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S1059................................................by JUDICIARY AND RULES
DECEASED - Amends existing law to enumerate persons authorized to control
the disposition of the remains of a deceased person if the decedent had not
made a prearranged funeral plan; to provide that the authority to control
the disposition of the remains of a deceased person is relinquished if a
person is charged with murder or voluntary manslaughter in connection with
the decedent's death and to provide that such authority shall be returned
if the charges are dropped or the person is acquitted; to define terms; to
provide that certain individuals may permit or perform autopsies under
certain circumstances; to provide that individuals permitting or performing
autopsies shall not be liable unless they have actual notice of certain
facts; and to provide that physicians may not rely upon oral authorization
for the performance of an autopsy if the physician knows the deceased
person opposed autopsies.
02/01 Senate intro - 1st rdg - to printing
02/02 Rpt prt - to Jud
02/12 Rpt out - rec d/p - to 2nd rdg
02/13 2nd rdg - to 3rd rdg
02/20 3rd rdg - PASSED - 31-0-4
AYES -- Boatright, Branch(Bartlett), Brandt, Bunderson, Burtenshaw,
Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde, Hawkins,
Ingram, Ipsen, Keough, King-Barrutia, Lee, Lodge, Richardson, Risch,
Sandy, Schroeder, Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler,
Whitworth, Williams,
NAYS -- None
Absent and excused -- Andreason, Cameron, Danielson, Noh
Floor Sponsor -- King-Barrutia
Title apvd - to House
02/21 House intro - 1st rdg - to Jud
03/20 Rpt out - rec d/p - to 2nd rdg
03/21 2nd rdg - to 3rd rdg
03/26 3rd rdg - PASSED - 59-3-8
AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
Callister, Campbell, Chase, Clark, Collins, Deal, Denney, Ellis,
Ellsworth, Eskridge, Field(13), Field(20), Gagner, Gould, Hadley,
Hammond, Hansen, Harwood, Henbest(Farley), Higgins, Hornbeck, Jaquet,
Jones, Kellogg, Kendell, Kunz, Lake, Langford, Mader, Marley,
McKague, Meyer, Montgomery, Mortensen, Moss, Pearce, Pomeroy,
Raybould, Roberts, Robison, Schaefer, Sellman, Shepherd, Smylie,
Stevenson, Stone, Tilman, Trail, Wood, Young, Mr. Speaker
NAYS -- Cuddy, Ridinger, Smith
Absent and excused -- Bradford, Bruneel, Crow, Loertscher, Moyle,
Pischner, Sali, Wheeler
Floor Sponsor -- Roberts
Title apvd - to Senate
03/28 To enrol
Rpt enrol - Pres signed
03/29 Sp signed - to Governor
03/31 Governor signed
Session Law Chapter 263
Effective: 07/01/01
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature First Regular Session - 2001
IN THE SENATE
SENATE BILL NO. 1059
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO THE DISPOSITION OF DECEASED PERSON'S REMAINS; AMENDING SECTION
3 54-1142, IDAHO CODE, TO ENUMERATE PERSONS AUTHORIZED TO CONTROL THE DISPO-
4 SITION OF THE REMAINS OF A DECEASED PERSON IF THE DECEDENT HAS NOT MADE A
5 PREARRANGED FUNERAL PLAN, TO PROVIDE THAT THE AUTHORITY TO CONTROL THE
6 DISPOSITION OF THE REMAINS OF A DECEASED PERSON IS RELINQUISHED IF A PER-
7 SON IS CHARGED WITH MURDER OR VOLUNTARY MANSLAUGHTER IN CONNECTION WITH
8 THE DECEDENT'S DEATH AND TO PROVIDE THAT SUCH AUTHORITY SHALL BE RETURNED
9 IF THE CHARGES ARE DROPPED OR THE PERSON IS ACQUITTED, TO DEFINE TERMS, TO
10 PROVIDE THAT CERTAIN INDIVIDUALS MAY PERMIT OR PERFORM AUTOPSIES UNDER
11 CERTAIN CIRCUMSTANCES, TO PROVIDE THAT INDIVIDUALS PERMITTING OR PERFORM-
12 ING AUTOPSIES SHALL NOT BE LIABLE UNLESS THEY HAVE ACTUAL NOTICE OF CER-
13 TAIN FACTS, TO PROVIDE THAT PHYSICIANS MAY NOT RELY UPON ORAL AUTHORIZA-
14 TION FOR THE PERFORMANCE OF AN AUTOPSY IF THE PHYSICIAN KNOWS THE DECEASED
15 PERSON OPPOSED AUTOPSIES AND TO MAKE TECHNICAL CORRECTIONS.
16 Be It Enacted by the Legislature of the State of Idaho:
17 SECTION 1. That Section 54-1142, Idaho Code, be, and the same is hereby
18 amended to read as follows:
19 54-1142. AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN. (1) If the
20 decedent has not made a prearranged funeral plan as set forth in section
21 54-1139, Idaho Code, the right to control the disposition of the remains of a
22 deceased person vests in, and devolves upon the following in the order named:
23 A.(a) A The person or entity designated in a written document executed by
24 the decedent and acknowledged in the same manner as required for instru-
25 ments conveying real property, and subject to such limitations, restric-
26 tions, or directions, as may be set forth in such document;
27 (b) The person designated as agent under a durable power of attorney for
28 health care executed by the decedent, unless such durable power of attor-
29 ney for health care contains express and clear language denying such
30 right;
31 (c) The person designated in a durable power of attorney executed by the
32 decedent, if such power of attorney contains express and clear language
33 granting such right to the agent named in such power of attorney;
34 B.(d) The competent surviving spouse of the decedent;
35 C.(e) A majority of the competent surviving adult children of the dece-
36 dent, provided that less than one-half (1/2) of the competent surviving
37 adult children shall be vested with the right to control the disposition
38 of the remains of the decedent if they have used reasonable efforts to
39 notify all other competent surviving adult children of their instructions
40 to dispose of the decedent's remains and are not aware of any opposition
41 to those instructions on the part of more than one-half (1/2) of all com-
42 petent surviving adult children;
43 D.(f) The competent surviving parents or parent of the decedent, provided
2
1 that if one (1) of the competent surviving parents is absent, the remain-
2 ing competent surviving parent shall be vested with the right to control
3 the disposition of the remains of the decedent after reasonable efforts
4 have been made and are unsuccessful in locating the absent competent sur-
5 viving parent;
6 (g) The person appointed by a court of competent jurisdiction as the per-
7 sonal representative or administrator of the estate of the decedent;
8 E.(h) The person nominated as the personal representative of the estate
9 of the decedent named in the will of the decedent; or appointed otherwise
10 by court order;
11 F.(i) A The competent adult person or persons entitled to inherit from
12 the decedent under the intestate succession laws of the state of Idaho,
13 respectively in the next degrees of kinship, provided that if there is
14 more than one (1) competent surviving adult person of the same degree of
15 kinship, the majority of those persons, and provided further that less
16 than the majority of competent surviving adult persons of the same degree
17 of kinship shall be vested with the right to control the disposition of
18 the remains of the decedent if those persons have used reasonable efforts
19 to notify all other competent surviving adult persons of the same degree
20 of kinship of their instructions to dispose of the decedent's remains and
21 are not aware of any opposition to those instructions on the part of one-
22 half (1/2) or more of all competent surviving adult persons of the same
23 degree of kinship.
24 (2) If any person to whom the right of control has vested pursuant to the
25 foregoing has been charged with first or second degree murder or voluntary
26 manslaughter in connection with the decedent's death, and those charges are
27 known to the funeral director or cemetery authority, the right of control is
28 relinquished and passed on to the next qualifying person as listed above as if
29 the charged person did not exist; provided however, that if the charges
30 against such person are dropped, or if such person is acquitted of the
31 charges, the right of control is returned to the person.
32 (3) For purposes of this section:
33 (a) "Adult" means an individual who is eighteen (18) years of age or
34 older;
35 (b) "Child" means a natural or adopted child of the decedent;
36 (c) "Competent" means the individual has not been declared incompetent by
37 a court of law, or who has been declared competent by a court of law after
38 a prior declaration of incompetence;
39 (d) "Durable power of attorney" means a power of attorney described in
40 section 15-5-501, Idaho Code, or any similar document properly executed
41 under the laws of another jurisdiction; and
42 (e) "Durable power of attorney for health care" means the document
43 described in section 39-4505, Idaho Code, or any similar document properly
44 executed under the laws of another jurisdiction;
45 (f) "Will" means any testamentary device which is valid under the Idaho
46 probate code, including, but not limited to, sections 15-2-503, 15-2-504
47 and 15-2-506, Idaho Code, whether or not originally executed in, or under
48 the laws of, the state of Idaho.
49 (4) (a) A cemetery authority or licensed funeral director or a licensed
50 hospital or its authorized personnel may permit or assist in, and a physi-
51 cian may perform, an autopsy of any remains of a decedent in its custody:
52 (i) If the decedent, prior to his death, authorizes an autopsy in
53 his will or in another written instrument, including, but not limited
54 to, a durable power of attorney for health care; or
55 (ii) Upon the receipt of a written authorization signed by,
3
1 telegrammed from, or received by facsimile transmission from, a per-
2 son representing himself to be the person who is entitled under this
3 section to control the disposition of the remains of the decedent, or
4 to be a coroner or any other duly authorized public officer; or
5 (iii) Upon the receipt of an oral authorization obtained by tele-
6 phone, and recorded on tape or other recording device, from a person
7 representing himself to be the person who is entitled under this sec-
8 tion to control the disposition of the remains of the decedent, or to
9 be a coroner or any other duly authorized public officer.
10 (b) A cemetery authority or a licensed funeral director of a licensed
11 hospital or its authorized personnel is not liable for permitting or
12 assisting, and a physician is not liable for performing, an autopsy pursu-
13 ant to the authorization provided in paragraph (a) of this subsection
14 unless he has actual notice that such representation is untrue at the time
15 the autopsy is performed. If such authorization is contained in a will,
16 the autopsy may be performed regardless of the validity of the will in
17 other respects and regardless of whether the will may not be offered for,
18 or admitted to, probate until a later date.
19 (c) This subsection shall not authorize the obtaining of an oral authori-
20 zation by telephone, recorded on tape or other recording device, for the
21 autopsy of a deceased person if it is made known to the physician who is
22 to perform the autopsy that the deceased person was, at the time of his
23 death, a member of a religion or group which opposes autopsies.
STATEMENT OF PURPOSE
RS 10712C1
Since the original bill in 1994, a number of additional problems
with the disposition of the remains of decedents have arisen. This
Bill amends and expands the original statute by:
(1) Expanding the list of persons or entities who may make
such decisions to include the designated agent under a Durable
Power of Attorney For Health Care, unless that power is denied
in the document, or to a Durable Power of Attorney, but only
if that power is expressly set forth in the document. This
priority follows immediately after a Funeral Burial Letter.
(2) Adding a standard of competency throughout the section.
(3) Providing for clarity in situations where a majority of
a class have the right of control, but some of the class
cannot be located or contacted.
(4) Clarifying how choices work when the intestacy laws are
used to determine priority.
(5) Providing that control is not appropriate if the person
who has priority has been charged with, or convicted of,
murder or manslaughter of the decedent.
(6) Clarifying how autopsies are to be authorized, and
protecting the religious beliefs of the decedent as to
autopsies.
FISCAL NOTE
This bill should have no effect on revenues or expenditures. The
bill may lower court involvement in disputes and thereby lower
expenditures.
CONTACT: Robert L. Aldridge
1209 North Eighth Street
Boise, Idaho 83702-4297
Telephone: office: (208) 336-9880
STATEMENT OF PURPOSE/FISCAL NOTE S 1059