Those of us who watched AMC's hit drama "Breaking Bad" can remember the scene in the pilot episode where Walt and Jesse set out to dissolve a corpse in hydrofluoric acid. Jesse refuses to follow the advice of Walt (the chemistry professor) to dissolve the body in a plastic container and instead uses a bathtub, just so that the acid melts through the corpse and the bathtub, and crashes against the floor that holds the bathtub, and the floor below that. Here, there is some truth in fiction. In accordance with Assembly Bill 967, signed by Governor Brown in 2017, the liquidation of human remains will be allowed soon, at least for professionals and entities that operate an authorized hydrolysis facility where such processes can be carried out. The new law takes effect on July 1, 2020.
Leaving popular culture and criminal activity aside, this article aims to summarize the basic concepts of the disposal of human remains, covering topics such as who has control over the remains, what laws and documents govern such control, transportation and disposal of the remains, and the extraction of remains after burial.
I. STATUTORY AND REGULATORY RESOURCES
The control and disposal of human remains encompasses numerous legal and regulatory schemes at the local, state, federal and international levels, depending on the location of death and the wishes of the deceased and the family with respect to the disposition. A person may wish to have their ashes spread on the white-sand beaches of the Caribbean. Another may wish that his body be transported back to his home country and buried with his family. No legal or regulatory scheme covers all possible scenarios. The lawyers and families of the deceased must conduct an independent investigation, particularly when the wishes of the deceased, or the wishes of the person in control of human remains, are not customary.
In most cases, legal requirements are regulated at the state level. The legal schemes in multiple California codes control and regulate the disposal of human remains. Division 7 of the Health and Safety Code, entitled "Dead bodies", provides numerous statutes related to the management of human remains, including issues such as custody and the obligation to bury (or bury), the Uniform Law of Anatomical Gifts, embalming and transportation, and disinterest and removal. Sections of Government Code 27460 to 27540 prescribe the duties of the coroner, including investigations and autopsies. Sections of the Health and Safety Code 103050 to 103105 govern permits related to the disposal of human remains, such as permits for disposal (section 103065), permits for remains transported to the state (section 103085), and disposal permits and disposal (section 103105).
At the federal level, the Environmental Protection Agency ("EPA") and the Transportation Security Administration ("TSA") have regulations on the transportation and disposal of human remains. For example, a non-incinerated body or ashes can be disposed of at sea, however, strict environmental regulations apply. Travel with remains is also regulated by the TSA and private airlines. Finally, local government agencies have ordinances and regulations that can be applied to the transport and disposal of human remains. Many of the permits, death certificates and other formal documents are obtained at the local county level. This article addresses some of the common problems and concerns that families and lawyers face after the death of a loved one.
II THE CONTROL OF THE REMAINS
A. Who has control?
Subject to the written wishes of the deceased, the following persons, in the order indicated, have the exclusive right to dispose of the deceased's remains: 1
1. The person authorized for direct disposal (PADD) in an emergency data record of the US Department of Defense. UU. (Form DD 93) (death of military personnel);
2. An agent under a power of attorney for medical care under the Probate Code, sections 4600 to 4806;
3. The competent surviving spouse of the deceased or registered domestic partner;
4. The competent surviving child of the deceased (or most adult children);
5. The competent surviving parents of the deceased;
6. The competent adult brother of the deceased (or most adult siblings);
7. The competent adult survivors in the next degree of kinship;
8. A conservative of the person;
9. A conservator of the inheritance; or
10. The public administrator when the deceased has enough assets.
Not surprisingly, when the deceased was the victim of murder or involuntary manslaughter and the person accused of such crimes is the person who has the right to control the disposition of the deceased's remains under section 7100 of the Health and Safety Code, That right passes to the next person. in priority. 2 In the event that the charges are dropped or the accused acquitted, his right to control the provision is restored. 3
Parties that dispute the person (s) invested (s) with authority to dispose of the remains under section 7100 may request an order to control the disposition before a court of competent jurisdiction. 4 4
If the person with the duty to act in accordance with section 7100 does not act or cannot be found within the legally required period of time (7 to 10 days), the right to control the disposition and organize the funeral goods and services is waived and passes to the next person in priority according to section 7100. 5 When disputes arise regarding the provision or funeral arrangements between persons with equal priority under section 7100, a petition may be filed in the superior court in the county of the domicile of the deceased for the determination of the person who has control of the disposition. 6 The court is required to issue an order ordering that person to bury the remains and establish an alternative order of who will act if the person designated by the court does not do so within seven (7) days. 7 In general, the person who has control of the deceased's remains also has a burial duty, which includes responsibility for reasonable burial costs. 8
The authority to dispose of the remains conferred under section 7100 is exclusive. For example, there is no right to an autopsy for civil discovery purposes. 9 In addition, as discussed below, the person authorized to act under section 7100 has exclusive control over burial and burial arrangements, including guests, which may result in disputes between interested parties.
B. What governs control?
Whenever the deceased's wishes are not contrary to the coroner's duties set forth in the Health and Safety Code, 10 the person entitled to control the provision must faithfully comply with the deceased's written instructions regarding funeral arrangements and disposition. of his remains. . 11 The only legal requirements for drafting are (1) the deceased's instructions clearly and completely establish the deceased's final wishes in sufficient detail to avoid any material ambiguity, and (2) payment arrangements have been made to prevent payment for survivors of the deceased, if any. 12 If the deceased's instructions are set forth in a will, those instructions must be faithfully carried out even when the validity of the will in other respects is in dispute. 13 If a homeless deceased has made no provision and the estate is insufficient to provide burial, no burial duty is imposed on any person residing in this state. In that case, the county coroner in which the person dies can take possession of the remains and dispose of them. 14
When the deceased has not expressed his wishes by will or other written address, the right to control the disposition of the deceased's remains and to make funeral arrangements rests exclusively with the deceased's fiduciary and / or certain surviving family members as described above. fifteen
III. IMMEDIATE POSTMORTEM CONCERNS
Although dealing with pain after a person's death is a burden, many problems must be addressed immediately after death. For example, before a funeral can be organized, it may be necessary for the coroner to conduct an investigation, for an autopsy or for the deceased's wishes regarding organ donation to be fulfilled. Some of the most common and immediate problems after death are addressed here, including anatomical gifts, forensic investigations into the cause of death, autopsies and other procedures, deaths abroad and death certificates.
A. Anatomical gifts
An anatomical gift is defined in the Health and Safety Code as "a donation of all or part of a human body to take effect after the donor's death for transplant, therapy, research or education purposes." 16 Many of us accurately assume that such donation can be made to a hospital, accredited medical school, dental school, college, university or organ procurement organization, for research or education. 17 However, what is less known is that people have the right to make an anatomical gift directly to another person. 18 If the deceased has specified the recipient of an anatomical gift, the gift is subject to the rules established in section 7150.50 of the Health and Safety Code, depending on the purpose of the gift. If the anatomical part cannot be used for the named individual, the organ passes to the eye bank, tissue bank or corresponding organ procurement organization. 19 In addition, if the gift is not for the appropriate purpose, that is, for transplantation, therapy, research or education, the gift and control of the anatomical part is passed to the person who has the obligation to dispose of the body or part. twenty
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1 Health and Saf. Code, section 7100, subd. (a); Conroy v. Regents of the Univ. Of Cal. (2009) 45 Cal. 4th 1244, 1255.
2 Health and safety. Code, section 7100, subd. (b) (1).
3 Health and safety. Code, section 7100, subd. (b) (2).
4 Health and safety. Code, section 7105, subd. (re).
5 Health and safety. Code, section 7105, subd. (a) – (b).
6 Health and safety. Code, section 7105, subd. (C).
7 Health and safety. Code, section 7105, subd. (C).
8 There is an exception to this rule for agents under a power of attorney for medical care. For such agents, the agent is only responsible for burial costs when the agent has specifically agreed to pay the costs or has made decisions about the disposition incurring costs. Health and Saf. Code, section 7100, subd. (a) (1).
9 Walsh v. Caidin (1991) 232 Cal.App. 3d 159, 161.
10 Health and safety. Code, sections 7100-7117.
11 Health and safety. Code, section 7100.
12 Health and safety. Code, section 7100.1, subd. (a).
13 Health and safety. Code, section 7100.1, subd. (C).
14 Health and safety. Code, section 7104.
15 Health and safety. Code, section 7100; Spates v. Dameron Hosp. Ass & # 39; n (2003) 114 Cal.App. 4th 208, 222.
16 Health and safety. Code, section 7150.10, subd. (a) (3).
17 Health and safety. Code, section 7150.50, subd. (a) (1).
18 Health and safety. Code, section 7150.50, subd. (a) (2).
19 Health and safety. Code, section 7150.50, subds. (b), (g).
20 Health and safety. Code, sections 7150.40, subd. (a), 7150.50, subd. (I).
The content of this article is intended to provide general guidance on the subject. The advice of specialists should be sought according to your specific circumstances.
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