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
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
(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
(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
(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
(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
(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
(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
(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
( ) 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
(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.
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.