3rd Quarter Mortuary Law Test 1 Flashcards
Rules of civil conduct commanding what is right and prohibiting what is wrong “Blackstone’s definition.”
LAW
Branch of law which relates to matters concerned with disposal of the dead.Text book definition (Stueve/Gilligan)- Rules and principles that society has established for handling and disposition of the dead.
Mortuary Law
Mortuary Law is also known as mortuary ________________
Jurisprudence
“The Pyramid of Law”
Stare decisisCase lawOrdinancesAdministrative lawPolice powerStatutory law/statutesConstitutional lawCommon law
-Non-legislated principles and rules of action.-Predicated upon usage and customs.-Rooted in English and early colonial law.-Customs which have become recognized by the courts as binding on the community (Business Law definition)
Common law
-Written document containing fundamental principles of government.-Detailing the Powers and duties of a government.-Guarantees certain Rights of the people – societies evolved from small family units to groups-These two principles constitute the “Law of the land” – the needs of the basic / common need for survival-Embodying both Federal and individual state constitutions
Constitutional law
-Particular law enacted by a legislative body.-United States Congress / Federal Government-State legislatures / State Government
Statutory law - statutes
Inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens.
Police power
-Body of law created by federal and state administrative agencies.-Implements their power and duties.-Rules, regulations, orders, and decisions.
Administrative law
Appointed governmental body charged with implementing particular legislation and have rule making authority.
Administrative agency
OSHA is an example of
Funeral Administrative Agencies
Developed naturally as societies evolved from small family units to groups, tribes, villages, etc. Which met the basic and common need for survival.Based on human experience and the good for all members of society
Common Law
EXAMPLES of Police Power in Mortuary Law
Licensure requirements Health Standards Business Operations
Law passed by a municipal governing body.Village, town, cityRelated to matters not already covered by federal or state law.
Ordinance
Municipal Laws in Mortuary Law…
Zoning- Commercial vs. ResidentialBuilding Code- Electrical; Plumbing; etc.Safety Code- Exits signs, Emergency Evacuation Routes
Court decisions that established precedent principles.Determines the “constitutionality” of a statute, rule, or regulation.
Case law
Determines if the Supreme Court will hear the case.
Writ of certiorari
When an issue is resolved by a courtEstablishes a “precedent” or “principal”Controls future court decisions“Like cases” decided in “like manner”Very important in mortuary law
Doctrine of Stare Decisis
Sources of mortuary law
State laws and regulationsCase law and stare decisisCommon lawFederal law
Principle regulators of the funeral service profession.Based on a state’s “police power.”Delegated to an administrative agency (TFSC)
State laws and regulations
Applied to matters related to mortuary law.Property rights in a dead human body.Liability for payment of funeral expenses.General Rule of descent with regards to rights & duty of disposition – spouse, children, etc
Common law
Federal Trade Commission to protect consumers / prevent monopoliesOccupational Safety and Health Administration-concerned mostly with refineries / petroleum industriesAmerican with Disabilities Act – make accessible for those who are disabled. Federal Wage and Hour
Federal laws
Body of a human being (identified or unidentified)Deprived of lifeNot yet entirely disintegrated
Dead human body
Antiquated term for dead human bodySynonymous term used for dead bodyMust also meet all 3 conditions to be legally dead
Corpse
Would dust of a “long dead body” be classified as a dead human body?
NO
State of complete and irreversible cessation of metabolic (chemical & physical) processes.Leading ultimately to dissolution of the organs.In 1950 court case it was defined as the cessation (stoppage) of circulation (heart) and respiration (lungs)
Death (the new legal/medical definition)
Total and irreversible cessation of brain function.As indicated by a flat EEG reading.
Brain death
electroencephalogram abbreviated is
EEG
Measures electrical activity in the brain. “An individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem.”
EEG = electroencephalogram
Organs, tissues, eyes, bone, arteries, blood, other fluids, and any other portion of a human body for transplantation.
Uniform Anatomical Gift Act (UAGA) definitionof Body parts
UAGA stands for
Uniform Anatomical Gift Act
After removal of a body part, without unnecessary mutilation. Custody of the remainder of the body rests with the ______________________
person who otherwise has the right to control final disposition.
Property and property rights in a dead human body.
No property theoryProperty theoryQuasi-property theory
Based on early English law.Dead human body within exclusive control of the church.No individual had property rights in a dead body.Therefore, dead body is the property of no one.No “property” in a dead body.
No property theory (Ecclesiastical Theory)
No longer an accepted theory!Opposite ideaDeveloped as law became more “secular” or non-religious.Rather than “ecclesiastical” or church based.Dead body now seen as “property” of the surviving family member.
Property theory
Currently accepted theory of the legal status of a dead human body.Rights associated with the body are as if it were “property” for the purpose of final disposition only.
Quasi-property theory
The bundle of rights is the:Right to ____________ for the purpose of _____________.Right to ________________ to be used within ___________ of the law.Right to _____________ from __________ of the body.Right to _____________ of the body.
take the body final disposition.allow body parts confines exclude others possession dispose
police power of the government requires proper ___________________________________
disposition of a dead human body.
“statutes which impose criminal penalties for the failure to _______or________ a corpse within a _____________ after death have been applied to ______________.”
Bury or incinerateReasonable timeFuneral directors
Methods of final disposition
Burial Entombment Cremation Burial at sea Anatomical donation
Most common form of disposition.Lawful in property dedicated as a public or private cemetery.Or private property in some rural areas.Land dedicated as a “family cemetery.”
Burial
Second most common form of disposition.CryptMausoleumBuilding dedicated for this purposeIndividual or family structures
Entombment
Legal if crematory is properly licensed.Compliant with state and local laws.Due diligence (3rd party crematories)Not “technically” a method of disposition.But a step in a mode of final disposition. TEXAS states must hold remains 121 days before declaring them abandoned.
Cremation
Inurment - cremains placed in an urn.Placed in a niche in a columbarium.Buried in a cemetery.Scattered.
Disposition of cremains
Scattering gardenCemeteryOpen seaThree nautical miles from shoreline. (6,080 ft)Must be reported to Environmental Protection Agency (EPA)
Scattering cremains
Provided under Maritime Law.Protect health and safety of crew and passengers.Death aboard a ship at sea.At least three nautical miles from the shoreline.Body must be weighted.Placed in a special shroud.Or weighted casket.With holes drilled in casket shell.Banded to prevent opening.Remains must sink rapidly and permanently to ocean floor.Notify Environmental Protection Agency (EPA)
Burial at sea (Death aboard a ship at sea)
All states have ________ when concerning anatomical donation.Which is a legal requirement for disposition of a dead human body.
statutes
Community standards for a decent burial
Protection of public healthPublic morality and common decencyRespect for the dead
Placing cremated remains in an Urn.Placing cremated remains in a Niche in a Columbarium.
Inurnment
Funeral homes are liable for the actions of ________________ crematories, so they must do their ______________________.
3rd partyDue diligence
Dead human body intended solely for scientific study and dissection.
Cadaver
all states have statutes allowing the decedent or his/her survivors to ______________________
make a gift to medical science.
Law permitting a person of legal age and sound mind to give all or any part of his/her body.
Uniform Anatomical Gift Act.
When does the Uniform Anatomical Gift Act take effect?
upon his/her death.Or gives the right to another.
requirements for a decent burial/final disposition
community standardsconsiderationsstatutes
this is an obligation…
duty
this is a privilege
right
primary duty of final disposition rest with the…
householdersurviving spousenext of kin
one who owns or controls real estate where death occurs. Duty is to notify the proper authorities
householder
widow (female) or widower (male)NOT a blood relative
surviving spouse
one’s relatives collectively- Referring to BLOOD relationship or adopted into the family.
next of kin
Legally, a surviving spouse is NOT considered…
kin/next of kin
order of Next-of-kin
Children of proper age (18 or older)Parent(s)Sibling(s) -Typically the oldest brother(s) or sister(s)More distant kin -Aunts, uncles, cousins, etc.
some states do REQUIRE the signature of both…
ParentsSiblings
The order of next of kin is based on…
general rule of priority or statute of descent & distribution
The general rule of priority or statute of descent & distribution is NOT…
an iron clad rule in all states
The duty of burial rests with the…
spouse or next-of-kin
secondary duty of final disposition falls upon…
Public authorities such as:StateOr other governmental body or authority
possession and control of the body attaches at the….
moment of death
primary right of final disposition and general rule of priority
wishes of decedentsurviving spousenext of kinpersonal representativeguardianvolunteerfuneral director
Considerations of WISHES OF DECEDENT…
Pre-need/if writtenWillOther document or declarations -Written or Orally
making funeral arrangements in advance with no payment
pre-planned
making funeral arrangements in advance with payment
pre-funded
instrument executed with required formality by a person making disposition of his/her property to take effect upon his/her death.
will
other documents or declarations
written instructionsoral instructions
important factors to consider about wishes of decedent
Decedent’s mental capacityProximity of expression of preference to time of death. -Ex: If the preference was expressed in close proximity to death, courts will give greater weight than if preference was made years prior to death.
Primary right of final disposition generally goes to…
Surviving spouseWidow/Widower
Based on general rule or priority or statute of descent & distribution, how is a DEGREE OF KINDRED COUNTED?
Each generation is one degree, counting to a common ancestor
If a child is legally adopted they are ______________
considered KIN
person who represents and settles the estate of deceased person(s)
personal representative
individual appointed by the will to carry out its provisions and settle the estate
executor/ executrix
types of personal representatives
executorexecutrixadministrator administratrix
An Executor is a____________
male
anyone who agrees to assume the right of final disposition.
volunteer such as:FriendNeighborCo-worker
if the family doesn’t act concerning secondary right of final disposition then ___________ will step in.
Government: State County (Texas) Local
An Executrix is a ___________
female
Individual appointed by the probate court to settle an estate.
Administrator/Administratrix
Who will step up concerning Secondary Right of final disposition ,as far as government, is contigient on….
the jurisdiction when and where death occurred
funeral director undertaking the funeral has lawful rights from what two sources….
- Those granted and imposed by statutes, ordinances, and regulations. - Licensing regulations allowing the FD to practice profession2. Those arising from the funeral contract. - Rights authorized by the person with paramount right of disposition.
An Administrator is a _________
male
An Administratrix is a _________
female
Judicial appointed person to administer the affairs of another person who is incompetent by virtue of age or legal disability.Prior to decedent’s death.
Guardian
FUNERAL DIRECTOR’S DUTY IN CASE OF CONFLICT
- Hold body until proper party authorizes its disposition2. Should not decide or attempt to influence the decision3. Should inform the family no action will be taken until parties come to a settlement4. Or until courts decide5. Above all remain neutral
A funeral director should continue to ____________________ until a family reaches an agreement.
offer options
What are these….Laws and licensing regulationsAuthorize and empower the funeral director to practice the profession.Related to all actions required for the funeral process.
Statutes, ordinances, and regulations
There should be a ________________between the funeral director and the individual with the right of disposition. It is REQUIRED.
funeral contract
“The funeral director has __________in his professional capacity with respect to a _________ until such time as a _____________is entered into between himself and another, either ________ or _________.”
no rightsdead bodyvalid contractexpresslyimplicitly
What type of contract is a First Call?
Implied
What type of contract is a statement of funeral goods and services selected?
Express
if a person dies testate, they__________
had a will
if they die intestate, they ____________
did not have a will
mortuary law is also known as Funeral ____________Law
service
mortuary law is also known as _______________ law.
funeral
FTC is an example of…….
funeral administrative agencies
TFSC- Texas Funeral Service Commission is an example of……
funeral administrative agencies
Would bones of a skeleton be classified as a dead human body?
no
Would a partially dismembered body be classified as a dead human body?
YES
must meet all three of these conditions to be “legally” dead.
- body of human2. deprived of life3. not yet entirely disintegrated
“Property is often conceptualized as a__________________
bundle of rights
The ‘bundle of rights’ which have been associated with property include the right to _____________.
possess useexcludeprofitdispose
Dead human body is the __________of the surviving family member with a _____________.
quasi-property “bundle of rights.”
Promote and protect the public health.Public morality for a “decent” burial.Necessitates the disposition of the dead by regulated methods
Necessity of final disposition:
three nautical miles from shoreline must be reported to environmental protection agency (EPA)
burial at open sea
provided under maritime lawprotect health and safety of crew and passengers
death and burial at sea
Receiving institution of a cadaver has the right to _________________refuse the donation.
refuse the donation.
Anyone who agrees to assume the right of final disposition.
Volunteer
