W. Va. Code R. § 6-1-25

Current through Register Vol. XLI, No. 19, May 10, 2024

Section 6-1-25 - Authorized representatives; right to control and duty of disposition

25.1. Advance directives, medical power of attorney and will of decedent.

A person may direct the preparation for, type, or place of his or her own final disposition, either by oral or written instructions. The authorized representative otherwise entitled to control the final disposition pursuant to W.Va. Code § 30-6-3 and this rule shall faithfully carry out the reasonable and otherwise lawful directions of the decedent to the extent that the decedent has provided resources for the purpose of carrying out the directions. If the instructions are contained in a will, they shall be immediately carried out, regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date, subject to other provisions of this chapter or any other law of this state. If the instructions are contained in a valid medical power of attorney document, they shall be immediately carried out, pursuant to W.Va. Code § 16-30-1, et. seq. This subsection shall be administered and construed so that the reasonable and lawful instructions of the decedent or the person entitled to control the final disposition shall be faithfully and promptly performed

25.2. Determination of right to control and duty of disposition.

The right to control the disposition of the remains of a deceased person, including the location and conditions of final disposition, unless other directions have been given by the decedent pursuant to subsection 25.1. of this section, vests in, and the duty of final disposition of the body devolves upon, the following authorized representative in the order named:

25.2.1. the person appointed in a dated written instrument signed by the decedent. Written instrument includes, but is not limited to, a health care directive or medical power of attorney executed pursuant to W.Va. Code § 16-30-1, et. seq. of the West Virginia Health Care Decisions Act. Written instrument does not include a durable or nondurable power of attorney which terminates on the death of the principal pursuant to W.Va. Code § 39-4-1, et. seq. of the Uniform Durable Power of Attorney Act;

25.2.2. the surviving, legally recognized spouse;

25.2.3. the surviving biological or adopted child or children of the decedent over the age of majority, provided that, in the absence of actual knowledge to the contrary, a funeral director may rely on instructions given by the child or children who represent that they are the sole surviving child, or that they constitute a majority of the surviving children;

25.2.4. the surviving parent or parents of the decedent or other permanent legal guardian of the decedent;

25.2.5. the surviving biological or adopted sibling or siblings of the decedent over the age of eighteen (18), provided that, in the absence of actual knowledge to the contrary, a funeral director may rely on instructions given by the sibling or siblings who represent that they are the sole surviving sibling, or that they constitute a majority of the surviving siblings;

25.2.6. the person or persons respectively in the next degree of kinship in the order named by law to inherit the estate of the decedent; and

25.2.7. the appropriate public or court authority, as required by law.

For purposes of this subsection, the appropriate public or court authority includes the county Department of Health and Human Resources of the county in which the death occurred if the person dies without apparent financial means to provide for final disposition or the circuit court in the county in which the death occurred.

25.3. Estranged persons.

Where there is only one person in a degree of relationship to the decedent described in subsections 25.2.1. through 25.2.7. of this section and a circuit court, pursuant to subsection 25.5. of this section, determines mat the person and the decedent were estranged at the time of death, the right to control and the duty of disposition shall devolve to the authorized representative or representatives in the next degree of relationship pursuant to subsection 25.2. For purposes of this subsection, "estranged" means having a relationship characterized by mutual enmity, hostility, or indifference.

25.4. Refusal of right to control and duty of disposition.

If a person or persons to whom the right to control and duty of disposition devolve, pursuant to subsection 25.2. of this section, refuses to accept or declines to act upon the right or duty, that right and duty shall pass as follows;

25.4.1. to another person or persons with the same degree of relationship to the decedent as the person or persons refusing to accept or declining to act; or

25.4.2. to the person or persons in the next degree of relationship to the decedent, pursuant to subsection 25.2.

25.5. Disputes.

25.5.1. When a dispute exists regarding the right to control or duty of disposition, the parties in dispute or the funeral director may file a petition in a county circuit court, requesting that the court make a determination in the matter. The petition may be filed as follows:

25.5.1.a. in the circuit court in the county of residence of the decedent or

25.5.1.b. if the decedent resided in another state, in the county where the funeral establishment is located.

25.5.2. Should the right to control and duty of disposition devolve to more than one person with the same degree of relationship to the decedent and those persons cannot, by majority vote, make a decision regarding arrangements and final disposition and a circuit court has been petitioned to make a determination, the court shall consider the following factors in making its determination:

25.5.2.a. the reasonableness, practicality, and resources available for payment of the proposed arrangements and final disposition;

25.5.2.b. the degree of the personal relationship between the decedent and each of the persons in the same degree of relationship to the decedent;

25.5.2.c. the expressed wishes and directions of the decedent and the extent to which the decedent has provided resources for the purpose of carrying out the wishes or directions; and

25.5.2.d. the degree to which the arrangements and final disposition will allow for participation by all who wish to pay respect to the decedent.

25.6. Control by funeral director.

A funeral director shall have complete authority to control the final disposition and to proceed under this chapter to recover reasonable charges for the final disposition when both of the following apply:

25.6.1. the funeral director has actual knowledge that none of the persons described in subsection 25.2. of this section exist or that none of the persons so described can be found after reasonable inquiry or contacted by reasonable means; and

25.6.2. the appropriate public or court authority fails to assume responsibility for disposition of the remains within 36 hours after having been given written notice of the facts. Written notice may be delivered by hand, United States mail, facsimile transmission.

25.7. Immunity.

A funeral director or the funeral establishment shall not be subject to criminal prosecution or civil liability for carrying out the otherwise lawful instructions of the decedent or the person or persons whom the funeral director reasonably believes is entitled to control the final disposition as the authorized representative or representatives.

25.8. Liability for cost of final disposition.

In addition to separate contractual obligations, the liability for the reasonable cost of final disposition devolves upon the estate of the decedent, regardless of whether testate or intestate, and the distributees of the estate, pursuant to Chapter 41 of W. Va. Code relating to wills. In the case of persons who die without apparent financial means to provide for final disposition, control of final disposition and liability devolves to the county Department of Health and Human Resources in which the death occurred, pursuant to W.Va. Code § 9-5-18 relating to funeral expenses for indigent persons and pursuant to W.Va. Code § 9-6-1 et. seq. relating to social services for adults. In the case of bodies delivered as anatomical gifts, pursuant to W.Va. Code § 16-9-1 et. seq. of the Anatomical Gift Act, the institution receiving the body shall bear the responsibility for transportation and final disposition.

25.9. Interference with body or final disposition.

Any person mat arrests, attaches, detains, or claims to detain any human remains for any debt or demand, or upon any pretended lien or charge, or who, without authority of law, obstructs or detains a person charged with the duty or engaged in the final disposition of a dead human body, or fails to release any dead human body upon the receipt of authorization for the release signed by a person or persons entitled to custody of the body is guilty of a misdemeanor. Criminal prosecution shall not preclude the Board from taking any other lawful disciplinary action.

W. Va. Code R. § 6-1-25