BILL ANALYSIS                                                                                                                                                                                                    




           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                       SB 1284|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                      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:









                                                                    SB 1284  
                                                                    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).)









                                                                    SB 1284  
                                                                    Page  3



          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  








                                                                    SB 1284  
                                                                    Page  4



            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:








                                                                    SB 1284  
                                                                    Page  5



            
            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








                                                                    SB 1284  
                                                                    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


                                   ****  END  ****