BILL ANALYSIS                                                                                                                                                                                                    



                             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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