BILL NUMBER: AB 2811	CHAPTERED  08/25/04

	CHAPTER  307
	FILED WITH SECRETARY OF STATE  AUGUST 25, 2004
	APPROVED BY GOVERNOR  AUGUST 24, 2004
	PASSED THE ASSEMBLY  AUGUST 12, 2004
	PASSED THE SENATE  JULY 29, 2004
	AMENDED IN SENATE  JULY 1, 2004
	AMENDED IN ASSEMBLY  APRIL 27, 2004

INTRODUCED BY   Assembly Member Runner

                        FEBRUARY 20, 2004

   An act to amend Sections 7100 and 7105 of the Health and Safety
Code, relating to human remains.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2811, Runner.  Human remains:  disposition.
   Existing law lists the person or persons who, in an order of
succession, have the right to control the, and duty of disposition
of, the remains of a deceased person if other directions have not
been given by the decedent.  A person upon whom the duty of interment
is imposed by law who omits to perform that duty within a reasonable
period of time is guilty of a misdemeanor.
   This bill would add the surviving competent adult siblings of the
deceased person to the list of persons who may control the
disposition of the decedent's remains.  By changing the definition of
a crime, this bill would impose a state-mandated local program.
   Existing law provides that if the person vested with the duty of
interment fails, refuses, or neglects, within a reasonable time after
death of the decedent, to make the interment, a cemetery authority
having possession of the remains, or any relative of the decedent,
may file a petition in the superior court in the county in which the
decedent resided at the time of his or her death, or in which the
remains are located, naming as defendant the person vested with the
duty of interment and seeking an order of the court directing the
defendant to make interment of the remains.
   This bill would instead provide that if the person or persons who
control the disposition of the decedent's remains fail to act or
cannot be found within 7 days of the death, or in the case of a
competent surviving spouse within 10 days of the death, the right to
control the disposition shall pass to the next person or persons in
accordance with the order of succession provided by statute, and
would authorize certain parties to petition the court to determine
who has the right to control interment if persons with equal right
fail to agree on disposition of the remains.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 7100 of the Health and Safety Code is amended
to read:
   7100.  (a) The right to control the disposition of the remains of
a deceased person, the location and conditions of interment, and
arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section
7100.1, vests in, and the duty of disposition and the liability for
the reasonable cost of disposition of the remains devolves upon, the
following in the order named:
   (1) An agent under a power of attorney for health care who has the
right and duty of disposition under Division 4.7 (commencing with
Section 4600) of the Probate Code, except that the agent is liable
for the costs of disposition only in either of the following cases:
   (A) Where the agent makes a specific agreement to pay the costs of
disposition.
   (B) Where, in the absence of a specific agreement, the agent makes
decisions concerning disposition that incur costs, in which case the
agent is liable only for the reasonable costs incurred as a result
of the agent's decisions, to the extent that the decedent's estate or
other appropriate fund is insufficient.
   (2) The competent surviving spouse.
   (3) The sole surviving competent adult child of the decedent, or
if there is more than one competent adult child of the decedent, the
majority of the surviving competent adult children.  However, less
than the majority of the surviving competent adult children shall be
vested with the rights and duties of this section if they have used
reasonable efforts to notify all other surviving competent adult
children of their instructions and are not aware of any opposition to
those instructions by the majority of all surviving competent adult
children.
   (4) The surviving competent parent or parents of the decedent.  If
one of the surviving competent parents is absent, the remaining
competent parent shall be vested with the rights and duties of this
section after reasonable efforts have been unsuccessful in locating
the absent surviving competent parent.
   (5) The sole surviving competent adult sibling of the decedent, or
if there is more than one surviving competent adult sibling of the
decedent, the majority of the surviving competent adult siblings.
However, less than the majority of the surviving competent adult
siblings shall be vested with the rights and duties of this section
if they have used reasonable efforts to notify all other surviving
competent adult siblings of their instructions and are not aware of
any opposition to those instructions by the majority of all surviving
competent adult siblings.
   (6) The surviving competent adult person or persons respectively
in the next degrees of kinship, or if there is more than one
surviving competent adult person of the same degree of kinship, the
majority of those persons.  Less than the majority of surviving
competent adult persons of the same degree of kinship shall be vested
with the rights and duties of this section if those persons have
used reasonable efforts to notify all other surviving competent adult
persons of the same degree of kinship of their instructions and are
not aware of any opposition to those instructions by the majority of
all surviving competent adult persons of the same degree of kinship.

   (7) The public administrator when the deceased has sufficient
assets.
   (b) (1) If any person to whom the right of control has vested
pursuant to subdivision (a) 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 of kin in accordance with subdivision (a).
   (2) If the charges against the person are dropped, or if the
person is acquitted of the charges, the right of control is returned
to the person.
   (3) Notwithstanding this subdivision, no person who has been
charged with first or second degree murder or voluntary manslaughter
in connection with the decedent's death to whom the right of control
has not been returned pursuant to paragraph (2) shall have any right
to control disposition pursuant to subdivision (a) which shall be
applied, to the extent the funeral director or cemetery authority
know about the charges, as if that person did not exist.
   (c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains, and to proceed
under this chapter to recover usual and customary charges for the
disposition, when both of the following apply:
   (1) Either of the following applies:
   (A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (6), inclusive, of
subdivision (a) exists.
   (B) None of the persons described in paragraphs (1) to (6),
inclusive, of subdivision (a) can be found after reasonable inquiry,
or contacted by reasonable means.
   (2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts.  Written notice may be delivered by
hand, U.S. mail, facsimile transmission, or telegraph.
   (d) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kinship and upon the estate of the decedent.  However,
if a person accepts the gift of an entire body under subdivision (a)
of Section 7155.5, that person, subject to the terms of the gift,
shall be liable for the reasonable cost of final disposition of the
decedent.
   (e) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
   (f) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
   (g) For purposes of this section, "adult" means an individual who
has attained 18 years of age, "child" means a natural or adopted
child of the decedent, and "competent" means an individual who has
not been declared incompetent by a court of law or who has been
declared competent by a court of law following a declaration of
incompetence.
  SEC. 2.  Section 7105 of the Health and Safety Code is amended to
read:
   7105.  (a) If the person or persons listed in paragraphs (1), (3),
(4), (5), and (6) of subdivision (a) of Section 7100 that would
otherwise have the right to control the disposition and arrange for
funeral goods and services fails to act, or fails to delegate his or
her authority to act to some other person within seven days of the
death, or in the case of a person listed in paragraph (2) of
subdivision (a) of Section 7100, within 10 days of the death, the
right to control the disposition and arrange for funeral goods and
services shall be relinquished and passed on to the person or persons
of the next degree of kinship in accordance with subdivision (a) of
Section 7100.
   (b) If the person or persons listed in paragraphs (1), (3), (4),
(5), and (6)  of subdivision (a) of Section 7100 that would otherwise
have the right to control the disposition and arrange for funeral
goods and services cannot be found within seven days of the death, or
in the case of a person listed in paragraph (2) of subdivision (a)
of Section 7100, within 10 days of the death, after reasonable
inquiry, the right to control the disposition and arrange for funeral
goods and services shall be relinquished and passed on to the person
or persons of the next degree of kinship in accordance with
subdivision (a) of Section 7100.
   (c) If any persons listed in paragraphs (1) to (6), inclusive, of
subdivision (a) of Section 7100 that would otherwise have equal
rights to control the disposition and arrange for funeral goods and
services fail to agree on disposition and funeral goods and services
to be provided within seven days of the date on which the right and
duty of disposition devolved upon the persons, a funeral
establishment or a cemetery authority having possession of the
remains, or any person who has equal right to control the disposition
of the remains may file a petition in the superior court in the
county in which the decedent resided at the time of his or her death,
or in which the remains are located, naming as a party to the action
those persons who would otherwise have equal rights to control the
disposition and seeking an order of the court determining, as
appropriate, who among those parties will have the control of
disposition and to direct that person to make interment of the
remains.  The court, at the time of determining the person to whom
the right of disposition will vest, shall, from the remaining parties
to the action, establish an alternate order to whom the right to
control disposition will pass if the person vested with the right to
control disposition fails to act within seven days.
   (d) If the person vested with the duty of interment has criminal
charges pending against him or her for the unlawful killing of the
decedent, in violation of Section 187 of, or subdivision (a) or (b)
of Section 192 of, the Penal Code, the person or persons with the
next highest priority prescribed by Section 7100 may petition a court
of competent jurisdiction for an order for control of the
disposition of the decedent's remains.  For this purpose, it shall be
conclusively presumed that the petitioner is the person entitled to
control the disposition of the remains if the petitioner is next in
the order of priority specified in Section 7100.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.