BILL ANALYSIS �
AB 905
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Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
Paul J. Cook, Chair
AB 905 (Pan) - As Introduced: February 17, 2011
SUBJECT : Disposition of remains, authorized agent
SUMMARY : Seeks to formally recognize in state law the U.S.
Department of Defense ("DoD") DD Form 93 Record of Emergency
Data ("RED") as an acceptable written instrument of a military
service member's designation of a person to direct the
disposition of his or her remains. Specifically, this bill
provides that the designation by a service member of a person
authorized to direct disposition ("PADD") on a the RED shall be
sufficient to establish an agent who has the right and duty of
disposition of the remains of that service member, provided he
or she died while on duty in any Branch or Component of the U.S.
Armed Forces, as defined in Section 1481 of Title 10 of the
United States Code.
EXISTING LAW :
1)Permits a competent adult to execute a power of attorney for
health care that may authorize the designated agent to make
health care decisions as well as decisions relating to the
personal care of the principal. (Probate Code Section 4671.)
2)Permits the agent, subject to limitations in the power of
attorney for health care, to also make decisions that may be
effective after the principal's death, including directing the
disposition of remains under Section 7100 of the Health &
Safety Code. (Probate Code Section 4683.)
3)Provides that the right to control the disposition of the
remains of a deceased person, the location and conditions of
internment, and arrangements for funeral goods and services to
be provided, unless other directions have been given by the
decedent pursuant to a power of attorney for health care,
vests in, and the duty of disposition and the liability for
the reasonable cost of disposition of the remains devolves
upon, the following in the order named:
i) an agent under a power of attorney for health care,
as provided;
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ii) the competent surviving spouse or domestic partner;
iii) surviving competent adult children;
iv) surviving competent parents;
v) surviving competent adult sibling;
vi) surviving competent adult person in the next degree
of kinship;
vii) the public administrator when the deceased has
sufficient assets. (Health & Safety Code Section
7100(a); Family Code Section 297.5)
4)Provides that the agent under the power of attorney for health
care who has the right and duty of disposition is liable for
the costs of disposition only in either of the following
cases:
viii) Where the agent makes a specific agreement to pay
the costs of disposition.
ix) Where, in the absence of a specific agreement, the
agent makes decisions concerning disposition that incur
costs. In which case, the agent is liable only for the
reasonable costs incurred as a result of the agent's
decisions, to the extent that the decedent's estate or
other appropriate fund is insufficient. (Health & Safety
Code Section 7100(a)(1).)
5)Pursuant to the United States Code, provides that the
Secretary of Defense may provide for the recovery, care, and
disposition of the remains of certain categories of military
service members, including (among others):
x) Any Regular of an armed force under his jurisdiction
who dies while on active duty;
xi) A member of a reserve component of an armed force
who dies while on active duty, performing inactive-duty
training, or under certain other conditions;
xii) Various other members, applicants for enlistment,
retired members, and other persons, as specified. (10
U.S.C. 1481.)
6)Pursuant to the United States Code, only the following persons
may be designated to direct disposition of the remains of a
military service member:
xiii) The surviving spouse of the decedent
xiv) Blood relatives of the decedent
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xv) Adoptive relatives of the decedent
xvi) A person standing in loco parentis to the decedent
if no person covered by (a) to (c) can be found. (10
U.S.C. 1482.)
7)Establishes responsibilities and uniform personnel policies
and procedures for notifying and assisting the next of kin
when an active duty service member sustains injury or dies.
(DoD Instruction 1300.18.)
COMMENTS :
Pursuant to Section 564 of U.S. Public Law 109-163, active duty
and activated guard/reserve members of the military must
complete the federally mandated DD Form 93, in which, among
other things, they must designate a person authorized to direct
disposition ("PADD") of their remains in the event of death.
The document is witnessed by an authorized military official,
and is updated prior to each deployment and every year on the
service member's birthday. The service member may make changes
to his or her DD Form 93 at any time by accessing the record
through special Internet websites maintained by the DoD.
The PADD is of significance to the DoD because in the event of
the member's death, the Department is required to contact the
PADD designated on Form 93 in order to provide the burial
entitlements that deceased service members are entitled to
pursuant to 10 U.S.C. �1482(a). The PADD is designated in Item
13a of the current version of DD Form 93. California law,
however, does not recognize the DD Form 93 as an acceptable
written document for service members in lieu of a durable power
of attorney for health care. This could pose a problem if the
person authorized to direct disposition by the service member on
his DD Form 93 differs from the person authorized to do so
pursuant to Health & Safety Code Section 7100, which specifies a
hierarchy of persons from which to determine the authorized
person, the first being an agent under a power of attorney for
health care if one was designated. This bill seeks to prevent
conflict over the disposition of remains of fallen service
members by formally validating the designation of a person
authorized to direct disposition on DD Form 93 for that same
purpose under existing state law.
Policy Question: The bill does not make the DD Form 93 PADD the
first choice in the hierarchy of people under HSC Section 7100;
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it makes the PADD co-equal with the hierarchal first choice, the
agent for power of attorney for health care. Thus if the PADD
and the agent for power of attorney for healthcare differ, as
the bill is written now, the author's stated goal of litigation
avoidance (see below) is not served. Should the DD Form 93 be
placed at the top level of the hierarchy, above the agent for
power of attorney for health care?
Author's Statement: According to the author, the bill is
intended to avoid potential civil litigation between family
members and provide clarity during the stressful time of
bereavement after the loss of a service member. In support of
the bill, the author writes:
All military service members complete the federally
mandated United States Defense Department Form 93 (DD Form
93) designating Persons Authorized to Direct Disposition
(PADD) of their remains in the event that the unfortunate
should occur. . . . California law does not currently
recognize the DD Form 93 as an acceptable written document
for service members. This conflict between state and
federal law creates the potential for civil actions between
family members over the ultimate disposition of a fallen
service member's remains.
Limited Applicability in Reserve Duty Situations . DD Form 93
only applies when the member dies while serving in a duty status
in which the Department of Defense requires that the designated
PADD direct the disposition of remains as a condition for
Department-provided burial entitlements. The bill accomplishes
this by specifically limiting its applicability to cases where
the service member "died while on duty in any branch or
component of the Armed Forces of the United States, as defined
by Section 1481 of Title 10 of the United States Code."
Prior Related Legislation : AB 2190 (Block) last year would have
likewise recognized in state law the U.S. Department of Defense
DD Form 93 (Record of Emergency Data). The bill died in the
Senate Judiciary Committee due to the potential conflict with
California law regarding the designation of a domestic partner
as an agent having the right and duty of disposition of the
service member's remains.
REGISTERED SUPPORT / OPPOSITION :
AB 905
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Support
Veterans of Foreign Wars (sponsor)
Opposition
None on file
Analysis Prepared by : John Spangler / V. A. / (916) 319-3550