BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1284 (Hernandez)
Version: March 28, 2016
Hearing Date: April 5, 2016
Fiscal: No
Urgency: No
TMW
SUBJECT
Human remains: conservator of the person or estate
DESCRIPTION
This bill would provide that the right and duty to control the
disposition of the remains of a decedent passes successively to
the conservator of the person and conservator of the estate if a
person in a higher order of succession fails to act or cannot be
found.
BACKGROUND
When an individual dies, existing law provides a list, in order
of priority, of individuals who have the right to take control
of the remains of the decedent, arrange for the location and
conditions of interment, and arrange for funeral goods and
services. The list of priority was first established in 1931,
and has been amended several times over the years to include
additional individuals. Most recently, SB 647 (Committee on
Judiciary, Chapter 308, Statutes of 2011) amended the list to
include a conservator of the person or a conservator of the
estate of the decedent.
Separately, existing law provides for the successive rights of
persons that may take disposition of the decedent's remains when
a person who otherwise has the right to control the disposition
fails to act or cannot be found. This bill would update the
passage of rights and duties of control of the decedent's
remains in accordance with SB 647 and incorporate the rights and
duties of the conservator of the person or the conservator of
the estate.
CHANGES TO EXISTING LAW
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Existing law , if other directions have not been given by the
decedent, provides a list, in order of priority, of the person
or persons who have the right to control the disposition of and
arrange for funeral goods and services for a decedent, and the
liability for costs of the disposition and funeral goods and
services. (Health & Saf. Code Sec. 7100.) The kinship-based
list of priority is specified as follows:
an agent under a power of attorney for health care who has the
right and duty of disposition, except that the agent is only
liable for costs, as specified;
the competent surviving spouse;
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 these rights and
duties 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;
the surviving competent parent or parents of the decedent, but
if one of the surviving competent parents is absent, the
remaining competent parent is vested with the rights and
duties after reasonable efforts have been unsuccessful in
locating the absent surviving competent parent;
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 are vested with the rights and duties
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;
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;
a conservator of the person when the decedent has sufficient
assets;
a conservator of the estate when the decedent has sufficient
assets; and
the public administrator when the deceased has sufficient
assets. (Health & Saf. Code Sec. 7100(a)(1)-(9).)
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Existing law provides first priority of the rights and duties to
control the decedent's remains to a person designated as a
person authorized to direct disposition on a United States
Department of Defense Record of Emergency Data, DD Form 93, as
specified by the decedent who died while on duty in any branch
or component of the Armed Forces. (Health & Saf. Code Sec.
7100(h).)
Existing law provides that where a specified person authorized
to dispose of the decedent's remains fails to act or to delegate
this responsibility within seven days of the date when the right
and duty devolves upon the person or persons, or where the
competent surviving spouse fails to act or to delegate this
responsibility within 10 days after the date when the right and
duty devolves upon the person or persons, the right to control
the disposition and arrange for funeral goods and services is
relinquished and passes on to the next person, according to the
list of priority. The same rule would apply if the person
authorized to dispose of the remains cannot be found. (Health &
Safety Code Section 7105(a), (b).)
Existing law provides that if any of the persons in the list who
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. (Health & Saf. Code Sec. 7105(c).)
The court, at the time of determining the person to whom the
right of disposition will vest, is required, from the remaining
parties to the action, to 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. (Id.)
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This bill would add the conservator of the person and
conservator of the estate to the list of persons who have the
right to control and the duty of disposition of the decedent's
remains before the right and duty passes to the next person on
the priority list if the conservator fails to act or cannot be
found, as specified.
This bill would include a conservator of the person and
conservator of the estate in the list of persons against or by
whom a petition to compel a responsible party to make interment
of the remains could be brought.
COMMENT
1. Stated need for the bill
The author writes:
At times, conservators of the person or the estate are the
only people who have a relationship with the decedent.
Recently, the list, in order of priority, of individuals who
have the right to take control of the remains of the decedent,
arrange for the location and conditions of interment, and
arrange for funeral goods and services was updated to include
the right of the conservator of the person or the conservator
of the estate. However, the corresponding code section that
provides for the list of succession of that right if an
individual fails to act or cannot be found was not also
updated to include conservators.
This bill, in accordance with the line of consanguinity
established under SB 647, adds conservators of the person and
estate, thereby aligning the list of individuals who succeed
to the right to control the disposition and arrange for
funeral goods and services if an individual in a higher order
of priority fails to ? act or cannot be found, with the list
of individuals who have the right to take control of the
decedent's remains and arrange for the location and conditions
of interment, and arrange for funeral goods and services.
2. Expanding successive right to control and duty of disposition
of remains
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Existing law, if the decedent did not otherwise provide,
establishes a list of successors having the right and duty to
control the disposition of the remains of a decedent. In the
event a person on the list fails to take control of the remains
or cannot be found, existing law provides that the rights and
duties to control the remains devolves to the next person on the
list. Existing law also authorizes a petition to compel a
person to take control of the remains if another person on the
list of succession fails to act. This bill would expand the
list of successor rights and duties to include the conservator
of the person and the conservator of the estate.
The California Funeral Directors Association, sponsor, states
that the bill is "the result of our review of the statutes and
an effort to clarify the rights and responsibilities of those
individuals in line to handle the disposition of a body (the
line of consanguinity). This legislation recognizes that for a
range of circumstances[,] such as our increasingly transient
society, longer life[,] or more fractured families[, . . .]
there are instances in which the conservators of the person or
the estate have the most significant relationship with the
decedent. . . . This legislation amends the corresponding code
section that includes conservator of the person or estate if the
individual in line fails to act or cannot be found. California
has always been in the forefront of clarifying and protecting
the rights of consumers, [. . .] especially during those
difficult times when dealing with loss of life."
This bill seeks to conform recent changes made by SB 647
(Committee on Judiciary, Chapter 308, Statutes of 2011) to the
list of individuals who have the right and duties to control a
decedent's remains. In accordance with the list of individuals
specified in SB 647, this bill would add a conservator of the
person or a conservator of the estate of the decedent to the
list below all persons who are in any degree of kinship with the
decedent and just above the public administrator. As such,
pursuant to the bill, if the conservator of the person and the
conservator of the estate failed to act or could not be found to
assume the rights and duties to disposition of the remains, only
the public administrator would succeed to these rights and
duties.
The bill also conforms the list of successorship by adding the
conservator of the person or estate in order to accommodate a
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scenario where the conservator of the person or estate are
unable to be located or fail to act so that a funeral
establishment or cemetery authority having the possession of the
remains or a relative of the decedent would be able to petition
the court to direct a person on the list to assume the rights
and duties to control the remains. This provision would also
provide a conservator of the person or estate the ability to
petition the court to direct another person on the list to
assume the rights and duties. Notably, this bill would impose
the rights and duties of disposition of the remains on the
conservator of the person and the conservator of the estate only
if the decedent had sufficient assets to cover the cost of
disposition.
Support : None Known
Opposition : None Known
HISTORY
Source : California Funeral Directors Association
Related Pending Legislation : None Known
Prior Legislation :
SB 647 (Committee on Judiciary, Chapter 308, Statutes of 2011)
See Background, Comments 1, 2.
AB 886 (Committee on Business and Professions, Chapter 96,
Statutes of 2005) clarified that the authority to dispose of
human remains, which is passed according to a statutorily
defined list of persons, commences on the day the right and the
duty devolves upon that person, not on the date of death of the
decedent.
AB 2811 (Runner, Chapter 307, Statutes of 2004) added siblings
to the list of persons authorized to dispose of human remains.
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