BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 905|
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THIRD READING
Bill No: AB 905
Author: Pan (D), et al.
Amended: 7/12/11 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 6/21/11
AYES: Evans, Blakeslee, Corbett, Leno
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 78-0, 5/19/11 (Consent) - See last page
for vote
SUBJECT : Disposition of remains: authorized agent
SOURCE : Veterans of foreign Wars
DIGEST : This bill adds to the list of persons authorized
to take control of a decedents remains the person
authorized to direct disposition (PADD) indicated on a
United States Department of Defense Record of Emergency
Data, DD Form 93 (DD Form 93). This bill is operative only
if the DD Form 93 and corresponding federal law are amended
to allow the PADD to be any person, regardless of the
relationship of the PADD to the decedent.
ANALYSIS : Existing federal law requires a military
service member to appoint a PADD annually and prior to
deployment. (P.L. 109-163.)
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Existing federal law provides that only the following
persons may be appointed as a PADD:
The surviving spouse of the decedent.
Blood relatives of the decedent.
Adoptive relatives of the decedent.
If none of the above persons can be found, a person
standing in place of a parent of the decedent. (10
U.S.C. Sec. 1482(c).)
Existing state law provides that, unless other directions
have been made by a decedent in writing such as a will, the
right to control the disposition of the remains of the
decedent, the location and conditions of interment, and
arrangements for funeral goods and services to be provided,
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:
An agent under a power of attorney for health care who
has the right and duty of disposition, as specified.
The competent surviving spouse.
The sole surviving competent adult child or children, as
specified, of the decedent.
The surviving competent parent or parents of the
decedent, as specified.
The sole surviving competent adult sibling(s) of the
decedent, as specified.
The surviving competent adult person or persons
respectively in the next degrees of kinship, as
specified.
The public administrator when the deceased has sufficient
assets. (Health & Safety Code Section 7100.)
This bill provides that the PADD will be the first person,
over and above anyone designated as the decedent's agent
under a power of attorney for health care, who has the
right and duty of disposition of remains for a military
service member who dies while on duty.
This bill only becomes operative in the event the DD Form
93 and existing federal law are modified to authorize a
service member to designate anyone as the PADD.
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Background
A PADD is required to be designated by a military service
member prior to deployment. California law currently does
not recognize a PADD as an individual who may take
possession of a decedent's remains. Consequently, a
service member may designate a family member on the DD Form
93, but California law would designate, under the ranked
list of individuals who may take possession of remains, the
service member's estranged spouse. This bill clarifies
this confusion and recognizes that a PADD will be the first
individual who could take possession of a service member's
remains.
The current DD Form 93 does not allow for the designation
of a domestic partner or same-sex spouse. Accordingly,
this bill was amended to provide that, if at some point the
PADD and corresponding federal law authorize the
designation of a domestic partner or same-sex spouse, then
the individual designated on the DD Form 93 will become the
first person who could take possession of the service
member's remains.
This bill is similar to AB 2190 (Block), 2009-10 Session,
which was held in the Senate Judiciary Committee because it
raised concerns that it might have inadvertently undermined
protections for domestic partners and same-sex couples
under California law. California law recognizes spouses to
include domestic partners and same-sex spouses, but federal
law does not. Accordingly, the DD Form 93 currently does
not allow a service member to designate his/her domestic
partner or same-sex spouse as the PADD. This bill, on the
other hand, requires, prior to enactment of this bill, the
DD Form 93 and corresponding federal law to allow the
designation of any person, regardless of the relationship
to the service member, who would include a domestic partner
or same-sex spouse.
This bill, sponsored by the Veterans of Foreign Wars, adds
to the list of persons authorized to take control of a
decedent's remains the PADD indicated on a DD Form 93.
This bill is operative only if the DD Form 93 and
corresponding federal law are amended to allow the PADD to
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be any person, regardless of the relationship of the PADD
to the decedent.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/8/11)
Veterans of Foreign Wars (source)
California State Commanders Veterans Council
Civil Justice Association of California
Equality California
ARGUMENTS IN SUPPORT : The author's office states,
presently, the DD Form 93 is not recognized in state law
leading to potential conflict whenever a California
resident is killed while on duty. The U.S. Department of
Defense (or a qualified Funeral Director) normally will
only release remains to the person designated on the form -
that person may not be the agent who has the right and duty
of disposition for a decedent under state law. This could
lead to painful legal disputes between friends and family
members of the decedent.
This bill makes the federal record of emergency data, DD
Form 93, take first priority and be used for disposition of
remains when a member of the U.S. military is killed while
on duty. Specifically, this bill makes the PADD on the DD
Form 93 the legal agent who has the right and duty of
disposition for a decedent.
The Veterans of Foreign Wars, the sponsor of this bill,
writes, "The PADD is of special significance to members of
the military services because, in the event of the member's
death, the Department of Defense is required to contact the
designated person in order to provide the burial
entitlements that deceased service members are supposed to
receive pursuant to 10 U.S.C. 1482(a). The DD Form 93 is
routinely updated by members of the military services on an
annual basis, prior to any deployment, and at any other
time the service member may desire. As such, it is the
most recent evidence of the member's personal wishes."
ASSEMBLY FLOOR :
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AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nestande,
Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. Pérez
NO VOTE RECORDED: Alejo, Gorell
RJG:do 7/12/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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