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Burial and Cremation (Scotland) Act 2016

Handling of ashes

Section 51 – Duty of cremation authority before carrying out cremation

137.This section places a duty on a cremation authority to take reasonable steps to ascertain how an applicant wants the ashes to be dealt with before carrying out the cremation. The options for what may be done with ashes are set out in subsection (3). These are for the cremation authority to keep the ashes for the applicant to collect; keep the ashes for the funeral director to collect; or dispose of the ashes in a way indicated by the applicant or as specified in regulations made by the Scottish Ministers.

138.An applicant will be required to indicate what he or she wishes to be done with the ashes when applying for a cremation. A cremation will not be able to take place if the applicant does not provide this information. A cremation authority is expected to discuss the options with an applicant, including advising where particular options are not available (for example, where an applicant wishes the cremation authority to scatter or bury ashes while the applicant is present).

139.An applicant will be able to specify a way in which ashes should be handled (from particular options) but may also authorise the cremation authority to dispose of the ashes in a way specified in regulations made by the Scottish Ministers. The Scottish Ministers will prescribe ways that are considered appropriate for ashes to be disposed of by a cremation authority.

Section 52 – Duty of cremation authority following cremation

140.Section 52 requires a cremation authority to comply with the applicant’s stated wishes about how ashes are to be disposed of as per section 51.

Section 53 – Failure to collect ashes

141.This section sets out the procedure to be followed by a cremation authority where it has retained ashes in line with section 52(2) or (3) but the applicant or funeral director has not collected the ashes as agreed. The cremation authority must take reasonable steps to ascertain whether the applicant wishes the ashes to be retained for longer to enable the applicant or a funeral director to collect the ashes. The cremation authority may agree with the applicant a timescale within which the ashes must be collected in this instance. The applicant may also authorise the cremation authority to dispose of the ashes in a specified manner.

142.Subsections (3) and (4) provide that the options available to the applicant are for the cremation authority to retain the ashes for a further agreed period, for the ashes to be collected by the applicant, or for the funeral director or for the cremation authority to dispose of the ashes in an agreed manner.

143.If the cremation authority is unable to ascertain the wishes of the applicant, subsection (6) enables the cremation authority to either retain or dispose of the ashes in a manner specified in regulations made by the Scottish Ministers.

Section 54 – Power of funeral director in relation to ashes

144.This section sets out the options available to a funeral director when they have collected ashes from the crematorium on behalf of the applicant but the applicant has subsequently failed to collect them from the funeral director as agreed. Subsection (2) requires the funeral director to take further steps to ascertain the wishes of the applicant. The applicant may ask the funeral director to retain the ashes for a further period before collecting them. Where the applicant provides further instructions to the funeral director, the funeral director is obliged to comply with those instructions. If the applicant then does not collect the ashes as agreed, the funeral director may return them to the crematorium. If the applicant informs the funeral director that he or she wishes the funeral director to return the ashes to the cremation authority, the funeral director must do so. If the applicant does not provide any further instructions, the funeral director may return the ashes to the crematorium.

Section 55 – Duties of cremation authority where ashes returned

145.Section 55 places duties on a cremation authority where a funeral director has returned ashes to the cremation authority by virtue of section 54(5). Subsection (2) requires the cremation authority to take reasonable steps to ascertain whether the applicant wishes the cremation authority to retain the ashes for a period specified in regulations made by the Scottish Ministers for collection or for the cremation authority to dispose of them in a manner specified in regulations made by the Scottish Ministers.

146.Subsection (3) requires the cremation authority to retain the ashes for a period specified in regulations made by the Scottish Ministers until they are collected by the applicant, if that is what the applicant indicates under subsection (2).

147.Subsection (4) requires the cremation authority to dispose of the ashes in a manner specified in regulations made by the Scottish Ministers if the cremation authority has ascertained that the applicant wishes the ashes to be dealt with in that way.

148.Subsection (5) provides that where the cremation authority has taken reasonable steps to ascertain the views of the applicant regarding the way in which the applicant wishes the ashes to be dealt with but does not know the applicant’s wishes, the cremation authority may retain the ashes or dispose of the ashes in a manner specified by the Scottish Ministers in regulations where the applicant does not give further indication of his or her wishes as per subsection (2). The cremation authority has discretion to dispose of them in a manner specified in regulations made by the Scottish Ministers.

Section 56 – Handling of ashes: regulations

149.This section confers power on the Scottish Ministers to make regulations relating to the retention, return and disposal of ashes by cremation authorities or the retention and return of ashes by funeral directors.

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

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