BILL ANALYSIS                                                                                                                                                                                                    



                                                                    SB 1284


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          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  








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          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  








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            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  








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               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; 









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             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  








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            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,  








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          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  








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          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










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          California Funeral Directors Association (sponsor)


          Cemetery and Mortuary Association of California




          Opposition


          None on file




          Analysis Prepared by:Eric Dang / JUD. / (916)  
          319-2334