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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