H. B. 2117
(By Delegate Warner)
[Introduced February 14, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one, article one, chapter
forty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; 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 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 one, article one, chapter forty-one of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, 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 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 is
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 extends 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
must be:
(a) In writing;
(b) Signed by the person making the cremation authorization
form or by another person in his or her presence at his or her
express direction;
(c) Dated;
(d) 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
(e) 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 must 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 determine 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 determine a change to
be appropriate: __________".
(b) All cremation authorization forms must specify the final
disposition of the cremated remains.
§47-14A-4. Filing and record keeping.
(a) A copy of the cremation authorization form must 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, must 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 is 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 of the authorization, 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 that the
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
controls or governs.
NOTE: The purpose of this bill is to allow for the
disposition of human remains in a will and to create a cremation
authorization form. It establishes requirements for execution,
contents, filing, record keeping and revocation of a cremation
authorization form; and creates duties under a cremation
authorization form, provides protection from liability for those
relying on a cremation authorization form and provides the method
for resolving conflicts.
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.