Download Funeral Service Law and more Exams Law in PDF only on Docsity!
Funeral Service Law (course outline)
Funeral Service (Mortuary Law) Correct Answer-It is derived largely from the anglo-american common law
- that distinct branch of the law that deals with the rules of conduct/action governing the FD in his/her legal relations Funeral Service Mortuary Law (from glossary) Correct Answer-that branch of law which relates to matters concerned with the disposal of the dead and regulation of funeral directors/embalmers & funeral establishments Sources of Funeral Service Law Correct Answer-1. Constitutional
- Legislative
- Administrative
- Contract law
- Case law
- Common Law Define Funeral Service Laws Correct Answer-historically are the expression or rules/principals of action & conduct which society by experience has found necessary & beneficial in expediting the task of disposing of the dead Constitutional (FS Law) Correct Answer-U.S. Constitution is supreme law of the land a. The Federal Constitution/US Supreme Court b. State Constitution: State Supreme Court (professional regulators at the state level)
Legislative (FS Law) Correct Answer-a. Federal statutes enacted by organized legislative bodies b. State statutes - if conflicts, Fed law rules c. Municipal ordinances, City ordinances, etc. d. Exercise polic power Exercise policy power (Legislative/FS law) Correct Answer-is the inherent power of every sovereignty to pass reasonable laws to protect the safety, health, morals of general citizens 3 types of Legislative items in FS Law Correct Answer-1. Licensure
- Health standards
- Business Operations Administrative (FS Law) Correct Answer-a. Federal rules/regulations b. State rules/regulations c. Administrative agencies-rule making power Examples of Administrative agencies Correct Answer-1. FTC (Federal Trade Commission)
- State boards
- Health deparatment Contract law (FS Law)
- as in Bus Law book Correct Answer-rules of conduct for the performance of business transactions
Dead Human Body - No property theory Correct Answer-legal status of a body was considered to be that of an object exclusively within control of the church for the purpose of burial Dead Human Body - Property theory Correct Answer-false view of the legal status of a dead body being an object of property complete with the characteristics of property Quasi-property theory Correct Answer-current accepted theory
- rights associated with the body or as if were property for the purpose of disposition only
- the custodian or FH has athe right to possession of the body for burial & preservation obligations of final dispositon Correct Answer-conclusive performance of services with respect to the dead human body Methods of final disposition Correct Answer-a. interment/burial b. burial @ sea c. entombment (crypt/mausoleum) d. cremation e. body donation Burial @ Sea rules Correct Answer-- performed on naval vessels
- metal casket w/ no gasket
- family is usually not present because ship is on official business
- in order to perform distance minimum is 3 nautical miles from shoreline
Uniform Anatomical Gift Act Correct Answer-law that permits a person of legal age and sound mind to give all or any part of their body to science
- to take effect upon their death or give rights to another to do so types of Uniform Anatomical Gifts Correct Answer-body donation/body parts organ/tissue donation Requirements for decent burial/final disposition Correct Answer-a. Community standards b. Considerations
- wishes of decedent
- wishes of survivors
- public interest c. Statutes Duty of decent burial Correct Answer-1. surviving spouse
- next of blood kin - Consanguinity
- public authority
- householder Order of DEGREE OF KINSHIP Correct Answer-1. Deceased
- Spouse
- Adult Children
- Parents
- Brothers/Sisters
- decedents guardian - judicially appointed
- volunteer Factors affecting the GENERAL PRIMARY RULE of final disposition Correct Answer-(1) Decedent's wishes
- pre-arranged
- will or other docuemnt
- other declaration (2) Special relationship (3) waiver SECONDARY RIGHT to control final disposition Correct Answer-a. state b. county c. local Rights of party having priority for disposition of the body Correct Answer-1. Actual custody
- Constructive custody Actual custody of dead body Correct Answer-the physical possession of the deat human body Constructive custody of dead body Correct Answer-- where a party has a right to acquire actual custody although another party has physical possession
- ability to convey custody to a funeral director
- superintend the funeral (select casket, service, etc.)
- to do that which is necessary to affect final disposition
- acts as trustee for all survivors
- survivor disputes concerning priority Liability for funeral expenses Correct Answer-1. Contract - express, implied & Quasi
- Decedent's estate
- Common Law may determine who has liability
- Volunteer
- Public authorities Express contract Correct Answer-paraties express their intentions by words whether in writing or orally (1) At Need (2) Pre-financed Implied Contract Correct Answer-contract in which the duties & obligation which the parties assume are implied by their acts or conduct Quasi contract Correct Answer-fictional contract applied by a court for a person whi is unable to contract for themselves
- invoked by the courts when there is unjust enrichment Liability for Decedent's Estate - Limitations Correct Answer-(1) size of the estate - nature & extent of interest that aperson has in real or personal property (2) status in life (3) reasonablness of charges (4) FD knowledge of the decedents financial condition
Common Law possibilities Correct Answer-- spouse for a spouse
- parents for a minor/dependent children Torts Involving the Dead Human Body Correct Answer-- private or civil wrong or injury which there may be an action for damages
- wrongful act that is committed by one person against another persion of their property
- FD has a duty & right to OR not to exercise care and/or interfere in the burial and keep FH under control & in a reasonably safe condition Torts - Invasion of Rights Correct Answer-- when is an embalming required?
- unauthorized photos
- birial in abscence of next of kin
- right to privacy & confidentiality
- failure to comply with wishes of the parth with the right to control the funeral
- a hospital/institution withholding a body & misidentification
- public official
- cemataries/crematories Mutilation Correct Answer-the altering of an object or a dead human body from its original condition
- right of possession implies receiving body in same condition as time of death; if mutilated then a tort has been committed Torts - Mutilation Correct Answer-- unauthorized embalming/restoration
- unauthorized trimming/removal of beard, mustache or hair
- unauthohrized removel of tissue, organs or medical devices
- performing procedures other than what is normally required
- Unauthorized autopsy
- any unauthorized procedures performed on a dead human body Torts - Unauthorized autopsy Correct Answer-1. need for property authority
- autopsy vs. dissection Autopsy vs. Dissection Correct Answer-- contractual (insurance policy)
- right of public officials (includes coroner/ME/JP or other health officials of officers TORTS - Wrongful Withholding Correct Answer-- liens, attachments & replevin do not apply to a dead human body
- refusal to surrender upon demand Replevin Correct Answer-In creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the plaintiff at the outset of the action (i.e. before judgment). Other Torts involving the FD Correct Answer-1. Liability in relation to the funeral procession
- Premises liability in relationship to the funeral establishment
- Error in final disposition
- Other negligent conduct - act of due care
- church
- cemetary
- crematory
- Other Mental Anguish Correct Answer-mental suffering resulting from grief; severe disappointment; wounded pride, shame, public humiliation Intentional act Correct Answer-1. Consciously desires the physical result of his act, whatever the likelihood of the result happening from his conduct, or
- Knows that the result is "substantially certain" to follow from his conduct, whatever his desire may be as to that result." Outrageous act Correct Answer-an act with complete disregard for proper conduct which transcends the bounds of commone decency; excessive, extremelly offensive Gross negligent act Correct Answer-the intentional failure to perform a manifest duty in reckless disregard of the consequences affection the life or property of another REMEMBER: Correct Answer-The purpose of Tort law is to compensate the aggrieved party, not to punish the wrongdoer (Criminal Law) 4 things for Mental Anguish Correct Answer-Intentional act Outrageous act Gross negligent act Breach of personal service contract
Covenants not to compete Correct Answer-Must be valid Employees Covenants must be valid if Correct Answer-a. part of a contract for employment or purchase of business b. terms must be reasonable with respect to
- length of time of restriction
- distance
- Scope of activity Covenants not to compete for employees Correct Answer-a. protects owners client base b. restricts employees ability to earn income
- for a period of time
- in a designated area Bailor-bailee relationship Correct Answer-1. Essential conditions
- types of bailments Disinterment (Exhumation) Correct Answer-removement of a dead human body from place of internment/burial Reasons for Disinterment Correct Answer-a. in the public interest b. for private reasons
Building codes Deed restrictions - restrictive covenants Nuisance Ordinances - mortuary sites Correct Answer-- Zoning -there is a designation of a location of funeral home regulations that divide a city or town in geographical locations and its specifics
- Special Use Permits Restrictions on mortuary sites - Building codes Correct Answer-certain requirements for construction, maintenance, & use or appearance of buildings including 1 - parking 2 - plumbing 3 - electric signs & other Deed restrictions - restrictive covenants for mortuary sites Correct Answer-it is a provision in a deed that limits the use of property & prohibits certain uses Nuisance - Not nuisance per se Correct Answer-means "as it is" - a nuisance at all times & under all circumstances nuisance - Nuisance in fact Correct Answer-the activities that take place that could create inconveniences; location or manner in which they operated ex: traffic/parking involving a funeral home & their hours of operation Mortuary sites - Nuisance Correct Answer-landowners use that interferes with public or another landowners use & their property
- Not nuisance per se
- Nuisance in fact Regulatory specifications of funeral homes Correct Answer-Federal & state Standards Federal Standards Regulatory Specifications Correct Answer-1. OSHA
- EPA
- ADA State Standards Regulatory Specifications (may vary by state) Correct Answer-1 - Health codes 2 - fire/safety standards 3 - fixed location (not mobile) 4 - adequate license personnel 5 - access to rolling stock (auto's) 6 - adequate facilities for conducting funerals 7 - display room w/adequate # & selection of caskets 8 - adequately equipped preparation room 9 - to meet sanitary codes of city/state An adequately equipped preparation room Correct Answer-- should be of sufficient size
- should be secluded from the public
- walls, ceiling & floor should be non-porous & easy to clean
- should be properly ventilated
Ademption Death of legatee Spouse's Election to take against the will Abatement Correct Answer-a proportional reduction in a monetary bequest because of insufficient funds Ademption Correct Answer-the extinction or withdrawal of a legacy under a will be an act equivalent to revocation Death of legative - will Correct Answer-the will must be probated Spouse's Election to Take Against The Will Correct Answer-a spouse may elect to take that share of property that would have been received had the deceased died without leaving a will or the share provided by statute, if the spouse's will does not leave as large a share Intestacy Correct Answer-1. Order of intestate succession
- Methods of Distribution
- Escheat Order of intestate succession Correct Answer-the succession of an heir at law to the property & estate of his ancestor when the latter has died without a will Intestacy - Methods of distribution Correct Answer-property is distributed per the sate law of descent by Per Capita or Per Stirpes
Per capita Correct Answer-per head it's equally divided to the children Per Stirpes Correct Answer-a distribution among heirs according to their relationship of the deceases Escheat Correct Answer-the forfeiture of a descendents property to the estate in the absence of heirs Appointment of Personal Representative Correct Answer-a. Executor/Executrix- apppointed by the will b. Administrator/Administratrix- court appointed Duties of Personal Representative Correct Answer-a. take inventory b. file/pay decedent's & estate tax returned c. pay claim d. Accounting Duties of Rep - Inventory Correct Answer-1 - determine value of probate estate 2 - security interest deducted from value
- real estate mortgage
- personal property Distribution of estate Correct Answer-a. solvent estate b. formal court administration
