The right to control the disposition of the remains of a deceased is found in California’s Health and Safety Code under the section titled appropriately enough, “Dead Bodies.” The person is either identified in the deceased’s power of attorney for health care or by California’s default plan.
The agent in a power of attorney for health care has the right to decide what to do with the remains. Absent a power of attorney for health care, California confers control the surviving spouse. If there is no surviving spouse, then the majority of surviving children have the right. If no spouse or children, parents have the right of control. The majority of siblings are next in line. If no siblings, the majority in the next degrees of kinship have control. The persons who assume control are responsible for costs if the estate lacks funds.
The person who has control must defer decisions on the location and conditions of interment, and arrangements for funeral goods and services to be provided if the deceased provided direction in writing. However, the writing must both set forth clearly and completely the final wishes of the decedent in sufficient detail so as to preclude any material ambiguity with regard to the instructions; and arrangements for payment of expenses have been made.
The agent in a power of attorney for health care has makes decisions on disposition of remains. Decisions to be made are the location and conditions of interment, arrangements for funeral goods and arrangement for services to be provided. Absent a power of attorney for health care, the spouse makes decisions, then if no spouse, the majority of children.
Author: Mark W. Bidwell