Subject 590-3-3 PERPETUAL CARE CEMETERIES
In addition to the documents specified in O.C.G.A. Sec. 10-14-4(b)(1), each cemetery owner shall file:
certified copy of a plat of the land indicating the following:
|(2)||Satisfactory evidence that the cemetery owner holds an unencumbered fee simple title to the required minimum number of acres required by O.C.G.A. § 10-14-10. Undeveloped cemetery property in excess of the minimum number of acres required by the Act may be encumbered for the purpose of improving or developing such property to be used for cemetery purposes.|
Each cemetery owner required to register with the Secretary of State shall file an annual report in a form specified by the Secretary of State.
|(1)|| The report shall be deemed
to be timely filed if it is either:
|(2)||The report must include all supporting documentation including, but not limited to, a calendar year end bank statement. In the event the trustee is a financial institution, the calendar year end bank statement shall be submitted to the Office of the Secretary of State by such institution. All other required documentation shall be filed by the cemetery owner.|
|(1)||Deed or Certificate. A deed or other certificate to a grave space or other burial right shall be issued by a cemetery whenever the space is used for the interment of human remains or whenever the space is fully paid for.|
|(2)||Corporate and Financial Records. Each perpetual care cemetery required to register with the Secretary of State shall keep and maintain its business and financial records for the cemetery and its perpetual care trust fund as segregated records separate and apart from the records of any other cemetery, trust, or business, including any other cemetery or business of the cemetery owner, cemetery salespersons, or perpetual care trustee.|
|(3)||Plat of Real Property. Each perpetual care cemetery required to register with the Secretary of State shall cause to be made a plat in accordance with Official Code of Georgia Annotated § 44-2-26, as now or hereafter amended. A copy of said plat shall be kept and made available for public inspection at the cemetery's principal place of business in Georgia that is open to the public.|
Journal. Each perpetual care cemetery required to register with Secretary of
State shall keep and maintain a sales journal at the cemetery's principal place
of business. Said sales journal shall contain, at a minimum, the following
|(5)|| Space Lot Journal. Each perpetual care
cemetery required to register with the Secretary of State shall keep and
maintain a space lot journal or equivalent records at the cemetery's principal
place of business in Georgia. Said space lot journal shall contain at a
minimum, the following items:
|(6)|| Deed Book. Each perpetual care cemetery
required to register with the Secretary of State shall keep and maintain one
permanent deed book at the cemetery's principal place of business in Georgia.
Said deed book shall contain, at a minimum, the following items:
|(7)||Copies of Deeds or Certificates. Each perpetual care cemetery required to register with the Secretary of State shall keep and maintain a copy (photostatic or otherwise) of every deed or certificate issued on or after August 1, 1989. Said copies shall be available for inspection upon request by the Secretary of State.|
If a perpetual care cemetery required to register with the Secretary of State contains lots, sections, or parcels for which perpetual care is not promised and maintained, the nonperpetual care section shall be physically separate or distinguished from the perpetual care sections, and both nonperpetual care and perpetual care sections shall be clearly marked and designated. This requirement may be satisfied by the installation of an identifying sign, of a size not less than one-half (1/2) square foot, spaced not less than every one hundred (100) feet along the perimeter of each nonperpetual care section, identifying any nonperpetual care section as such. Any plat of the cemetery filed with the Secretary of State, and any map of the cemetery provided to any person, shall likewise identify any nonperpetual care portion of the cemetery. In the event a cemetery does not post such signs and depict such information on its plat with respect to any section or portion, such property may be considered to be a perpetual care cemetery portion.
|(1)|| Deposits to the perpetual care trust fund
shall be whichever is the greatest of:
|(2)||For the purposes of determining appropriate uses of interest and earnings from the perpetual care trust fund, in addition to other elements of care and maintenance specifically enumerated in the Act and these Rules, a cemetery may use such funds for restoration and maintenance of monuments that are in disrepair.|
|(3)||Each cemetery owner that has sold more than 50 percent of available lots may withdraw 95 percent of the income from the perpetual care trust fund after certifying compliance with the requirements of this section by submitting written notice to the Secretary. The cemetery owner shall have a continuing duty to notify the Secretary of any additional land developed for burial purposes. If such further development results in less than 50 percent of available lots unsold, the income earned must be retained by the perpetual care trust fund until such time as more than 50 percent of the available lots are sold.|
|(4)||Each cemetery owner shall establish a perpetual care trust fund separate and distinct from any previously existing perpetual care trust fund for the purpose of making required deposits for sales occurring after July 1, 2000. If allowed by the terms of any perpetual care trust fund existing as of such date, any cemetery owner may, upon notice to the Secretary of State, deposit into such new account the entire balance of any previously established account, which deposit shall be irrevocable and which funds shall then become subject to the provisions of the trust agreement for such new account and the provisions of the Act relative to such new account. If allowed by the terms of any perpetual care trust fund agreement existing as of such date, the cemetery may make additional deposits to such a trust fund on the condition that the entire corpus of the trust fund, any income earned by the trust fund, and any subsequent deposits to the trust fund are thereafter governed by the provisions of the Act.|
|(5)||Pursuant to Section 10-14-6 of the Act, beginning July 1, 2003, and every three years thereafter, the Secretary of State shall adjust the $50.00 minimum deposit required to be made to the perpetual care trust fund based on the rate of change in the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor. Using the Consumer Price Index, All Urban Customers, U.S. City Average, All Items, released in June of 2003 and every third year thereafter, the Secretary of State shall calculate the adjusted minimum deposit and inform all cemeteries registered under the Act by mailing a Notice of Deposit Adjustment.|
|(1)|| The following persons may act as the
trustee of the perpetual care trust fund required by § 10-14-6 of the Act:
|(2)||Any prospective trustees of a type not specifically described in the Act or these Rules may petition the Secretary of State for approval.|
|(3)||Upon approval of the Secretary of State, a cemetery owner or an officer or director of a cemetery company or its affiliate may act as trustee of a perpetual care trust fund if the account documents require the signature of the Secretary of State or his or her authorized representative in order for any withdrawal to be made from said account and if the depository agreement is in a form satisfactory to the Secretary of State.|
|(1)|| The following persons may act as the
depository of the perpetual care trust fund required by Sec.
10-14-6 of the Act:
financial institution shall serve as a depository unless it either:
|(3)||In making any investments and in acquiring and retaining those investments and managing the perpetual care trust fund, the trustee shall exercise the judgment and care, under the circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.|
|(4)|| Funds in a perpetual care trust account
into which deposits are made on account of sales occurring on or after July 1,
2000 shall be invested and reinvested according to Sec.
10-14-6(f) of the
Act, which includes, but is not limited to, investing the funds in manner in
which the funds are not subject to a risk of capital loss; in investments
guaranteed by a governmental insurance entity of the type described in Sec.
the Act, or in a high-quality bond, note or certificate of deposit issued by
any of the following:
|(1)||Discounting of Factoring of Accounts Receivable. If a cemetery discounts or factors the accounts receivable created by the sale of cemetery lots on a full recourse basis or signs a collateral agreement making the cemetery remain liable upon default of a cemetery lot contract, any sales contract involved is not deemed to be paid in full for a period not to exceed six (6) years from the execution date of the contract until the factor or purchaser of the accounts receivable is paid in full by the purchaser of the cemetery lot. If a cemetery discounts or factors said accounts receivable on a nonrecourse basis, any sales contracts involved is deemed to be paid in full at the time of discounting or factoring of the account.|
|(2)||Repurchase and Subsequent Sale. If a cemetery, cemetery company, or cemetery salesperson repurchases or otherwise obtains a burial space from a previous purchaser and sells the lot again to a subsequent purchaser, a deposit to the perpetual care trust fund for the subsequent sale shall be made in accordance with section 10-14-6(b) of the Act.|
|(3)||In-Kind Trade. If a cemetery, cemetery company or cemetery salesperson makes an in-kind trade of a lot, mausoleum crypt, or niche in one cemetery for any other lot, mausoleum crypt, or niche in any other cemetery, a deposit to the perpetual care trust fund for the lot so given shall be made in accordance with section 10-14-6(b) of the Act.|
|(4)||Intra-cemetery Trades. If a cemetery lot, crypt, or niche is traded for another cemetery lot, crypt, or niche in the same cemetery, any amount actually deposited to the perpetual care trust fund for the lot, crypt, or niche so traded will be allowed as a credit for the deposit required to the perpetual care trust fund for the new purchase.|
|(2)|| Review. Any perpetual care trust
agreement may be subject to the review and approval of the Secretary of State
to determine compliance with the Act and these Rules. In the event the
Secretary of State determines, after review, that the agreement does not comply
with the Act and applicable Rules, the perpetual care cemetery shall be
notified in writing by the Secretary of State regarding any changes required to
be made for compliance with the Act and the Rules.
|(4)||Certification. Each Perpetual Care Trust Fund Agreement submitted to the Secretary of State must include a certification clause verifying that the agreement is in accordance with the Act and the Rules and Regulations.|
No cemetery owner may charge a fee for the removal, reinstallation or relocation of any monument unless the fee is included in the schedule of charges filed with the Registration Application or as an amendment thereto.
In addition to those exceptions expressly provided for by statute, pursuant to O.C.G.A. Sec. 10-14-4(e), a cemetery which meets the following criteria and which would otherwise be required to register under the Act shall be exempt from registration:
|(1)||The cemetery is owned and operated by a Georgia not-for-profit corporation, or a foreign not-for-profit corporation qualified to do business in Georgia;|
|(2)||No officer, director or member of such corporation receives any compensation in connection with the ownership, operation or management of the cemetery property;|
|(3)||No officer, director or member of such corporation, nor any immediate family member thereof, conducts any business on the property of such cemetery, or supplies any cemetery or funeral services or merchandise on such property, provided that such an individual may be paid a reasonable amount for property maintenance services actually performed by such person on the property;|
|(4)||The cemetery is less than 25 acres in size; and|
|(5)||No consideration is received by the cemetery or its owner for any cemetery or funeral services or merchandise other than for burial spaces, provided that owners of such burial spaces, their family members, friends and heirs, may contribute funds and in-kind goods and services to the corporation for the purpose of maintaining the cemetery property.|
In the event any sale is made on an installment basis, the perpetual care trust fund shall receive the appropriate percentage of each installment payment first prior to any additional allocation of funds until the minimum amount required to be placed in the perpetual care trust fund, pursuant to the Act, has been paid in full.