Bill Text: CA AB905 | 2011-2012 | Regular Session | Chaptered
Bill Title: Disposition of remains: authorized agent.
Spectrum: Bipartisan Bill
Status: (Passed) 2011-09-26 - Chaptered by Secretary of State - Chapter 321, Statutes of 2011. [AB905 Detail]
Download: California-2011-AB905-Chaptered.html
BILL NUMBER: AB 905 CHAPTERED
BILL TEXT
CHAPTER 321
FILED WITH SECRETARY OF STATE SEPTEMBER 26, 2011
APPROVED BY GOVERNOR SEPTEMBER 26, 2011
PASSED THE SENATE AUGUST 30, 2011
PASSED THE ASSEMBLY SEPTEMBER 2, 2011
AMENDED IN SENATE AUGUST 23, 2011
AMENDED IN SENATE JULY 12, 2011
AMENDED IN SENATE JUNE 9, 2011
AMENDED IN ASSEMBLY MAY 16, 2011
INTRODUCED BY Assembly Member Pan
(Coauthors: Assembly Members Atkins, Cook, and Knight)
FEBRUARY 17, 2011
An act to amend Section 7100 of the Health and Safety Code,
relating to disposition of remains.
LEGISLATIVE COUNSEL'S DIGEST
AB 905, Pan. Disposition of remains: authorized agent.
Existing law lists the person or persons who, in an order of
succession, have the right to control, and duty of disposition of,
the remains of a deceased person if other directions have not been
given by the decedent. The first among the list of persons so
authorized pursuant to this list is an agent under a power of
attorney for health care who has the right and duty of disposition. A
person upon whom the duty of interment is imposed by law who omits
to perform that duty within a reasonable period of time is guilty of
a misdemeanor.
This bill would specify that the designation of a person
authorized to direct disposition (PADD) on a United States Department
of Defense Record of Emergency Data, DD Form 93, as that form exists
on December 31, 2011, or its successor form if approved by the State
Registrar, shall take first priority and be used to establish an
agent who has the right and duty of disposition for a decedent who
died while on duty in any branch or component of the Armed Forces of
the United States, as defined. This bill would provide that this
provision will become operative only if the form and a specified
federal statute are amended to allow a service member to designate
any person, regardless of the relationship of the designee to the
decedent, as the agent who has the right of disposition of a service
member's remains.
This bill would incorporate additional changes in Section 7100 of
the Health and Safety Code, proposed by SB 647, to be operative only
if SB 647 and this bill are both chaptered and become effective on or
before January 1, 2012, and this bill is chaptered last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7100 of the Health and Safety Code is amended
to read:
7100. (a) The right to control the disposition of the remains of
a deceased person, the location and conditions of interment, and
arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section
7100.1, 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:
(1) An agent under a power of attorney for health care who has the
right and duty of disposition under Division 4.7 (commencing with
Section 4600) of the Probate Code, except that the agent is liable
for the costs of disposition only in either of the following cases:
(A) Where the agent makes a specific agreement to pay the costs of
disposition.
(B) 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.
(2) The competent surviving spouse.
(3) The sole surviving competent adult child of the decedent or,
if there is more than one competent adult child of the decedent, the
majority of the surviving competent adult children. However, less
than the majority of the surviving competent adult children shall be
vested with the rights and duties of this section 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.
(4) The surviving competent parent or parents of the decedent. If
one of the surviving competent parents is absent, the remaining
competent parent shall be vested with the rights and duties of this
section after reasonable efforts have been unsuccessful in locating
the absent surviving competent parent.
(5) 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 shall be vested with the rights and duties of this section
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.
(6) 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. Less than the majority of surviving
competent adult persons of the same degree of kinship shall be vested
with the rights and duties of this section if those persons have
used reasonable efforts to notify all other surviving competent adult
persons of the same degree of kinship of their instructions and are
not aware of any opposition to those instructions by the majority of
all surviving competent adult persons of the same degree of kinship.
(7) The public administrator when the deceased has sufficient
assets.
(b) (1) If a person to whom the right of control has vested
pursuant to subdivision (a) has been charged with first or second
degree murder or voluntary manslaughter in connection with the
decedent's death and those charges are known to the funeral director
or cemetery authority, the right of control is relinquished and
passed on to the next of kin in accordance with subdivision (a).
(2) If the charges against the person are dropped, or if the
person is acquitted of the charges, the right of control is returned
to the person.
(3) Notwithstanding this subdivision, no person who has been
charged with first or second degree murder or voluntary manslaughter
in connection with the decedent's death to whom the right of control
has not been returned pursuant to paragraph (2) shall have any right
to control disposition pursuant to subdivision (a) which shall be
applied, to the extent the funeral director or cemetery authority
know about the charges, as if that person did not exist.
(c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains and to proceed
under this chapter to recover usual and customary charges for the
disposition when both of the following apply:
(1) Either of the following applies:
(A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (6), inclusive, of
subdivision (a) exists.
(B) None of the persons described in paragraphs (1) to (6),
inclusive, of subdivision (a) can be found after reasonable inquiry,
or contacted by reasonable means.
(2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts. Written notice may be delivered by hand,
U.S. mail, facsimile transmission, or telegraph.
(d) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kinship and upon the estate of the decedent. However,
if a person accepts the gift of an entire body under subdivision (a)
of Section 7155.5, that person, subject to the terms of the gift,
shall be liable for the reasonable cost of final disposition of the
decedent.
(e) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
(f) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
(g) For purposes of this section, "adult" means an individual who
has attained 18 years of age, "child" means a natural or adopted
child of the decedent, and "competent" means an individual who has
not been declared incompetent by a court of law or who has been
declared competent by a court of law following a declaration of
incompetence.
(h) (1) For the purpose of paragraph (1) of subdivision (a), the
designation of a person authorized to direct disposition (PADD) on a
United States Department of Defense Record of Emergency Data, DD Form
93, as that form exists on December 31, 2011, or its successor form,
shall take first priority and be used to establish an agent who has
the right and duty of disposition for a decedent who 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.
(2) This subdivision shall become operative only if the United
States Department of Defense Record of Emergency Data, DD Form 93,
and Section 1482(c) of Title 10 of the United States Code are amended
to allow a service member to designate any person, regardless of the
relationship of the designee to the decedent, as the agent who has
the right of disposition of a service member's remains.
SEC. 1.5. Section 7100 of the Health and Safety Code is amended to
read:
7100. (a) The right to control the disposition of the remains of
a deceased person, the location and conditions of interment, and
arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section
7100.1, 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:
(1) An agent under a power of attorney for health care who has the
right and duty of disposition under Division 4.7 (commencing with
Section 4600) of the Probate Code, except that the agent is liable
for the costs of disposition only in either of the following cases:
(A) Where the agent makes a specific agreement to pay the costs of
disposition.
(B) 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.
(2) The competent surviving spouse.
(3) The sole surviving competent adult child of the decedent or,
if there is more than one competent adult child of the decedent, the
majority of the surviving competent adult children. However, less
than the majority of the surviving competent adult children shall be
vested with the rights and duties of this section 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.
(4) The surviving competent parent or parents of the decedent. If
one of the surviving competent parents is absent, the remaining
competent parent shall be vested with the rights and duties of this
section after reasonable efforts have been unsuccessful in locating
the absent surviving competent parent.
(5) 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 shall be vested with the rights and duties of this section
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.
(6) 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. Less than the majority of surviving
competent adult persons of the same degree of kinship shall be vested
with the rights and duties of this section if those persons have
used reasonable efforts to notify all other surviving competent adult
persons of the same degree of kinship of their instructions and are
not aware of any opposition to those instructions by the majority of
all surviving competent adult persons of the same degree of kinship.
(7) A conservator of the person appointed under Part 3 (commencing
with Section 1800) of Division 4 of the Probate Code when the
decedent has sufficient assets.
(8) A conservator of the estate appointed under Part 3 (commencing
with Section 1800) of Division 4 of the Probate Code when the
decedent has sufficient assets.
(9) The public administrator when the deceased has sufficient
assets.
(b) (1) If a person to whom the right of control has vested
pursuant to subdivision (a) has been charged with first- or
second-degree murder or voluntary manslaughter in connection with the
decedent's death and those charges are known to the funeral director
or cemetery authority, the right of control is relinquished and
passed on to the next of kin in accordance with subdivision (a).
(2) If the charges against the person are dropped, or if the
person is acquitted of the charges, the right of control is returned
to the person.
(3) Notwithstanding this subdivision, no person who has been
charged with first- or second-degree murder or voluntary manslaughter
in connection with the decedent's death to whom the right of control
has not been returned pursuant to paragraph (2) shall have any right
to control disposition pursuant to subdivision (a) which shall be
applied, to the extent the funeral director or cemetery authority
know about the charges, as if that person did not exist.
(c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains and to proceed
under this chapter to recover usual and customary charges for the
disposition when both of the following apply:
(1) Either of the following applies:
(A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (8), inclusive, of
subdivision (a) exists.
(B) None of the persons described in paragraphs (1) to (8),
inclusive, of subdivision (a) can be found after reasonable inquiry,
or contacted by reasonable means.
(2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts. Written notice may be delivered by hand,
United States mail, facsimile transmission, or telegraph.
(d) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kinship and upon the estate of the decedent. However,
if a person accepts the gift of an entire body under subdivision (a)
of Section 7155.5, that person, subject to the terms of the gift,
shall be liable for the reasonable cost of final disposition of the
decedent.
(e) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
(f) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
(g) For purposes of this section, "adult" means an individual who
has attained 18 years of age, "child" means a natural or adopted
child of the decedent, and "competent" means an individual who has
not been declared incompetent by a court of law or who has been
declared competent by a court of law following a declaration of
incompetence.
(h) (1) For the purpose of paragraph (1) of subdivision (a), the
designation of a person authorized to direct disposition (PADD) on a
United States Department of Defense Record of Emergency Data, DD Form
93, as that form exists on December 31, 2011, or its successor form,
shall take first priority and be used to establish an agent who has
the right and duty of disposition for a decedent who 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.
(2) This subdivision shall become operative only if the United
States Department of Defense Record of Emergency Data, DD Form 93,
and Section 1482(c) of Title 10 of the United States Code are amended
to allow a service member to designate any person, regardless of the
relationship of the designee to the decedent, as the agent who has
the right of disposition of a service member's remains.
SEC. 2. Section 1.5 of this bill incorporates amendments to
Section 7100 of the Health and Safety Code proposed by both this bill
and Senate Bill 647. It shall only become operative if (1) both
bills are enacted and become effective on or before January 1, 2012,
(2) each bill amends Section 7100 of the Health and Safety Code, and
(3) this bill is enacted after Senate Bill 647, in which case Section
1 of this bill shall not become operative.
