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