BP BHEAD INT S

AN ACT Relating to durable powers of attorney to make funeral decisions; and amending RCW 11.94.010, 11.94.020, 68.50.160, and 68.50.180.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 11.94.010 and 1995 c 297 s 9 are each amended to read as follows:

(1) Whenever a principal designates another as his or her attorney in fact or agent, by a power of attorney in writing, and the writing contains the words "This power of attorney shall not be affected by disability of the principal," or "This power of attorney shall become effective upon the disability of the principal," or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's disability, the authority of the attorney in fact or agent is exercisable on behalf of the principal as provided notwithstanding later disability or incapacity of the principal at law or later uncertainty as to whether the principal is dead or alive. All acts done by the attorney in fact or agent pursuant to the power during any period of disability or incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or the principal's guardian or heirs, devisees, and personal representative as if the principal were alive, competent, and not disabled. A principal may nominate, by a durable power of attorney, the guardian or limited guardian of his or her estate or person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification. If a guardian thereafter is appointed for the principal, the attorney in fact or agent, during the continuance of the appointment, shall account to the guardian rather than the principal. The guardian has the same power the principal would have had if the principal were not disabled or incompetent, to revoke, suspend or terminate all or any part of the power of attorney or agency.

(2) Persons shall place reasonable reliance on any determination of disability or incompetence as provided in the instrument that specifies the time and the circumstances under which the power of attorney document becomes effective.

(3) A principal may authorize his or her ((~~attorney-in-fact~~)) attorney in fact to provide informed consent for health care, funeral decisions including the decision to have no funeral, and decisions regarding burial or cremation on the principal's behalf. Unless he or she is the spouse, or adult child or brother or sister of the principal, none of the following persons may act as the ((~~attorney-in-fact~~)) attorney in fact for the principal: Any of the principal's physicians, the physicians' employees, or the owners, administrators, or employees of the health care facility where the principal resides or receives care. This authorization is subject to the same limitations as those that apply to a guardian under RCW 11.92.043(5) (a) through (c).

Sec. 2. RCW 11.94.020 and 1985 c 30 s 26 are each amended to read as follows:

(1) The death, disability, or incompetence of any principal who has executed a power of attorney in writing other than a power as described by RCW 11.94.010, does not revoke or terminate the agency as to the attorney in fact, agent, or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and the principal's heirs, devisees, and personal representatives. However, the death of any principal who has authorized an attorney in fact to make funeral decisions does not revoke or terminate that authority.

(2) An affidavit, executed by the attorney in fact, or agent, stating that the attorney did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability, or incompetence, is, in the absence of a showing of fraud or bad faith, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.

(3) This section shall not be construed to alter or affect any provision for revocation or termination contained in the power of attorney.

Sec. 3. RCW 68.50.160 and 1993 c 297 s 1 are each amended to read as follows:

(1) A person has the right to control the disposition of his or her own remains without the predeath or postdeath consent of another person. A valid written document expressing the decedent's wishes regarding the place or method of disposition of his or her remains, signed by the decedent in the presence of a witness, is sufficient legal authorization for the procedures to be accomplished.

(2) Prearrangements that are prepaid, or filed with a licensed funeral establishment or cemetery authority, under RCW 18.39.280 through 18.39.345 and chapter 68.46 RCW are not subject to cancellation or substantial revision by survivors. Absent actual knowledge of contrary legal authorization under this section, a licensed funeral establishment or cemetery authority shall not be held criminally nor civilly liable for acting upon such prearrangements.

(3) If the decedent has not executed a written document expressing his or her wishes regarding the place or method of disposition of his or her remains in accordance with subsection (1) of this section, or the decedent has not made a prearrangement as set forth in subsection (2) of this section, or the costs of executing the decedent's wishes regarding any funeral and the disposition of the decedent's remains exceeds a reasonable amount, or directions have not been given by the decedent, the right to control the disposition of the remains of a deceased person vests in, and the duty of disposition and the liability for the reasonable cost of preparation, care, and disposition of such remains devolves upon the following in the order named:

(a) Any person appointed as the decedent's attorney in fact who has been granted such authority under RCW 11.94.010(3).

(b) The surviving spouse.

((~~(b)~~)) (c) The surviving adult children of the decedent.

((~~(c)~~)) (d) The surviving parents of the decedent.

((~~(d)~~)) (e) The surviving siblings of the decedent.

((~~(e) A~~)) (f) Any other person acting as a representative of the decedent under the signed authorization of the decedent.

(4) The liability for the reasonable cost of preparation, care, and disposition ((~~devolves~~)) shall be borne by the estate of the decedent. If such estate is inadequate to satisfy such costs, such obligations shall devolve jointly and severally upon all kin of the decedent in the same degree of kindred, in the order listed in subsection (3) of this section((~~, and upon the estate of the decedent~~)).

Sec. 4. RCW 68.50.180 and 1993 c 43 s 5 are each amended to read as follows:

The cemetery authority may inter or cremate any remains upon the receipt of a written authorization of a person representing himself or herself to be a person who has acquired the right to control the disposition of the remains, including a person designated as an attorney in fact under RCW 11.94.010(3) to make funeral decisions. A cemetery authority or a person licensed by the board of funeral directors or embalmers under chapter 18.39 RCW is not liable for interring or cremating pursuant to such authorization, unless it has actual notice that such representation is untrue.

In the event the state of Washington or any of its agencies provide the funds for the disposition of any remains and the state or its agency elects to provide the funds for cremation only, the cemetery authority or licensed funeral establishment shall not be criminally or civilly liable for cremating the remains.

If a cemetery authority with a permit issued under RCW 68.05.175 or a funeral establishment licensed under chapter 18.39 RCW has made a good faith effort to locate the persons cited in RCW 68.50.160 or the legal representative of the decedent's estate, the cemetery authority or funeral establishment shall have the right to rely on an authority to cremate executed by the most responsible party available, and the cemetery authority or funeral establishment shall not be criminally or civilly liable for cremating the remains.