BILL ANALYSIS
AB 2190
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Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2190 (Block) - As Introduced: February 18, 2010
PROPOSED CONSENT (As Proposed to Be Amended)
SUBJECT : DISPOSITION OF REMAINS: AUTHORIZED AGENT
KEY ISSUE : SHOULD THE DESIGNATION BY A MILITARY SERVICE MEMBER
OF A PERSON AUTHORIZED TO DIRECT DISPOSITION OF HIS OR HER
REMAINS ON THAT SERVICE MEMBER'S "RECORD OF EMERGENCY DATA", A
FORM ISSUED BY AND MAINTAINED WITH THE UNITED STATES DEPARTMENT
OF DEFENSE, BE SUFFICIENT TO ESTABLISH AN AGENT WHO HAS THE
RIGHT AND DUTY OF DISPOSITION OF THE SERVICE MEMBER'S REMAINS
UNDER CALIFORNIA LAW?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill would provide that designation by a military service
member of a person authorized to direct disposition (PADD) of
his or her remains on that service member's Department of
Defense (DD) Form 93 ("Record of Emergency Data") shall be
sufficient to establish that designee as an agent having the
right and duty of disposition of the service member's remains
under Section 7100(a) of the Health and Safety Code.
Importantly, the author has proposed to amend the bill to
clarify that, for the purpose of establishing an agent for the
deceased service member, DD Form 93 should be considered only
when the member dies while serving in a duty status in which the
Department of Defense requires, pursuant to federal law, that
the designated PADD direct the disposition of remains as a
condition for Department- provided burial entitlements. The
author's proposed amendments attempt to strike a balance that
accommodates the service member's ability to have his will and
estate planning carried out under state law, while satisfying
federal law requiring the use of Form DD 93 to designate a PADD
to provide burial entitlements to families of fallen service
members. For these reasons, the bill is supported by the
Department of Defense and the Trust and Estates Section of the
State Bar, with no registered opposition at this time.
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SUMMARY : Seeks to formally recognize in state law the U.S.
Defense Department (DD) Form 93 ("Record of Emergency Data") as
an acceptable written instrument of a military service member's
designation of a person to direct the disposition of his or her
remains in the event of death. Specifically, this bill provides
that the designation by a service member of a person authorized
to direct disposition (PADD) on a United States Department of
Defense Record of Emergency Data ("DD Form 93") shall be
sufficient to establish an agent who has the right and duty of
disposition of the remains of that service member, provided he
or she died while on duty in any Branch or Component of the U.S.
Armed Forces, as defined in 1481 of Title 10 of the U.S. Code.
EXISTING LAW :
1)Permits an adult having capacity to execute a power of
attorney for health care that may authorize the designated
agent to make health cares decisions as well as decisions
relating to the personal care of the principal. (Probate Code
Section 4671.)
2)Permits the agent, subject to any limitations in the power of
attorney for health care, to also make decisions that may be
effective after the principal's death, including directing the
disposition of remains under Section 7100 of the Health &
Safety Code. (Probate Code Section 4683.)
3)Provides that the right to control the disposition of the
remains of a deceased person, the location and conditions of
internment, and arrangements for funeral goods and services to
be provided, and the location and conditions of interment,
unless other directions have been given by the decedent
pursuant to a power of attorney for health care, 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:
a) an agent under a power of attorney for health care,
as provided;
b) the competent surviving spouse;
c) surviving competent adult children;
d) surviving competent parents;
e) surviving competent adult children;
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f) surviving competent adult person in the next degree
of kinship;
g) the public administrator when the deceased has
sufficient assets. (Health & Safety Code Section
7100(a).)
4)Provides that the agent under the power of attorney for health
care who has the right and duty of disposition is liable for
the costs of disposition only in either of the following
cases:
h) Where the agent makes a specific agreement to pay
the costs of disposition.
i) 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. (Health & Safety
Code Section 7100(a)(1).)
5)Pursuant to the United States Code, provides that the
Secretary of Defense may provide for the recovery, care, and
disposition of the remains of certain categories of military
service members, including (among others):
j) Any Regular of an armed force under his jurisdiction
who dies while on active duty;
aa) A member of a reserve component of an armed force
who dies while on active duty, performing inactive-duty
training, or under certain other conditions;
bb) Various other members, applicants for enlistment,
retired members, and other persons, as specified. (10
U.S.C. 1481.)
6)Pursuant to the United States Code, authorizes only the
following persons to be designated to direct disposition of
the remains of a military service member:
cc) The surviving spouse of the decedent
dd) Blood relatives of the decedent
ee) Adoptive relatives of the decedent
ff) A person standing in loco parentis to the decedent
if no person covered by (a) to (c) can be found. (10
U.S.C. 1482.)
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7)Pursuant to Public Law 109-163, requires the Department of
Defense, not later than June 1, 2006, to implement its
Instruction 1300.18, including interim policy guidance,
regarding the requirement to have service members designate a
person authorized to direct disposition of their remains
should they become a casualty. (Section 564 of Public Law
109-163.)
COMMENTS : This bill would provide that designation by a
military service member of a person authorized to direct
disposition (PADD) of his or her remains on that service
member's Department of Defense (DD) Form 93 ("Record of
Emergency Data") shall be sufficient to establish that designee
as an agent having the right and duty of disposition of the
service member's remains under Section 7100(a) of the Health and
Safety Code. Importantly, the author has proposed to amend the
bill to clarify that, for the purpose of establishing an agent
for the deceased service member, DD Form 93 should be considered
only when the member dies while serving in a duty status in
which the Department of Defense requires, pursuant to federal
law, that the designated PADD direct the disposition of remains
as a condition for Department- provided burial entitlements.
Background on DD Form 93 under Federal and State Law. Pursuant
to Section 564 of U.S. Public Law 109-163, active duty and
activated guard/reserve members of the military must complete
the federally mandated DD Form 93, in which, among other things,
they must designate a person authorized to direct disposition
("PADD") of their remains in the event of death. The document
is witnessed (but not notarized) by an authorized military
official, and is updated every year on the service member's
birthday and prior to each deployment. The service member may
make changes to his or her DD Form 93 at any time by accessing
the record through a special Internet website maintained by the
Department of Defense.
According to instructions printed on the form itself:
For military personnel, [this form] is used to designate
beneficiaries for certain benefits in the event of the
Service member's death. It is also a guide for
disposition of that member's pay and allowances if
captured, missing, or interned. It also shows names and
addresses of the person(s) the Service member desires to
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be notified in case of emergency or death
The PADD is of special significance to the DoD because in the
event of the member's death, the Department is required to
contact the PADD designated on Form 93 in order to provide the
burial entitlements that deceased service members are entitled
to pursuant to 10 U.S.C. 1482(a). The PADD is designated in
Item 13a of the current version of DD Form 93. In addition, the
Service member is informed that he or she "may desire to include
additional information such
as . . . location or existence of a Will" in the box provided
for Item 14 ("Continuation/Remarks").
California law, however, does not recognize the DD Form 93 as an
acceptable written document for service members, in lieu of a
durable power of attorney for health care. This could pose a
problem if the person authorized to direct disposition by the
service member on his DD Form 93 differs from the person
authorized to do so pursuant to Health & Safety Code Section
7100, which specifies a hierarchy of persons from which to
determine the authorized person, the first being an agent under
a power of attorney for health care if one was designated. This
bill seeks to prevent conflict over the disposition of remains
of fallen service members by formally validating the designation
of a person authorized to direct disposition on DD Form 93 for
that same purpose under existing state law.
Author's Statement: According to the author, the bill is
intended to avoid potential civil litigation between family
members and provide clarity during the stressful time of
bereavement after the loss of a service member. In support of
the bill, the author writes:
[On DD Form 93] service members designate a person
responsible for disposition in accordance with federal law.
Because some state laws do not currently recognize the
federal form as an acceptable one for service members,
there have been several instances of civil actions between
family members over the ultimate disposition of a fallen
service member's remains.
From a practical standpoint, active duty Service members
(48 percent of whom are less than 25 years old) would be
unlikely to research the pertinent statute for their home
state and complete the required documentation for
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designating an agent, particularly since they have already
designated someone on DD Form 93. Without establishing a
consistent requirement for the recognition of DD Form 93 by
the state, the choice of the Service member could be at
odds with the prioritized list of family members found in
his or her home state statute, thus leading to litigation
and delay in burial.
Similar Legislation in Other States. According to the author,
the DD Form 93 already meets existing legal requirements for
designation of an agent to direct disposition of remains in some
states, but this is not true in states that, for example, do not
allow for an authorized agent or have prescriptive requirements
for documenting the designation of an agent that would preclude
DD Form 93 from being deemed sufficient for that purpose.
Texas, for example, requires any document designating an agent
to direct disposition to be signed by the designee, whereas no
such signature is required on DD Form 93.
To achieve more uniform recognition of the DD Form 93 across the
country, similar legislation has been introduced in the past
year in at least 22 other states seeking to accomplish the same
objective as this bill. At the time this analysis was written,
legislation in Idaho, Mississippi, and Wyoming has become law.
The 19 remaining states where legislation is currently pending
are Alabama, Arizona, Colorado, Delaware, Florida, Georgia,
Illinois, Indiana, Maryland, Michigan, Missouri, Ohio,
Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and
Wisconsin.
This Bill Ultimately Encourages Service Members to Engage in
Careful Estate Planning under Federal and State Law. Like
ordinary civilians, military service members may consult with an
attorney to execute estate planning documents that, among other
things, establish an agent who has the right and duty of
disposition. A potential for conflict then arises when it is
discovered that a deceased service member has already executed
estate planning documents that name a different person having
the right and duty of disposition than is specified as the PADD
in DD Form 93.
As previously stated, recognition of the PADD designated in Form
93 is necessary primarily for the purpose of facilitating the
payment of burial entitlements by the Department of Defense to
the family of the deceased service member pursuant to 10 U.S.C.
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1481(a). Service members have a responsibility, required by DD
Instruction 1300.18 (implementing 564 of Public Law 109-163),
to designate a PADD on Form 93. Because Form 93 is part of the
service member's active personnel record, members know that it
is the essential document that will be consulted by military
authorities in the event of their death or casualty.
Given these parameters, it is reasonable to think that a service
member intent on accomplishing careful estate planning would
prepare those planning documents with these responsibilities and
requirements in mind. Because the member has the ability to
update his Form 93 at any time via the Internet, he or she could
presumably update the PADD designation on Form 93 to make it
consistent with a will or other estate planning documents, even
while preparing such documents at an attorney's office or at
home. The member is also directed in Item 14 of Form 93 that he
or she may indicate the location or existence of a will so this
is known to military authorities when they consult Form 93.
Under this bill, all other elements of a member's will or estate
planning documents not pertaining to the PADD designation on
Form 93 would be carried out in accordance with the member's
wishes, and would not be "trumped" by information contained in
Form 93. Finally, use of DD Form 93 encourages careful estate
planning because military policy ensures that service members
have reviewed their PADD designations at least annually and
before departing on deployment, whereas state statute has no
provisions that ensure a designation document is kept current.
For these reasons, this bill strikes a balance that accommodates
the service member's ability to have his will and estate
planning carried out under state law, while satisfying federal
law requiring the use of Form DD 93 to designate a PADD to
provide burial entitlements.
Limited Applicability in Reserve Duty Situations . In perhaps
the most typical situation of casualty, where a service member
is killed in action while deployed overseas, the Department of
Defense arranges for the handling of the remains pursuant to
military policy, after establishing the PADD designated in DD
Form 93, so it may provide burial entitlements appropriately.
In those cases, this bill would do nothing to change existing
DoD procedure.
However, in cases where a service member is called to active
guard and reserve duty (as defined by 10 U.S.C. 101) in
California by the Governor pursuant to authority under 32 U.S.C.
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328, the service member is technically under the command of the
Governor, who is the Commander-in-Chief of the state military
forces. An example of such duty is National Guard assistance
during natural disasters. In that case, this bill, as proposed
to be amended, would recognize and give precedent to the
decedent's estate planning documents in California, if those
documents specify a different person authorized to direct
disposition of the remains than appears in the decedent's DD
Form 93. The amendment accomplishes this by specifically
limiting its applicability to cases where the service member
"died while on duty in any Branch or Component of the U.S. Armed
Forces, as defined in 1481 of Title 10 of the U.S. Code."
This amendment is appropriate because in situations where the
member died while serving the Governor rather than the
Department of Defense, there is no corresponding DoD requirement
that the designated PADD direct the disposition of remains.
Furthermore, according to the Department, as a practical matter
the National Guard also would encourage members to
cross-reference the existence of other estate planning documents
in their DD Form 93, and would try to ensure that the
disposition and burial instructions in both documents are
consistent. In this manner, the designated agent would still be
fully aware of the entitlements available to the decedent in the
event the decedent dies while on duty.
Author's Amendment Regarding Applicability to Service Members
Depending on Status of Duty: In order to address the concerns
that this bill, as currently in print, does not preclude
confusion or dispute when the service member dies leaving
validly executed estate planning documents that conflict with
the DD Form 93 with respect to designation of the person
authorized to control the disposition of remains, the author
proposes to amend the bill to clarify that DD Form 93 only
applies when the member dies while serving in a duty status in
which the Department of Defense requires that the designated
PADD direct the disposition of remains as a condition for
Department-provided burial entitlements. These types of duty
statuses are specified in Section 1481 of the Title 10 of the
U.S. Code. Therefore, the author's amendment is:
On page 5, line 2, after "disposition", insert "for
a decedent who died while on duty in any Branch or
Component of the U.S. Armed Forces, as defined in
1481 of Title 10 of the U.S. Code."
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This amendment would allow a member of the Reserve Component,
such as a member of the California National Guard, to have an
active estate plan and an active DD Form 93, each of which would
take precedence depending on the duty status of the member at
the time of death. With this amendment, the Trusts & Estates
Section of the State Bar (TEXCOM) now supports the bill.
Author's Technical Amendment: In addition, the author proposes
the following technical amendment to clarify the key action
sufficient to establish the agent who has the right and duty of
disposition under California law:
On page 4, line 35, delete "completion of" and
insert in its place: "designation of a person
authorized to direct disposition (PADD) on"
This amendment would make it clear that it is only the
designation of a PADD on DD Form 93 (currently entered on line
13a) that would specifically establish the person who has the
right and duty of disposition, and that the mere "completion" of
Form 93 itself (which includes many places where the member may
fill in names of beneficiaries and contacts) is not sufficient
for this purpose under California law.
REGISTERED SUPPORT / OPPOSITION :
Support
U.S. Department of Defense
Trust & Estates Section of the State Bar of California (TEXCOM)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334