The Honorable Dan J. Leonard
AGO 2011-5
Official Opinion No. 2011-5
Indiana Attorney General Opinion
July 19, 2011
The
Honorable Dan J. Leonard
Indiana
House of Representatives
200 W.
Washington St.
Indianapolis,
IN 46204
RE:
Cemetery Perpetual Care Funds
Dear
Representative Leonard:
You
recently asked whether Cemetery Perpetual Care Funds
established under Ind. Code Chpt. 23-14-48 are subject to
Ind. Code Chpt. 30-2-12 (“the Uniform Management of
Institutional Funds statute.”)
BRIEF
ANSWER
The
Uniform Management of Institutional Funds statute does not
apply to a cemetery perpetual care fund for a cemetery
organized and having its first burial after March 6, 1953. It
would apply to a perpetual care fund established prior to
that date if the fund is not administered by an outside
trustee. Regardless of the date of establishment, a cemetery
perpetual care fund must comply with the Indiana Uniform
Prudent Investor Act (Ind. Code Chpt. 30-4-3.5).
ANALYSIS
The
statutory requirements for administration of cemetery
perpetual care funds vary depending on the date the fund was
established. For a cemetery organized and having its first
burial after March 6, 1953, Ind. Code § 23-14-48-4 and
Ind. Code § 23-14-48-5 require that the cemetery owner
deposit the fund in a financial institution, and designate
the financial institution as trustee of the fund. Those trust
funds are not subject to the Uniform Management of
Institutional Funds statute. The Uniform Management of
Institutional Funds statute governs endowments and other
charitable funds that are managed by the institution rather
than an outside trustee such as a financial institution.
Prior to 2007, the statute applied only to college and
university endowments, nonprofit endowments valued at ten
million dollars or more, and community foundations. Public
Law 226-2007 expanded the scope of the statute to include
“institutional funds” held by a charitable
institution exclusively for charitable purposes. Ind. Code...