BILL ANALYSIS Ó SB 1284 Page 1 Date of Hearing: June 8, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 1284 (Hernandez) - As Amended March 28, 2016 PROPOSED CONSENT SENATE VOTE: 36-0 SUBJECT: HUMAN REMAINS: CONSERVATOR OF THE PERSON OR ESTATE KEY ISSUE: SHOULD A DECEDENT'S CONSERVATOR DETERMINE THE DISPOSITION AND INTERMENT OF THE DECEDENT'S HUMAN REMAINS, INCLUDING FUNERAL ARRANGEMENTS, WHEN THE DECEDENT'S NEXT OF KIN DOES NOT ACT OR CANNOT BE LOCATED? SYNOPSIS If a decedent neglects to leave behind instructions about the interment or disposition of his or her human remains, specified individuals are given the duty to take control of the remains, and to make arrangements, including funeral goods and services. Mostly, this list is made up of next of kin, and prioritizes family members based on the following successive order: an agent under a power of attorney, a surviving spouse, child, parent, sibling, next-of-kin, a conservator, and a public administrator (or coroner). When an individual with a higher level of SB 1284 Page 2 priority is unavailable, or unable to perform the duty described above, the duty is relinquished and reassigned to the next person on the list with priority. Although many interment decisions, if not made by the decedent, are generally made by the next of kin, it is not uncommon for a decedent to be survived by only a conservator - a person appointed by a court to manage the care of another person who cannot properly provide for him- or herself. Although the list of empowered individuals includes a conservator, the current procedures involving relinquishment and reassignment do not consider the conservator. In other words, if a decedent is survived by only a conservator, the conservator is empowered to make interment decisions; however, if a decedent is survived by family members and a conservator, and those family members do not make a decision, current law does not reassign that interment duty to a conservator. This non-controversial bill adds conservators to the list of persons who have the right to take control of the decedent's remains if the decedent's next of kin fails to make interment arrangements or cannot be found, and allows the court to intervene in those few instances when there are multiple conservators assigned with the interment duty and those conservators cannot agree on interment arrangements. This bill is sponsored by the California Funeral Directors Association and has no opposition. SUMMARY: Allows a conservator of the person and a conservator of the estate to control the disposition of a decedent's remains when a decedent's specified next of kin fails to act on interment arrangements, or cannot be found. Specifically, this bill: 1)Adds the conservator of the person and the 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 if the SB 1284 Page 3 decedent's next of kin fails to make interment arrangements or cannot be found. 2)Provides that when multiple conservators share the duty to control the disposition of a decedent's remains and disagree over interment arrangements, a conservator may petition the court for an order to determine who among the multiple conservators has control over the disposition of the decedent's remains. EXISTING LAW: 1)Provides that a decedent, prior to death, may direct the disposition of his or her remains and specify funeral goods and services to be provided as specified. (Health and Safety Code Section 7100.1. Unless otherwise provided, all further statutory references are to the Health and Safety Code Section.) 2)Lists the individuals who, in order of succession, have the right to control the disposition of the remains of a decedent who has not provided interment instructions, as provided. The kinship-based order of succession is specified as follows: a) 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; b) The competent surviving spouse; c) The sole surviving competent adult child of the decedent or, if there is more than one competent adult child of the SB 1284 Page 4 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; d) 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; e) 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; f) 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; g) A conservator of the person when the decedent has sufficient assets; SB 1284 Page 5 h) A conservator of the estate when the decedent has sufficient assets; and i) The public administrator when the deceased has sufficient assets. (Section 7100 (a)(1)-(9).) 3)Provides that if a person authorized to dispose the decedent's remains either fails to act on the disposition, fails to delegate the responsibility, or cannot be found, within a specified period, the right to control the disposition and arrange for funeral goods and services shall be relinquished and passed on to the next authorized person in succession. (Section 7105 (a) and 7105 (c).) 4)Provides that if multiple persons authorized to dispose of the decedent's remains fail to agree on the disposition within a specified period, 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 court to obtain an order to determine who among the parties has control over the disposition and to direct that person to make interment of the remains, as provided. (Section 7105 (b).) 5)Provides that a cemetery authority or crematory may make an interment or cremation of any remains upon the receipt of a written authorization of a person representing himself or herself to be a person having the right to control the disposition of the remains as provided. (Section 7111.) 6)Provides that when no provision is made by the decedent, or where the estate is insufficient to provide for interment and the duty of interment does not devolve upon any other person SB 1284 Page 6 residing in the state or if such person cannot after reasonable diligence be found within the state, the person who has custody of the remains may require the coroner of the county to take possession of the remains and the coroner shall inter the remains in the manner provided for the interment of indigent dead. (Section 7104.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: If a decedent neglects to leave behind instructions about the interment or disposition of his or her human remains, specified individuals are given the duty to take control of the decedent's remains, and to make arrangements, including funeral goods and services. Mostly, this list is made up of next of kin, and prioritizes family members based on the following successive order: an agent under a power of attorney, a surviving spouse, child, parent, sibling, next-of-kin, a conservator, and a public administrator (or coroner). When an individual with a higher level of priority is unavailable, or unable to perform the duty described above, the duty is relinquished and reassigned to the next person on the list with priority. To promote prompt funeral arrangements, the relinquishment and reassignment of the duty generally occurs within seven or ten days (depending on the individual). In the event that several individuals in a given category (e.g., surviving children or surviving parents) are assigned the duty, and those individuals cannot agree on interment arrangements, existing law allows specified parties, including a funeral establishment, to file a petition in court to establish who among the individuals has the right to control the disposition, and to order that individual to inter the remains. Although many interment decisions, if not made by the decedent, SB 1284 Page 7 are generally made by the next of kin, it is not uncommon for a decedent to be survived by only a conservator - a person appointed by a court to manage the care of another person who cannot properly provide for him- or herself. Although the list of empowered individuals includes a conservator, the current procedures involving relinquishment and reassignment do not consider the conservator. In other words, if a decedent is survived by only a conservator, the conservator is empowered to make interment decisions; however, if a decedent is survived by family members and a conservator, and those family members do not make a decision, current law does not reassign that interment duty to a conservator. In support of this 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, 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 SB 1284 Page 8 location and conditions of interment, and arrange for funeral goods and services. To address the problem described by the author, this bill adds the conservator of the person and the conservator of the estate to the list of persons who have the right to control and to dispose the decedent's remains if the decedent's next of kin fails to make interment arrangements or cannot be found. Given that a conservator may already control and dispose a decedent's remains when the conservator is the lone survivor of a decedent, the ability for a conservator to make interment decisions when next of kin do not make the decisions or are unavailable is consistent with existing law. This bill also adds conservators to the court procedure that is established to resolve disagreements among multiple parties equally empowered to make interment decisions. In other words, if there are multiple conservators of the person or multiple conservators of the estate, and each category of conservators disagree on interment arrangements, this bill allows for the funeral or cemetery establishment, or one of the conservators, to petition the court for an order to determine who is empowered to make the interment decision. Although the appointment of multiple conservators is not generally advised, this bill merely extends an existing court process to address the rare instance when multiple conservators are appointed and disagree over interment arrangements. REGISTERED SUPPORT / OPPOSITION: Support SB 1284 Page 9 California Funeral Directors Association (sponsor) Cemetery and Mortuary Association of California Opposition None on file Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334