H. B. 4036

(By Delegate Warner)
[Introduced January 13, 2000; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact section four, article thirty-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one, article one, chapter forty-one of said code; and to amend chapter forty-seven of said code by adding thereto a new article, designated article fourteen-a, all relating to the disposition of human remains; allowing specific instructions to dispose of human remains in a medical power of attorney; allowing for the disposition of human remains in a will; creating a cremation authorization form; establishing requirements for execution, contents, filing, record keeping and revocation of a cremation authorization form; creating duties under a cremation authorization form; providing protection from liability for those relying on a cremation authorization form; and providing the method for resolving conflicts.

Be it enacted by the Legislature of West Virginia:
That section four, article thirty-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section one, article one, chapter forty-one of said code be amended and reenacted; and that chapter forty-seven of said code be amended by adding thereto a new article, designated article fourteen-a, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 30A. MEDICAL POWER OF ATTORNEY.

§16-30A-4. Powers of representative.

(a) The desires of a principal having capacity at all times supersede the effect of the medical power of attorney.
(b) In exercising the authority under the medical power of attorney, the representative has the duty to act consistently with the desires of the principal either as expressed in such medical power of attorney or which have otherwise been made known to such representative. If the principal's desires are unknown, then such representative shall act in the best interests of the principal.
(c) A medical power of attorney may include a statement of the personal values of the principal and specific instructions to the representative to cover particular circumstances, including, without limitation, the disposition of the principal's body upon death by burial, cremation, anatomical gift or other disposition.
(d) A representative shall have the authority to give, withhold or withdraw informed consent to the health care of the principal, which authority shall include, but not be limited to, the following, unless the principal expressly provides to the contrary:
(1) Making decisions relating to medical treatment, surgical treatment, nursing care, medication, hospitalization, care and treatment in a nursing home or other facility, and home health care;
(2) Permitting or gaining access to all medical records;
(3) Acknowledging receipt of notifications of rights or responsibilities and any applicable rules of medical or health care facilities;
(4) Employing or discharging medical providers;
(5) Making decisions about measures for the relief of pain;
(6) Consenting to, refusing or withdrawing any and all medical treatment or diagnostic procedures, including, but not limited to, life-prolonging intervention when in the opinion of two physicians who have examined the principal, one of whom being the principal's attending physician, such life-prolonging intervention offers no medical hope of benefit;
(7) Making decisions about the gift or donation of a body organ or tissue;
(8) Enforcing a declaration made pursuant to the West Virginia Natural Death Act, as provided in chapter sixteen, article thirty of this code: Provided, That where the provisions of such a declaration and the special directives to the representative hereunder are in conflict, the provisions of the document executed later in time shall control or govern.
(e) If proceedings are initiated before a county commission for the appointment of a committee or guardian for the person of the principal subsequent to the execution of a medical power of attorney by the principal, the county commission shall, provided it has notice of a duly executed medical power of attorney, name the representative so designated as committee or guardian of the person for medical decision-making purposes, absent good cause shown against such designation.
CHAPTER 41. WILLS.
ARTICLE 1. CAPACITY TO MAKE; REQUISITES; VALIDITY.

§41-1-1. Who may make will and as to what property.

Every person not prohibited by the following section may, by will, dispose of any estate to which he or she shall be entitled at his or her death, and which, if not so disposed of, would devolve upon his or her heirs, personal representative, or next of kin. The power hereby given shall extend to any estate, right or interest, to which the testator may be entitled at his or her death, notwithstanding he or she may become so entitled after the execution of the will. In addition, every person may, by will, determine the final disposition of his or her body upon death by burial, cremation, anatomical gift or other disposition.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 14A. CREMATION AUTHORIZATION FORMS.
§47-14A-1. Cremation authorization forms.
Any person eighteen years of age or older having capacity to do so may authorize his or her own cremation and the final disposition of his or her cremated remains by executing a cremation authorization form.
§47-14A-2. Executing a cremation authorization form.
A cremation authorization form made pursuant to this article shall be:
(1) In writing;
(2) Signed by the person making the cremation authorization form or by another person in his or her presence at his or her express direction;
(3) Dated;
(4) Signed in the presence of two or more witnesses at least eighteen years of age who must sign the form in his or her presence; and
(5) Acknowledged before a notary public.
§47-14A-3. Contents of a cremation authorization form.
(a) Any cremation authorization form executed in accordance with this article shall contain the following disclosure:
"( ) I do not wish to allow any of my survivors the option of canceling my cremation and selecting alternative arrangements, regardless of whether my survivors deem a change to be appropriate.
( ) I wish to allow only the survivors whom I have designated below the option of canceling my cremation and selecting alternative arrangements, if they deem a change to be appropriate: __________".
(b) All cremation authorization forms shall specify the final disposition of the cremated remains.
§47-14A-4. Filing and record keeping.
(a) A copy of the cremation authorization form shall be provided to the individual executing the form.
(b) Any funeral establishment or crematory providing a cremation authorization form must keep the executed cremation authorization form on file at the funeral establishment or crematory until after the cremation has been performed and compensation has been received.
§47-14A-5. Duties under a cremation authorization form.
At the time of death of an individual who has executed a cremation authorization form or has evidenced his or her intentions as to the disposition of his or her body in a valid medical power of attorney or will, any person in possession of the form, medical power of attorney or will and any person, crematory or funeral establishment charged with making arrangements for the final disposition of the decedent who has knowledge of the existence of a valid executed form, medical power of attorney, or will, shall use his or her best efforts to ensure that the decedent is cremated and that the final disposition of the cremated remains is in accordance with the instructions contained on the cremation authorization form, medical power of attorney or will.
§47-14A-6. Reliance on cremation authorization form.
No funeral establishment, crematory or employee of a funeral establishment or crematory or other person that relies in good faith on a cremation authorization form executed according to this section, medical power of attorney or will shall be subject to liability for cremating the remains in accordance with the provisions of this section. The cremation authorization form, medical power of attorney or will is a complete defense to a cause of action by any person against any other person acting in accordance with that authorization.
Any person, funeral establishment or crematory acting in reliance upon a document executed pursuant to the provisions of this section, medical power of attorney, or will, who has no actual notice of revocation or contrary indication, is presumed to be acting in good faith.
§47-14A-7. Revocation of cremation authorization forms.
An individual may revoke a cremation authorization form which he or she executed in accordance with this article at any time by any of the following methods:
(a) By destruction thereof, either by the individual or by someone in his or her presence and at his or her direction;
(b) By written revocation, signed and dated by the individual or someone acting at his or her direction; or
(c) By a verbal expression of the intent to revoke in the presence of a witness eighteen years of age or older who contemporaneously signs and dates a writing confirming such expression was made.
§47-14A-8. Conflicts.
Where the provisions of a cremation authorization form executed in accordance with this article, the provisions of a medical power of attorney or the provisions of a will are in conflict, the provisions of the document executed last in time shall control or govern.




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

§47-14A is new; therefore, strike-throughs and underscoring have been omitted.