BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1284|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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CONSENT
Bill No: SB 1284
Author: Hernandez (D)
Amended: 3/28/16
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 4/5/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SUBJECT: Human remains: conservator of the person or estate
SOURCE: California Funeral Directors Association
DIGEST: This bill provides 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.
ANALYSIS:
Existing law:
1)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, if other directions have not been given by the
decedent. (Health & Saf. Code Sec. 7100.) The kinship-based
list of priority is specified as follows:
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Page 2
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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1)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).)
2)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).)
3)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
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to act within seven days. (Id.)
This bill:
1)Adds 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.
2)Includes 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.
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 updates the passage
of rights and duties of control of the decedent's remains in
accordance with SB 647 and incorporates the rights and duties of
the conservator of the person or the conservator of the estate.
Comments
The author writes:
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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.
Prior Legislation
SB 647 (Committee on Judiciary, Chapter 308, Statutes of 2011)
See Background; Comments.
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
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Page 6
SUPPORT: (Verified4/5/16)
California Funeral Directors Association (source)
OPPOSITION: (Verified4/5/16)
None received
Prepared by:Tara Welch / JUD. / (916) 651-4113
4/6/16 14:42:10
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