The right of control to disposition of remains in California is covered by law. Mark W. Bidwell, an attorney in California, hits the highlights.
HUNTINGTON BEACH, CA, July 10, 2020 — The right to control the disposition of the remains in California is found in California’s Health and Safety Code. You can find the law about handling of the deceased persons remains under the section titled “Dead Bodies.” While that might sound simple enough, there is more to the story.
When someone dies, a couple of things can happen. They can decide in advance who makes the decision by creating a power of attorney for health care. If there isn’t a power of attorney for health care then the disposition of remains is covered by California’s default plan.
Power of Attorney
If you hold the power of attorney for health care of a deceased person, you have the right of control. This also means you may make anatomical gifts if not prohibited by the power of attorney. But you must be aware that you will be held responsible for costs. If the deceased’s estate lacks the money to pay for the anatomical “gifts” the holder of the power of attorney pays. Being an organ donor and making anatomical gifts have different rules.
The Default Plan, Follow The Family Tree
Without a power of attorney, Mr. Bidwell tells me that there is a specific order of control in California law. First in line is the surviving spouse and next is the majority of surviving children. Without a surviving spouse or children, the parents are next. The siblings come into play if there is no surviving spouse or parents. If a person has no spouse, children, living parents or siblings, then the majority in the next degrees of kinship have control. The persons who assume control are responsible for costs if the estate lacks funds.
If the deceased person had a will or other specific instructions for location and condition of internment and their funeral, those instructions take priority and must be followed. It is important to know that the written instructions must clear and complete. These instructions must be in sufficient detail so as to preclude any material ambiguity. These instructions must be clear and complete with regard to the instructions; and, just as importantly, arrangements for payment have been made.
The Bottom Line
The bottom line is simple. If there is a will or other specific instructions, and there is a plan to pay for those instructions, the instructions must be followed. If not, then a person holding power of attorney will make the decisions of what to do with the persons remains. But they may have some financial responsibility which is important to know. Finally if there is nothing in writing, California Law sets an order or responsibility for people based on family relationships.
Mark W. Bidwell, is a licensed attorney in California.
He can be reached through is office at
4952 Warner Avenue,
Huntington Beach, CA 92649.