2005 Idaho Code - 54-1142 — AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN

                                  TITLE  54
                    PROFESSIONS, VOCATIONS, AND BUSINESSES
                                  CHAPTER 11
                        MORTICIANS, FUNERAL DIRECTORS
                                AND EMBALMERS
    54-1142.  AUTHORITY IN ABSENCE OF PREARRANGED FUNERAL PLAN. (1) If the
decedent has not made a prearranged funeral plan as set forth in section
54-1139, Idaho Code, the right to control the disposition of the remains of a
deceased person vests in, and devolves upon the following in the order named:
    (a)  The person designated in a written document executed by the decedent
    and acknowledged in the same manner as required for instruments conveying
    real property, and subject to such limitations, restrictions, or
    directions, as may be set forth in such document;
    (b)  The person designated as agent under a durable power of attorney for
    health care executed by the decedent, unless such durable power of
    attorney for health care contains express and clear language denying such
    right;
    (c)  The person designated in a durable power of attorney executed by the
    decedent, if such power of attorney contains express and clear language
    granting such right to the agent named in such power of attorney;
    (d)  The competent surviving spouse of the decedent;
    (e)  A majority of the competent surviving adult children of the decedent,
    provided that less than one-half (1/2) of the competent surviving adult
    children shall be vested with the right to control the disposition of the
    remains of the decedent if they have used reasonable efforts to notify all
    other competent surviving adult children of their instructions to dispose
    of the decedent's remains and are not aware of any opposition to those
    instructions on the part of more than one-half (1/2) of all competent
    surviving adult children;
    (f)  The competent surviving parents or parent of the decedent, provided
    that if one (1) of the competent surviving parents is absent, the
    remaining competent surviving parent shall be vested with the right to
    control the disposition of the remains of the decedent after reasonable
    efforts have been made and are unsuccessful in locating the absent
    competent surviving parent;
    (g)  The person appointed by a court of competent jurisdiction as the
    personal representative or administrator of the estate of the decedent;
    (h)  The person nominated as the personal representative of the estate of
    the decedent in the will of the decedent;
    (i)  The competent adult person or persons entitled to inherit from the
    decedent  under the intestate succession laws of the state of Idaho,
    respectively in the next degree of kinship, provided that if there is more
    than one (1) competent surviving adult person of the same degree of
    kinship, the majority of those persons, and provided further that less
    than the majority of competent surviving adult persons of the same degree
    of kinship shall be vested with the right to control the disposition of
    the remains of the decedent if those persons have used reasonable efforts
    to notify all other competent surviving adult persons of the same degree
    of kinship of their instructions to dispose of the decedent's remains and
    are not aware of any opposition to those instructions on the part of
    one-half (1/2) or more of all competent surviving adult persons of the
    same degree of kinship;
    (j)  If the persons listed above fail to exercise their right to dispose
    of the remains of the deceased person within forty (40) days of the death
    of the deceased person, the person acting as guardian of the ward at the
    time of the ward's death, or if no guardian was then acting, the person
    acting as conservator of the protected person at the time of the protected
    person's death, has the authority to dispose of the deceased person's
    remains, including cremation of the remains.
    (2)  If any person to whom the right of control has vested pursuant to the
foregoing has been charged with first or second degree murder or voluntary
manslaughter in connection with the decedent's death, and those charges are
known to the funeral director or cemetery authority, the right of control is
relinquished and passed on to the next qualifying person as listed above as if
the charged person did not exist; provided however, that if the charges
against such person are dropped, or if such person is acquitted of the
charges, the right of control is returned to the person.
    (3)  For purposes of this section:
    (a)  "Adult" means an individual who is eighteen (18) years of age or
    older;
    (b)  "Child" means a natural or adopted child of the decedent;
    (c)  "Competent" means the individual has not been declared incompetent by
    a court of law, or who has been declared competent by a court of law after
    a prior declaration of incompetence;
    (d)  "Durable power of attorney" means a power of attorney described in
    section 15-5-501, Idaho Code, or any similar document properly executed
    under the laws of another jurisdiction; and
    (e)  "Durable power of attorney for health care" means the document
    described in chapter 45, title 39, Idaho Code, or any similar document
    properly executed under the laws of another jurisdiction;
    (f)  "Will" means any testamentary device which is valid under the Idaho
    probate code, including, but not limited to, sections 15-2-503, 15-2-504
    and 15-2-506, Idaho Code, whether or not originally executed in, or under
    the laws of, the state of Idaho.
    (4)  (a) A cemetery authority or licensed funeral director or a licensed
    hospital or its authorized personnel may permit or assist in, and a
    physician may perform, an autopsy of any remains of a decedent in its
    custody:
         (i)   If the decedent, prior to his death, authorizes an autopsy in
         his will or in another written instrument, including, but not limited
         to, a durable power of attorney for health care; or
         (ii)  Upon the receipt of a written authorization signed by,
         telegrammed from, or received by facsimile transmission from, a
         person representing himself to be the person  who is entitled under
         this section to control the disposition of the remains of the
         decedent, or to be a coroner or any other duly authorized public
         officer; or
         (iii) Upon the receipt of an oral authorization obtained by
         telephone, and recorded on tape or other recording device, from a
         person representing himself to be the person who is entitled under
         this section to control the disposition of the remains of the
         decedent, or to be a coroner or any other duly authorized public
         officer.
    (b)  A cemetery authority or a licensed funeral director of a licensed
    hospital or its authorized personnel is not liable for permitting or
    assisting, and a physician is not liable for performing, an autopsy
    pursuant to the authorization provided in paragraph (a) of this subsection
    unless he has actual notice that such representation is untrue at the time
    the autopsy is performed. If such authorization is contained in a will,
    the autopsy may be performed regardless of the validity of the will in
    other respects and regardless of whether the will may not be offered for,
    or admitted to, probate until a later date.
    (c)  This subsection shall not authorize the obtaining of an oral
    authorization by telephone, recorded on tape or other recording device,
    for the autopsy of a deceased person if it is made known to the physician
    who is to perform the autopsy that the deceased person was, at the time of
    his death, a member of a religion or group which opposes autopsies.