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 with the right to control disposition is identified in the deceased’s power of attorney for health care or by California’s default plan.
Who Decides
The agent in a power of attorney for health care has the right to decide what to do with disposition of the remains. Absent a power of attorney for health care, California confers control to the surviving spouse. If there is no surviving spouse, the surviving children determine the disposition. If the children cannot agree, the majority decides. If there is no spouse or children, parents have the right. Siblings are next in line, and the majority rules. Without siblings, the majority in the next degrees of kinship have control. Those who assume control are responsible for the costs if the estate lacks funds.
If the deceased provided directions in writing, the person with control must defer decisions on the location and conditions of interment and arrangements for funeral goods and services. However, the writing must clearly and completely set forth the decedent’s final wishes in sufficient detail to preclude any material ambiguity regarding the instructions and arrangements for payment of expenses.
The agent named in a power of attorney for health care decides on the disposition of the remains. This authority includes the location and conditions of interment and arrangements for funeral goods and services. Without a power of attorney for health care, the spouse has the authority, and if there is no spouse, the majority of children decide.
A power of attorney for health care is an important document to include with your trust.