3rd Quarter Mortuary Law Test 2 Flashcards
Agreement between two or more competent persons which is enforceable by law.
Contract
Elements of a contract:
Offer
Acceptance
Consideration
Expression of willingness to enter into a contractual agreement
Offer
agreement to an offer resulting in a contract
acceptance
What the promisor demands and receives as the price for a promise.
How one will pay cash, check, money order, property, etc.
consideration
parties to a contract
Offeror
Offeree
party who initiates or makes an offer
offeror
example of an offeror…
FUNERAL HOME
person to whom an offer is made
offeree
example of an offeree
family in a funeral home that accepts or rejects
types of contracts
express
implied
quasi
parties express their intentions at the time of the agreement…either written or oral
express contract
examples of express contracts
At need funeral
Pre-need funeral
contract terms are assumed by acts or conduct of the parties
implied contract
examples of implied contracts
first call
implied contracts become_____________
express contracts
fictional contract applied by a court for a person who is unable to contract for himself.
Raises an obligation in law where, in fact, the parties made no promises.
quasi contract
example of quasi contract
emergency medical care
liability for funeral expenses
Decedent’s estate
Real property
Personal property
property of a deceased person
estate
anything attached to land or land itself
real property
tangible or intangible property, such as personal effects, furniture, vehicles, jewelry, money, stocks & bonds
personal property
personal property can be….
tangible or intangible
condition of leaving a WILL at time of death, may or may not provide for funeral expenses.
testate
state or condition of dying without having made a will…NO WILL
intestate
not able to meet debts
insolvent estate
liabilities EXCEED the assets
estate is unable to pay debts of the decedent or estate
insolvent estate
limitations of the estate
size of estate reasonableness of charges local & ethic customs status in life director's knowledge decedent's financial condition
Amount of money available to pay funeral expenses.
Are the funeral expenses proportional to the size of the estate?
Related to “solvency”
size of the estate
one can meet its debts…assets EXCEEDS the liabilities…more cash than expenses (bills)
solvent estate
STUDY THIS CARD IN DETAIL…
SIZE OF THE ESTATE…
“As a rule, the estate is primarily responsible to pay the reasonable and necessary expenses for disposing of the body. If the estate has property, the funeral director may look to it for payment of the funeral bill. The funeral bill is not a debt of the decedent but is a charge against the estate and must, at least in part , be paid before any debts left by the decedent are met. The amount of the funeral bill which receives this preferential treatment depends upon state law.”
COURTS consideration when determining reasonableness of charges…
status in life
examples of “status (station) in life”
standard of living
religion
examples of “lifestyle”
economic
social
Size and solvency of the estate Right of creditors to collect payment Station in life of the deceased Decedent's religious faith Decedent’s fraternal memberships Local and contemporary customs
reasonableness of the charges
The decedent’s financial conditions
Solvency or insolvency of the estate
Related to reasonableness of the charges
Funeral director’s knowledge
What type of funeral arrangements are “customary” for the area?
“Traditional” vs. “non-traditional”
Related to station in life
Local and ethnic customs
allowable cost items of a funeral includes but not limited to…
embalming uses of facilities clothing cemetery or cremation cost flowers OBC professional services casket transportation headstone/monument newspaper notice
allowable cost items of a funeral may be affected by…
customs fraternal requirements cemetery requirements religion legal requirements
Funeral bill typically the first claim against and estate that will be paid.
Charges must be “reasonable”
Amount may be dictated by state law.
Allowable” vs. “preferential”
priority of claim
May determine who has liability to pay the funeral bill.
Spouse for the spouse
Parents for minor and/or dependent children.
Parent is not liable for the expenses of an adult child..
common law
individual or individuals who volunteer to pay the funeral bill
volunteer
state or county government who pay the funeral bill
public authorities
wrongful act committed by one person against another person and/or their property
tort
torts include…
invasion of rights
mutilation
obstruction of funeral arrangements
wrongful withholding
two duties recognized by law that directly impact the funeral director…
- not to interfere with the right of burial
2. exercise reasonable care to keep funeral home premises in a reasonably safe condition
Unauthorized embalming Unauthorized photos of deceased Burial in the absence of the Next of Kin right to privacy & Confidentially Failure to comply with wishes.
invasion of rights
STUDY THIS CARD…
ACCORDING TO THE FTC…
“Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing.” Also, “If you do not want embalming, you usually have the right to choose an arrangement which does not require you to pay for it such as direct cremation or immediate burial.”
In order to embalm you should always have ___________, from _____________________________.
written permission
individual w/ right to authorize embalming
examples of obstruction of funeral arrangements by hospital or other institutions..
wrongfully holding or refusing to release remains beyond necessary time to complete autopsy, paperwork, etc
examples of obstruction of funeral arrangements by public officials…
not releasing body within reasonable period of time when the body is held for forensic and/or legal purpose.
Regarding questionable deaths (murder, suicide)
examples of obstruction of funeral arrangements by funeral director…
failure to proceed with selected funeral arrangements…especially due to non-payment of the funeral
LEGALLY, embalming is _________
a form of mutilation
altering of an object or dead human body from its original condition
mutilation
right of possession implies receiving the _________________ in the same condition as at_________. Until permission to embalm is given
receiving the body
time of death
mutilation includes…
unauthorized removal of
facial hair
tissue, organs, & medical devices
what types of restorative art procedures are mutilation?
Invasive beyond normal RA processes
Postmortem examination of organs to determine cause of death.
autopsy
Postmortem examination of tissues to determine cause of death.
dissection
exceptions to UNAUTHORIZED AUTOPSY…
Contractual
Payment of insurance benefits
Required to determine cause of death
Life insurance
Public officer
Duty to investigate cause of death
Question or accident, suicide, or homicide might be evident
Or no physician in attendance
Coroner
Medical Examiner
Justice of the Peace
Liens, attachments, and replevin do not apply to a dead human body.
Body is not “property.”
Related to refusal to surrender upon demand.
Wrongful withholding
A claim or charge against property for payment of some debt.
lien
an action to recover possession of personal property…example a car
replevin
other torts involving the FD
negligence
omission
commission
Failure to exercise ordinary care Lack of due care Exercised by a wrongdoer who has not acted as a reasonable person would. Act of omission. Act of commission.
negligence
doing something which a reasonable prudent person WOULD do under ordinary circumstances…
omission
doing something which a reasonable and prudent person would NOT do under ordinary circumstances
commission
types of negligent acts…
negligent embalming
Inadequate disinfection, preservation, and restoration.
Early decomposition
Especially when shipping remains.
Not maintaining the body in a “suitable condition” pending final disposition such as not embalming or refrigerating.
Failure to honor family requests
Improperly supervising cemetery burial
negligent funeral director
Negligent Acts: Safeguarding the body Body and personal effects Privacy and confidentiality Information about the decedent, family, etc.
Defective merchandise Implied warranties of “merchantability” and fitness for a particular purpose, the funeral director is liable, unless a disclaimer is made on the casket and Outer Burial Container Price List Transportation Funeral Home as a PRIVATE CARRIER is charged with conveying Body of the deceased and passengers Safe and non-negligent manner All funeral home livery (rolling stock) Failure to exercise ordinary care will result in a breach of contract and the liability. Aftercare Proper training and credential for personnel. “Grief facilitator” vs. “grief counselor” – Funeral Home personnel are Grief Facilitors Included with malpractice insurance policy
make these cards
Errors in final disposition
Wrong manner and/or placed of final disposition
Wrong grave or wrong cemetery
No outer burial container when one is purchased.
Cremated when should be buried.
Other negligent conduct
Any act of omission or commission
Performed by the funeral director
While completing the duties and responsibilities of professional licensure.
Responsibility for wrongful acts (torts)
liability
Certain restrictions apply
Depending on the relationship between the funeral director and the driver (s).
Some characteristics of a funeral procession:
Cars in close formation of each other / Usually have head lights on
liability for the funeral procession
Drivers that are Not under the direct control of the funeral director
Not funeral home employees or agents
Funeral director has no control
Usually has no liability
volunteer drivers
Drivers Under the direction and control of the funeral director
Liable for their actions
Funeral home employees or agents
agent drivers
Automotive equipment made available for hire.
Funeral director is liable
When such cars and drivers are held as their own.
livery
Place of business used in the care and preparation for the funeral and/or final disposition of dead human bodies.
Related to general duty clause and general workplace safety provisions (OSHA)
funeral establishment
types of specific premises…
funeral home
church
cemetery
other facilities where funeral rite is held
level of care depends on…
status of the visitor
trespasser
invitee
business visitor
not invited…very little degree of care is necessary…
trespasser
social guests
those who attend the visitation and/or funeral service.
entitled to a very high degree level of care
invitee
technically NOT an invitee..
still require a HIGH degree level of care
business visitors
these two require HIGH DEGREE LEVELS of care…
invitee
business visitor
very little degree level of care is required for…
trespassers
Resulting from grief, wounded pride, severe disappointment, indignation, shame, public humiliation, despair, etc.
mental suffering
mental suffering is usually accompanied by __________ or an __________ or ________________ act.
physical injury
outrageous intention
grossly negligent
committed with the intention or purpose of causing harm.
intentional act
committed with complete disregard for proper conduct
outrageous act
committed with complete disregard for acting as a prudent person would under ordinary circumstances.
gross negligent act
intentional act
outrageous act
gross negligent act
are all applicable to…
personal service contract
Involves such personal knowledge, skills or confidence that it can only be performed by the person with whom it is made. Both parties should recognize that any breach will usually cause anguish.
Furthermore….
Involves any contract between the funeral director and family.
Torts we have already discussed.
Only a licensed funeral director qualified to provide professional service to the family.
personal service contract
