as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. F200
The Prearranged Funeral Services Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
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")
"board" means The Public Utilities Board; ("Régie")
"funeral director" means a person who regularly carries on the business of supplying funeral services and maintains an establishment for that purpose in Manitoba; ("entrepreneur de pompes funèbres")
"funeral services" means 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")
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.
Subject to subsection (3), unless he is 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.
A licensee may employ a salesman or a person to act as his agent, and such agent may in turn employ a salesman for the purpose of soliciting persons to enter into prearranged funeral plans with the licensee; but no person shall act as such agent or salesman unless he
(a) holds a valid and subsisting written authority from the licensee authorizing him so to act as agent or salesman for the licensee;
(b) files with the board a surety bond in a form acceptable to the board 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 board, a licence under this Act to act as agent or salesman of a licensee.
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.
Every contract entered into by a purchaser through an agent or salesman shall be made between the purchaser and a specific licensee and in no case shall an agent or salesman be a party to the contract.
A funeral director desiring to provide funeral services for remuneration, reward, or compensation under prearranged funeral plans may apply to the board for a licence under this Act to enter into prearranged funeral plans in accordance with the regulations.
Where the board 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 board may issue to the applicant a licence in the form prescribed in the regulations.
A licence may be made subject to such terms and conditions as may be prescribed in the regulations or by the board.
Each licence issued under this section expires on March 31 next following the date of the issue thereof.
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.
The board may, where it considers it necessary, after notice in writing to and hearing the licensee or his representative, vary, add to, or revoke part or all of the terms, conditions or restrictions.
Part I of The Public Utilities Board Act applies so far and to the extent that it is applicable to the carrying out of this Act.
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 his personal representative, as the case may be.
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.
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.
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.
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 his behalf, that interest or income, until the interest or income has accrued in a manner, and to the extent, prescribed in the regulations.
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 board, 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.
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.
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 his personal representative, upon the joint authorization of the licensee and the purchaser or his personal representative, or if the licensee is not available or refuses to authorize repayment, upon the direction of the board; 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.
Where, after a plan has been in operation for at least three years, a payment is made pursuant to clause (l)(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).
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 of the payments required by him under a prearranged funeral plan, his personal representative may, at his option, pay to the licensee, any unpaid balance payable by the purchaser to the licensee under the plan.
Every licensee shall report, at such periods as may be prescribed in the regulations, to the board concerning any prearranged funeral plans undertaken by the licensee; and he shall give to the board such information in respect thereof as is required in the regulations.
Every authorized trustee shall prepare, as of December 1 in each year or as of such other date as the board 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.
The authorized trustee shall send the statement required by subsection (2) to the board 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.
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.
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.
This Act does not apply to a mutual benefit society or 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.
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.
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.
Subject as herein provided, upon sufficient cause being shown to the board, it may suspend, and after due notice and hearing, cancel a licence issued under this Act.
If a purchaser or his personal representative agrees, the board, 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 board shall cause notice of the order to be given to the authorized trustee and to the purchaser and every other person affected thereby.
An order made under subsection (2) has effect according to its terms and is binding on all persons affected thereby.
This Act does not apply to prearranged funeral plans entered into before June 5, 1961.
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 his 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.
A prearranged funeral plan is not a contract of life insurance within the meaning of The Insurance Act.
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 board.
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 forms thereof and 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.