BILL NUMBER: AB 2190 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 8, 2010
INTRODUCED BY Assembly Member Block
FEBRUARY 18, 2010
An act to amend Section 7100 of the Health and Safety Code,
relating to disposition of remains.
LEGISLATIVE COUNSEL'S DIGEST
AB 2190, as amended, Block. Disposition of remains: authorized
agent.
Existing law lists the person or persons who, in an order of
succession, have the right to control the , 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 completion of
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, 2010, or its
successor form if approved by the State Registrar, shall be
sufficient 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 United States Armed Forces, as defined .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
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) For the purpose of paragraph (1) of subdivision (a), the
completion of 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, 2010, or its successor form if approved
by the State Registrar, shall be sufficient 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 United States Armed
Forces, as defined by Section 1481 of Title 10 of the United States
Code .