; and (c) applies to and obtains from the director, a licence under this Act to act as agent or salesperson of a licensee. No canvassing in hospitals, etc. 2(4) No person shall in a hospital, nursing home or old people's home canvass or ask a patient or inmate of such hospital or home to purchase a prearranged funeral plan. Contract to be between purchaser and specific licensee 2(5) Every contract entered into by a purchaser through an agent or salesperson shall be made between the purchaser and a specific licensee and in no case shall an agent or salesperson be a party to the contract. S.M. 2021, c. 61, s. 72 . Application for licence 3(1) A funeral director desiring to provide funeral services for remuneration, reward, or compensation under prearranged funeral plans may apply to the director for a licence under this Act to enter into prearranged funeral plans in accordance with the regulations. Issue of licence 3(2) Where the director is satisfied that an applicant for a licence is a funeral director and that the necessary agreements have been made with the authorized trustee, as required by this Act, for the investment and disposal of any moneys to be received under the prearranged funeral plans proposed to be entered into by the applicant, the director may issue to the applicant a licence in the form approved by the director. Terms and conditions of licence 3(3) The director, if the director considers it in the public interest to do so, may impose terms or conditions on a licence at the time of issuing or renewing the licence. A licence is also subject to any terms or conditions imposed by regulation. Expiry of licence 3(4) Each licence issued under this section expires on March 31 next following the date of the issue thereof. Fees for licences and services 3(5) For each licence issued, and for each service rendered, to a licensee under this Act, the licensee shall pay such fee, if any, as is fixed in the regulations. Director may impose terms 3(6) The director may, if the director considers it in the public interest to do so, after notice in writing to and hearing the licensee or their representative, vary, add to, or revoke part or all of the terms, conditions or restrictions. 3(7) [Repealed] S.M. 2017, c. 26, s. 14 . S.M. 2017, c. 26, s. 14 ; S.M. 2019, c. 11, s. 12 ; S.M. 2021, c. 61, s. 72 . Payments to constitute trust moneys 4(1) A licensee who enters into a prearranged funeral plan is trustee of all moneys paid under the plan, other than the sum, if any, retained pursuant to subsection (2), for the purposes for which they have been paid until (a) the funeral services mentioned in the plan have been provided in accordance with the plan; or (b) the moneys, or any unused balance thereof, have been refunded to the purchaser or paid to their personal representative, as the case may be. Retention of percentages by licensee 4(2) Subject to subsection 6(2), a licensee may, if the plan so provides, retain not more than 12% of the moneys payable under the plan. Forfeiture on early cancellation by purchaser 4(3) When, at the request of the purchaser, a prearranged funeral plan is terminated, cancelled, or discontinued within three years after the date on which it was entered into, the amount, if any, retained pursuant to subsection (2) is forfeited to the licensee as a penalty. S.M. 2021, c. 61, s. 72 . Special fund 5(1) Moneys of which a licensee is trustee under a prearranged funeral plan shall, within the time prescribed in the regulations, be paid to the authorized trustee to be deposited in a special fund provided by the authorized trustee by agreement with the licensee; and unless otherwise provided in the agreement between the purchaser and the licensee, interest, if any, on such moneys or any income therefrom, shall accrue to the purchaser. Release of interest 5(2) Where the agreement between the purchaser and the licensee provides that interest or income as aforesaid shall accrue to the licensee, the licensee shall not withdraw, and the authorized trustee shall not release to the licensee or anyone on their behalf, that interest or income, until the interest or income has accrued in a manner, and to the extent, prescribed in the regulations. Application of subsec. (1) in case of combined agreement 5(3) Where the person agreeing to provide funeral services under a prearranged funeral plan, by the same agreement or a collateral agreement made at or about the same time, agrees to sell, lease, or rent a lot, plot, compartment, or other space in a cemetery, columbarium, or mausoleum with or without a casket, container for ashes, or other goods or materials, subsection (1) applies only to that portion of the moneys payable under the agreement by the purchaser that may be stated in the agreement, or, if not so stated, that is determined by the director, whose decision in the matter shall be final; but the portion of the moneys so stated in an agreement shall not be less than the portion thereof fixed in the regulations. Investment 5(4) Moneys in any special fund for the purposes of this Act may be invested in any investments in which trustees may invest under The Trustee Act . S.M. 2021, c. 61, s. 72 . Withdrawal 6(1) Moneys paid to the authorized trustee under section 5 pursuant to the making of a prearranged funeral plan may, at any time, upon reasonable notice, be paid out, in whole or in part, (a) to the purchaser or the purchaser's personal representative, upon the joint authorization of the licensee and the purchaser or personal representative, or if the licensee is not available or refuses to authorize repayment, upon the direction of the director; or (b) to the licensee upon production of proof of the death of the person whose funeral services are to be provided under the prearranged funeral plan and proof that the funeral services have been provided as agreed. Payment of amount retained 6(2) Where, after a plan has been in operation for at least three years, a payment is made pursuant to clause (1)⁠(a), the licensee shall pay to the person entitled to the payment an amount equal to the sum, if any, retained by the licensee pursuant to subsection 4(2). Provisions in agreement for withdrawal or payment of balance by personal representative 6(3) Every prearranged funeral plan shall contain (a) a provision that the moneys paid thereunder may be withdrawn in the manner specified in subsections (1) and (2), and without payment of a penalty or other charge, other than is permitted under subsection 4(3); and (b) a provision that where a purchaser dies before making all payments required under a prearranged funeral plan, the purchaser's personal representative may, at the personal representative's option, pay any unpaid balance payable by the purchaser to the licensee under the plan S.M. 2021, c. 61, s. 72 . Reports 7(1) Every licensee shall report, at such periods as may be prescribed in the regulations, to the director concerning any prearranged funeral plans undertaken by the licensee; and they shall give to the director such information in respect thereof as is required in the regulations. Statement by authorized trustee 7(2) Every authorized trustee shall prepare, as of December 1 in each year or as of such other date as the director may require, a statement showing (a) the number of special funds maintained by it for licensees pursuant to this Act; (b) the amount standing, at that date, to the credit of each special fund and the name of the licensee for whom the fund is maintained; (c) in respect of each fund, the persons who are paying moneys under a prearranged funeral plan made with the licensee for whom the fund is maintained, and the amounts paid and to be paid thereunder on behalf of each such person; (d) the sums charged by the authorized trustee by way of service charge, for maintaining the fund, and how those sums are derived; and (e) such other matters as may be required in the regulations. Forwarding of statement 7(3) The authorized trustee shall send the statement required by subsection (2) to the director by ordinary mail before December 31 in each year and with respect to clause (2)⁠(c), shall attach a declaration showing that the statement was compiled and based on information supplied by the licensee. S.M. 2021, c. 61, s. 72 . Assignment of plans 8(1) A licensee may, with the consent of the purchaser, assign a prearranged funeral plan to another licensee; but shall give notice in writing of the assignment to the authorized trustee. Action by authorized trustee 8(2) Where an assignment of a prearranged funeral plan is made to another licensee, the authorized trustee maintaining the special fund on behalf of the licensee shall make all necessary changes in the records and funds in order to make the assignment complete; and, if the special fund of the assignee is maintained elsewhere than with that authorized trustee, moneys held under the assigned prearranged funeral plan may be transferred to the special fund maintained on behalf of the assignee, upon the payment of such charges and fees as may be prescribed in the regulations. Where Act not applicable 9 This Act does not apply to a fraternal society licensed under The Insurance Act or to an employees' mutual benefit society, a friendly society, or a trade union benefit society, as those expressions are defined in that Act. S.M. 2021, c. 61, s. 72 . Offence and penalty 10(1) Any person who, (a) not being a licensee under this Act, agrees for remuneration or reward (i) to provide funeral services, or (ii) to arrange for the provision of funeral services, under a prearranged funeral plan; or (b) being a licensee under this Act, contravenes, disobeys, or omits, refuses, or neglects to observe any provision of this Act; is guilty of an offence and is liable, on summary conviction, if an individual, to a fine of not more than $1,000., and, in default of payment, to imprisonment for not more than three months, and, if a corporation, to a fine of not more than $2,000. Offence and penalty 10(2) Any person who contravenes, disobeys, or omits, refuses, or neglects, to observe any provision of this Act or of the regulations is guilty of an offence and, if no other penalty is expressly provided therefor, is liable, on summary conviction, if an individual, to a fine of not more than $200. and, in default of payment, to imprisonment for not more than one month or, if a corporation, to a fine of not more than $500. Limitation period 10(3) A prosecution for an offence under this Act may be commenced not more than one year after the day on which evidence sufficient to justify a prosecution for the offence came to the knowledge of the director. S.M. 2010, c. 33, s. 22 ; S.M. 2021, c. 61, s. 72 . Cancellation of licence 11(1) Subject as herein provided, upon sufficient cause being shown to the director, the director may suspend, and after due notice and hearing, cancel a licence issued under this Act. Transfer of rights and obligations upon cancellation 11(2) If a purchaser or their personal representative agrees, the director, upon cancellation of a licence, may order that all rights and obligations under a prearranged funeral plan vested in, or charged on, the licensee, shall be transferred to, vested in and charged on, another licensee, and the director shall cause notice of the order to be given to the authorized trustee and to the purchaser and every other person affected thereby. Effect of order 11(3) An order made under subsection (2) has effect according to its terms and is binding on all persons affected thereby. S.M. 2021, c. 61, s. 72 . Act not applicable to existing plans 12 This Act does not apply to prearranged funeral plans entered into before June 5, 1961. Funds exempt from seizure 13 Any moneys standing to the credit of a licensee or other person in respect of a prearranged funeral plan are not, while in the hands of the authorized trustee or while in course of transmission from or to the licensee, liable to demand, seizure, garnishment, or detention under legal process as against the purchaser under the plan or the purchaser's personal representative, or as against the licensee to whom the money is to be paid under the prearranged funeral plan for the provision of funeral services. S.M. 2021, c. 61, s. 72 . Not life insurance 14 A prearranged funeral plan is not a contract of life insurance within the meaning of The Insurance Act . Trust funds 15 Subject to section 6, where any person agreeing to provide funeral services under a prearranged funeral plan receives moneys from a purchaser thereof, those moneys other than the sum, if any, retained pursuant to subsection 4(2), whether in the hands of the person agreeing to provide funeral services under a prearranged funeral plan or in the hands of any other person to whom the moneys may be given or entrusted, or with whom they may be deposited, shall be held in trust for the purchaser, and shall not be paid out or released to anyone without the written consent and direction of the director. S.M. 2021, c. 61, s. 72 . Regulations 16 For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders (a) designating an authorized trustee or authorized trustees under this Act; (b) governing the issue of licences and prescribing the terms and conditions under which they are issued; (c) fixing the minimum portion to be stated in an agreement to which subsection 5(3) applies; (d) prescribing the manner in or the extent to, or both, which interest or income or both shall accrue on moneys paid under a prearranged funeral plan before the licensee may withdraw or the authorized trustee may release the accrued interest or income; (e) prescribing the reports to be made under this Act, the times when they shall be made, and the information to be contained therein; (f) prescribing the fee, if any, to be paid on the issue of each licence and the fee, if any, to be paid for services rendered under this Act; (g) prescribing the charges and fees, if any, to be paid on the transfer of funds consequent on the assignment of a prearranged plan; (h) prescribing the time within which moneys held in trust by a licensee shall be paid to the authorized trustee. S.M. 2019, c. 11, s. 12 .