Prepaid Funerals Act 2004

Prepaid Funerals Act 2004

This Act may be cited as the Prepaid Funerals Act 2004.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears –

auditor means an auditor who is – a registered company auditor within the meaning of the Corporations Act; and a member of – the Institute of Chartered Accountants; or the Australian Society of Certified Practising Accountants; or the Institute of Public Accountants;

contributor means a person who enters into a prepaid funeral agreement either for his or her own benefit or the benefit of another person;

custodian means a person appointed to manage the business of a funeral trust;

Director means the Director of Consumer Affairs and Fair Trading;

funeral business means a business in the course of which funeral services are supplied or arranged;

funeral services means the provision of – all or part of any funeral, burial or cremation service; or all or part of any services connected with funeral, burial or cremation services – and includes – the attendance of a person to assist with arrangements for a funeral, burial or cremation; and the attendance of a person to assist with the preparation of associated documents and notices; and the transportation of the body of a deceased person; and the use of mortuary facilities or services; and the supply of any goods including a coffin or casket; and the arrangements made for burial or cremation of a deceased person; and the provision of a mobile graveside chapel; and the provision of a lowering device for a coffin or casket; and the preparation of the ashes of a deceased person awaiting inurnment and memorial arrangements;

funeral trust means a funeral trust established under section 10;

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;

person includes a partnership;

prepaid funeral agreement means an agreement to supply funeral services, for payment or other valuable consideration, which is made before the death of the recipient;

recipient means a person for whom funeral services are intended to be provided;

regulations means regulations made and in force under this Act;

relationship status means the status of being married or in a significant relationship, within the meaning of the Relationships Act 2003, or in a caring relationship which is the subject of a deed of relationship registered under Part 2 of that Act;

transferee means a person carrying on a funeral business to which the rights and obligations arising from another funeral business are transferred.

This Act applies to –

all prepaid funeral agreements made after the commencement of this Act; and certain prepaid funeral agreements made before that commencement as mentioned in section 6.

Subject to subsection (3), a person carrying on a funeral business must not make a prepaid funeral agreement unless he or she first provides to the contributor and the recipient the following information:the name, including the business name if any, and the address where the funeral business is carried on; the name of the contributor and the usual residential address of the contributor; the name of the recipient and the usual residential address of the recipient; the name of the prepaid funeral trust to which payments are to be made; full details of each funeral service to be supplied, including details of all goods, services and facilities to be supplied in connection with that funeral service and the cost of each of those goods, services and facilities; the due date for any payment or other valuable consideration in respect of the funeral services by the contributor and how the payment or consideration is to be made or given; where payments under the agreement are to be made by instalment, the amount of each instalment and the date on which each instalment is due; any terms or conditions applying to the conduct of the funeral or to the provision of other funeral services; any fees, brokerage or commission payable to the funeral business or to any other person; the amount of any GST or other amount payable by law by virtue of the agreement; any other information prescribed by the regulations.

A person must not provide any information required under subsection (1) that is incorrect in a material particular. Fine not exceeding 50 penalty units.

A person is not required to provide any information mentioned in subsection (1) to a recipient if – an enduring power of attorney granted by the recipient to the contributor is in force; or the contributor is a person responsible for the recipient within the meaning of section 4 of the Guardianship and Administration Act 1995.

Within 6 months after the commencement of this Act, a person carrying on a funeral business must notify the Director in writing of all prepaid funeral agreements that have been made in the course of that business before the commencement of this Act, unless funeral services have been supplied under the agreement. Fine not exceeding 10 penalty units.

A notification under subsection (1) is to be in a form approved by the Director.

A person must not make a prepaid funeral agreement unless it is made in accordance with this Act. Fine not exceeding 50 penalty units.

A prepaid funeral agreement is to be in writing, signed by each party to the agreement, and is to contain any information required by section 5(1), which information may form part of the agreement or may be given in a separate document at the time when the agreement is made.

If any of the required information is set out in an attachment to the agreement, reference is to be made in the agreement to the attachment.

Within 14 days after making the agreement, the person carrying on the funeral business must give a copy of the signed agreement to the contributor. Fine not exceeding 10 penalty units.

The agreement is to be printed in a font size of at least 10 points.

Any provision in a prepaid funeral agreement which permits the price for any funeral services to be increased is void.

Subsection (6) does not prevent the provision of additional funeral services for which additional charges are payable.

A contributor may, by notice in writing to a person carrying on a funeral business, terminate a prepaid funeral agreement on any of the following grounds:that the recipient has ceased to be ordinarily resident in Tasmania; that the relationship status of the recipient has changed; that in the opinion of the Director it is unreasonable in all the circumstances that the agreement should continue in force; that, in the opinion of the Director, the continued payment of instalments would cause serious hardship for the contributor; that the funeral business has ceased to carry on business and is unable to provide the funeral services; that funeral services have already been supplied in respect of the recipient.

A person carrying on a funeral business may, by notice in writing to the contributor, terminate a prepaid funeral agreement on either of the following grounds:that the funeral business has ceased to carry on business; that the funeral business is unable to provide the funeral services for reasons that were not reasonably foreseeable at the time the agreement was made.

On application by a person carrying on a funeral business, the Director may terminate a prepaid funeral agreement if he or she is satisfied that in all the circumstances it is unreasonable for the agreement to be performed.

Within 14 days after receiving any money under a prepaid funeral agreement, a person carrying on the funeral business must deposit that money in a funeral trust approved by the Director.

Fine not exceeding 100 penalty units.

A funeral trust may be established for the purposes of 2 or more funeral businesses.

The terms of the funeral trust are to be approved by the Director who may impose conditions on the approval if he or she considers it necessary or expedient to do so for the purposes of this Act.

The Director may revoke an approval if satisfied that – an offence against this Act has, or may have, been committed or is likely to be committed; or an investigation is being, or is to be, conducted into the funeral trust and the Director considers it appropriate to revoke the approval; or a condition of the approval has not been complied with.

On the revocation of an approval, the Director must notify the custodian of the funeral trust and any person who has deposited money with the trust of the revocation and the reasons for it.

A funeral trust is of no effect unless it provides for the appointment of a custodian to act as manager of the trust's business.

The custodian must not have any interest in any funeral business that is a beneficiary of the funeral trust and the custodian must not otherwise be a beneficiary of the trust.

The responsibilities of the custodian are to ensure – that payments by the funeral trust are made only in accordance with this Act and a prepaid funeral agreement; and that funds held by the funeral trust are invested in accordance with the Trustee Act 1898; and that the funeral trust is administered in accordance with this or any other Act.

The custodian must ensure that all investments made or held by the funeral trust are made or held in the name of the custodian on behalf of the funeral trust unless otherwise authorised by the Director. Fine not exceeding 10 penalty units.