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Introduced Version House Bill 3215 History

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hb3215 intr
H. B.3215


(By Delegates Mahan, Hatfield, Amores and Marshall )



[Introduced March 24, 2005; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact §30-6-3 and §30-6-22 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §44-16-1, §44-16-2, §44-16-3 and §44-16-4; and to amend and reenact §61-12-9 of said code, all relating to the creation of the Funeral Planning Agent Designation Act; providing that a funeral planning agent may authorize cremation; providing that a designated funeral planning agent may authorize funeral arrangements; designating the title of the act; definitions; designation of funeral planning agent; form of designation; and authority to enter into cremation contract.

Be it enacted by the Legislature of West Virginia:
That §30-6-3 and §30-6-22 of the code of West Virginia, 1931, as amended and reenacted; that said code be amended by adding thereto a new article, designated §44-16-1, §44-16-2, §44-16-3 and §44-16-4; and that §61-12-9 of said code be amended and reenacted, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS.
§30-6-3. Definitions.
As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:
(a) "Apprentice" means a person who is preparing to become a licensed funeral director and embalmer and is learning the practice of embalming, funeral directing or cremation under the direct supervision and personal instruction of a duly licensed embalmer or funeral director.
(b) "Authorized representative" means a person legally authorized or entitled to order the cremation of the deceased, as established by rule. An authorized representative may include the following:
(1) The deceased;
(2) The deceased's next of kin;
(3) The deceased's funeral planning agent designated pursuant to article sixteen, chapter forty-four of the code;
(4)
A court order;
(4) (5) A public official who is charged with arranging the final disposition of an indigent deceased; or
(5) (6) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science.
(c) "Board" means the West Virginia board of funeral service examiners.
(d) "Certificate" means a certification by the board to be a crematory operator.
(e) "Courtesy card holder" means a person who only practices funeral directing periodically in West Virginia and is a licensed embalmer and funeral director in a state which borders West Virginia.
(f) "Cremated remains" or "cremains" means all human remains, including foreign matter cremated with the human, recovered after the completion of cremation.
(g) "Cremation" means the mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments and then further reduced by additional pulverization, burning or re-cremating when necessary.
(h) "Crematory" means a licensed place of business where a deceased human body is reduced to ashes and bone fragments and includes a crematory that stands alone or is part of or associated with a funeral establishment.
(i) "Crematory operator" means a person certified by the board to operate a crematory.
(j) "Crematory operator in charge" means a certified crematory operator who accepts responsibility for the operation of a crematory.
(k) "Deceased" means a dead human being for which a death certificate is required.
(l) "Embalmer" means a person licensed to practice embalming.
(m) "Embalming" means the practice of introducing chemical substances, fluids or gases used for the purpose of preservation or disinfection into the vascular system or hollow organs of a dead human body by arterial or hypodermic injection for the restoration of the physical appearance of a deceased.
(n) "Funeral" means a service, ceremony or rites performed for the deceased with a body present.
(o) "Funeral directing" means the business of engaging in the following:
(1) The shelter, custody or care of a deceased;
(2) The preparation of a deceased for burial or other disposition;
(3) The arranging or supervising of a funeral or memorial service for a deceased; and
(4) The maintenance of a funeral establishment for the preparation, care or disposition of a deceased.
(p) "Funeral director" means a person licensed to practice funeral directing.
(q) "Funeral establishment" means a licensed place of business devoted to: The care, preparation and arrangements for the transporting, embalming, funeral, burial or other disposition of a deceased. A funeral establishment can include a licensed crematory.
(r)"Funeral service licensee" means a person licensed after the first day of July, two thousand three, to practice embalming and funeral directing.
(s) "License" means a license, which is not transferable or assignable, to:
(1) Practice embalming and funeral directing;
(2) Operate a crematory or a funeral establishment.
(t) "Licensee" means a person holding a license issued under the provisions of this article.
(u) "Licensee in charge" means a licensed embalmer and funeral director who accepts responsibility for the operation of a funeral establishment.
(v) "Memorial service" means a service, ceremony or rites performed for the deceased without a body present.
(w) "Mortuary" means a licensed place of business devoted solely to the shelter, care and embalming of the deceased.
(x) "Person" means an individual, partnership, association, corporation, not-for-profit organization or any other organization.
(y)"Registration" means a registration issued by the board to be an apprentice to learn the practice of embalming, funeral directing or cremation.
(z) "State" means the state of West Virginia.
§30-6-22. Disposition of body of deceased person; penalty.
(a) No public officer, employee, physician or surgeon, or any other person having a professional relationship with the deceased, shall send, or cause to be sent, to any embalmer, funeral director or crematory operator the body of any deceased without first inquiring the desires of the funeral planning agent designated pursuant to article sixteen, chapter forty-four of the code, the next of kin, or any persons who may be chargeable with the funeral expenses of the deceased. If a funeral planning agent has been designated by the deceased, his or her authority and direction shall be used as to the disposal of the body of the deceased. If any next of kin or person can be found, his or her a funeral planning agent has not been designated, then the authority and direction of any the next of kin, or persons who may be chargeable with the funeral expenses of the deceased shall be used as to the disposal of the body of the deceased.
(b) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars, nor more than one thousand dollars, or imprisoned not less than ten days nor more than ninety days, or both.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 16. FUNERAL PLANNING AGENT DESIGNATION ACT.
§44-16-1 Title.

This act may be known as the "Funeral Planning Agent Designation Act."
§44-16-2 Definitions.
As used in this article:
(1) "Funeral planning agent" means a person who is at least eighteen (18) years of age, who has been duly and lawfully designated, and who has accepted the designation, to act for the principal, and who has authority and responsibility to make all arrangements, regarding funeral preparation, planning, the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted, burial, and/or the disposition of the principal's remains, including cremation, upon the death of the principal. The funeral planning agent may be a relative or a non-relative of the principal, except as otherwise provided for in subsection (d) of section three of this article.
(2) "Principal" means the person designating another individual or individuals to serve as his or her funeral planning agent upon the person's death.
(3) "Relative" means:
(A) The surviving spouse of the deceased;
(B) The surviving adult children of the deceased;
(C) The surviving parent(s) of the deceased;
(D) The surviving brother(s) or sister(s) of the deceased;
(E) The surviving adult grandchildren of the deceased;
(F) The surviving adult niece(s) or nephew(s) of the deceased; or
(G) The guardian of the person of the deceased at the time of his or her death.
§44-16-3 Designation of funeral planning agent.
(a) Any individual who is at least eighteen (18) years of age and of sound mind is allowed to designate a primary funeral planning agent and alternate agent, if they wish.
(b) All health care providers, as licensed under the provisions of articles three, four, and fourteen, chapter thirty of the code, all health care facilities, as defined in section two, article two-d, chapter sixteen of the code, all funeral directors/embalmers and funeral establishments as defined in article six, chapter thirty of the code, and all crematories and cemeteries, as well as their agents and employees shall be required to comply with all of the provisions of this act.
(c) The individual making the designation pursuant to subsection (a) of this section shall designate a primary agent, but shall not be required to designate an alternate agent. No person so designated as the funeral planning agent shall be required to take on the responsibilities of said designation if they are unwilling or incapable of doing so.
(d) No person may act as a primary funeral planning agent or alternate agent for more than one non-relative at any one time except that a person may serve as a funeral planning agent to any and all of their own relatives and any one non-relative simultaneously. The designated agent or alternate agent shall sign the designation accepting the appointment. A person accepting said appointment shall assume ultimate responsibility for ensuring full payment of all expenses and costs connected to the funeral of the principal from the principal's resources, or in the event the principal's resources are insufficient to ensure full payment, from the agent's own personal financial resources.
(e) All individuals, facilities, and establishments listed in subsection (b) of this section shall be held harmless, and shall not be subject to civil suit, either as individual(s), partnership(s) or corporation(s) for complying with the provisions of this article.
§44-16-4 Form of designation.
(a) The designation provided for in section three of this article may be in substantially the following form:
I, (PRINCIPAL), do hereby name and designate (PRIMARY AGENT) as my primary funeral planning agent, or if he/she is unwilling or incapable (ALTERNATE AGENT) as my alternate funeral planning agent, who shall have the sole responsibility and authority to make any and all arrangements and decisions regarding my funeral preparation and planning, burial or disposition of my remains, including cremation, upon my death. By signing this document, the aforementioned agent(s) agree to ensure payment for all outstanding expenses related to my funeral. The agent further certifies that if I am a non-relative to the agent, then I am the only non-relative for whom the agent is serving as a funeral planning agent. This document shall revoke and shall make null and void any and all previous designations of a funeral planning agent.
_________________________
__________________________

Witness
Principal

(Name and address of Witness)
(Name and address of Principal)

Dated: _________________
Dated: ___________________

_________________________
__________________________

Primary Agent
Alternate Agent

(Name and Address of
(Name and Address of

Primary Agent)
Alternate Agent)

Dated: ________________
Dated: ___________________

State of _____________ County of ______________
Subscribed and sworn to before me this _________day of _______________________, 20__
_______________________________

(Notary Public)
(b) Upon the proper and complete execution of a funeral planning agent designation form, a signed notarized original thereof shall be given to the principal executing the form, the primary funeral planning agent, and the alternate funeral planning agent, if any.
(c) The principal is encouraged to review in detail his or her specific wishes regarding the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted, and/or the disposition of his or her remains with their funeral planning agent(s).
(d) This chapter shall not be construed to prohibit the participation of other individuals in the funeral planning process as well as the funeral itself. No individuals shall be required to designate a funeral planning agent under the provisions of this chapter.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT

ARTICLE 12. POSTMORTEM EXAMINATIONS.
§61-12-9. Permits required for cremation; fee.
(a) It is the duty of any person cremating, or causing or requesting the cremation of, the body of any dead person who died in this state, to secure a permit for the cremation from the chief medical examiner, the county medical examiner or county coroner of the county wherein the death occurred. Any person who willfully fails to secure a permit for a cremation, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred dollars. A permit for cremation shall be acted upon by the chief medical examiner, the county medical examiner or the county coroner after review of the circumstances surrounding the death, as indicated by the death certificate. The person requesting issuance of a permit for cremation shall pay a reasonable fee, as determined by the chief medical examiner, to the county medical examiner or coroner or to the office of the chief medical examiner, as appropriate, for issuance of the permit.
(b) Any person operating a crematory who does not perform a cremation pursuant to the terms of a cremation contract, or pursuant to the order of a court of competent jurisdiction, within the time contractually agreed upon, or, if the cremation contract does not specify a time period, within twenty-one days of receipt of the deceased person's remains by the crematory, whichever time is less, is guilty of a misdemeanor.
(c) Any person operating a crematory who fails to deliver the cremated remains of a deceased person, pursuant to the terms of a cremation contract, or pursuant to the order of a court of competent jurisdiction, within the time contractually agreed upon, or, if the cremation contract does not specify a time period, within thirty-five days of receipt of the deceased person's remains by the crematory, whichever time is less, is guilty of a misdemeanor.
(d) Any person convicted of a violation of the provisions of subsection (b) or (c) of this section shall be fined not less than one thousand dollars nor more than five thousand dollars or confined in the county or regional jail for a period not to exceed six months, or both.
(e) In any criminal proceeding alleging that a person violated the time requirements of this section, it is a defense to the charge that a delay beyond the time periods provided for in this section were caused by circumstances wholly outside the control of the defendant.
(f) For purposes of this section, "cremation contract" means an agreement to perform a cremation, as a "cremation" is defined in subsection (g), section three, article six, chapter thirty of this code. A cremation contract is an agreement between a crematory and any authorized person or entity, including, but not limited to:
(1) The deceased person, prior to his or her death;
(2) The deceased person's funeral planning agent designated by the deceased pursuant to article sixteen, chapter forty-four of the code;
(3)
The deceased person's next of kin;
(3) (4) A public official charged with arranging the final disposition of an indigent deceased person or an unclaimed corpse;
(4) (5) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science;
(5) (6) A public officer required by statute to arrange the final disposition of a deceased person;
(6) (7) Another funeral establishment; or
(7) (8) An executor, administrator or other personal representative of the deceased.

Note: This bill creates the "Funeral Planning Agent Designation Act", which provides that a person may designate another to have the sole responsibility and authority to make any and all arrangements and decisions regarding my funeral preparation and planning, burial or disposition of my remains, including cremation, for a person upon their death.


Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§§44-16-1 through and 44-16-4 are new, therefore, strike-throughs and underscoring have been omitted.
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