BILL ANALYSIS �
AB 905
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 905 (Pan)
As Amended August 23, 2011
Majority vote
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|ASSEMBLY: |78-0 |(May 19, 2011) |SENATE: |35-2 |(August 30, |
| | | | | |2011) |
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Original Committee Reference: JUD.
SUMMARY : Prioritizes the person authorized to direct disposition
(PADD) indicated on a United States Department of Defense Record of
Emergency Data, DD Form 93 (DD Form 93), as the agent authorized to
take control of a decedent's remains of a military service member
who dies while on duty under state law. This bill is operative only
if the DD Form 93 and corresponding federal law are amended to allow
the PADD to be any person, regardless of the relationship of the
PADD to the decedent.
The Senate amendments clarify that the PADD shall take first
priority and be used to establish an agent with the right and duty
of disposition, remove the requirement of State Registrar approval,
and add chaptering out language and co-authors.
EXISTING LAW :
1)Requires, under federal law, a military service member to appoint
a PADD annually and prior to deployment.
2)Provides, under federal law, that only the following persons may
be appointed as a PADD:
a) The surviving spouse of the decedent.
b) Blood relatives of the decedent.
c) Adoptive relatives of the decedent.
d) If none of the above persons can be found, a person standing
in place of a parent of the decedent.
3)Provides that, under state law, unless other directions have been
made by a decedent in writing such as a will, the right to control
AB 905
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the disposition of the remains of the decedent, the location and
conditions of interment, and arrangements for funeral goods and
services to be provided, 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:
a) An agent under a power of attorney for health care who has
the right and duty of disposition, as specified.
b) The competent surviving spouse.
c) The sole surviving competent adult child or children, as
specified, of the decedent.
d) The surviving competent parent or parents of the decedent,
as specified.
e) The sole surviving competent adult sibling(s) of the
decedent, as specified.
f) The surviving competent adult person or persons respectively
in the next degrees of kinship, as specified.
g) The public administrator when the deceased has sufficient
assets.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar to
the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations Committee,
pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : A PADD is required to be designated by a military service
member prior to deployment. California law currently does not
recognize a PADD as an individual who may take possession of a
decedent's remains. Consequently, a service member may designate a
family member on the DD Form 93, but California law would designate,
under the ranked list of individuals who may take possession of
remains, the service member's estranged spouse. This bill clarifies
this confusion and recognizes that a PADD will be the first
individual who could take possession of a service member's remains
in state law.
The current DD Form 93 does not allow for the designation of a
domestic partner or same-sex spouse. Accordingly, this bill
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provides that, if at some point the PADD and corresponding federal
law authorize the designation of a domestic partner or same-sex
spouse, then the individual designated on the DD Form 93 will become
the first person who could take possession of the service member's
remains.
The author states, presently, the DD Form 93 is not recognized in
state law leading to potential conflict whenever a California
resident is killed while on duty. The U.S. Department of Defense
(or a qualified Funeral Director) normally will only release remains
to the person designated on the form - that person may not be the
agent who has the right and duty of disposition for a decedent under
state law. This could lead to painful legal disputes between
friends and family members of the decedent.
This bill makes the federal record of emergency data, DD Form 93,
take first priority and be used for disposition of remains when a
member of the U.S. military is killed while on duty. Specifically,
this bill makes the PADD on the DD Form 93 the legal agent who has
the right and duty of disposition for a decedent.
The Veterans of Foreign Wars, the sponsor of this bill, writes, "The
PADD is of special significance to members of the military services
because, in the event of the member's death, the Department of
Defense is required to contact the designated person in order to
provide the burial entitlements that deceased service members are
supposed to receive pursuant to 10 U.S.C. 1482(a). The DD Form 93
is routinely updated by members of the military services on an
annual basis, prior to any deployment, and at any other time the
service member may desire. As such, it is the most recent evidence
of the member's personal wishes."
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334FN:
0002333