Senate Bill No. 723
(By Senator Chafin)
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[Introduced February 19, 2007; referred to the Committee on the
Judiciary.]
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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; designating 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, be 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 this code;
(3) (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 this 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 article 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 years of age, who has been duly and lawfully designated,
and who has accepted the designation, to act for the principal, and
who has responsibility under the authority of a funeral service
licensee 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, 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 nonrelative of the principal, except
as otherwise provided 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) A surviving parent of the deceased;
(D) A surviving brother or sister of the deceased;
(E) The surviving adult grandchildren of the deceased;
(F) A surviving adult niece or nephew 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 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
this code, all health care facilities, as defined in section two,
article two-d, chapter sixteen of this code, all funeral directors
or embalmers and funeral establishments as defined in article six,
chapter thirty of this 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 article.
(c) The individual making the designation pursuant to
subsection (a) of this section shall designate a primary agent, but
is not required to designate an alternate agent. A person so
designated as the funeral planning agent is not 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 nonrelative 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 nonrelative
simultaneously. The designated agent or alternate agent shall sign
the designation accepting the appointment. A person accepting the
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.
(e) All individuals, facilities, and establishments listed in
subsection (b) of this section shall be held harmless, and are not
subject to civil suit, either as an individual, partnership or
corporation for complying with the provisions of this article.
(f) An individual designated as a primary funeral planning
agent or as an alternate agent has no authority after the death of
the individual making the designation to invalidate, revoke or
substantially modify a preneed funeral contract executed by the
individual making the designation in accordance with the provisions
of article fourteen, chapter forty-seven of this code prior to
their death and either paid in full before their death or
collectible from the proceeds of a life insurance policy
specifically designated for that purpose.
§44-16-4. Form of designation.
(a) The designation provided 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 nonrelative to the agent, then I am the only nonrelative
for whom the agent is serving as a funeral planning agent. This
document revokes and makes 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 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 or the disposition of his or her remains with their
funeral planning agent or agents.
(d) This article does not prohibit the participation of other
individuals in the funeral planning process as well as the funeral
itself. An individual is not required to designate a funeral
planning agent under the provisions of this article.
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 where 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
this code;
(2) (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: The purpose of this bill is to create 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 funeral
preparation and planning, burial or disposition of 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, 2, 3 and 4 are new; therefore, strike-throughs and
underscoring have been omitted.