Idaho State Statutes - Idaho Attorney Directory

(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.
(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.

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