3rd Quarter Mortuary Law Test 2 Flashcards
1
Q
Agreement between two or more competent persons which is enforceable by law.
A
Contract
2
Q
Elements of a contract:
A
Offer
Acceptance
Consideration
3
Q
Expression of willingness to enter into a contractual agreement
A
Offer
4
Q
agreement to an offer resulting in a contract
A
acceptance
5
Q
What the promisor demands and receives as the price for a promise.
How one will pay cash, check, money order, property, etc.
A
consideration
6
Q
parties to a contract
A
Offeror
Offeree
7
Q
party who initiates or makes an offer
A
offeror
8
Q
example of an offeror…
A
FUNERAL HOME
9
Q
person to whom an offer is made
A
offeree
10
Q
example of an offeree
A
family in a funeral home that accepts or rejects
11
Q
types of contracts
A
express
implied
quasi
12
Q
parties express their intentions at the time of the agreement…either written or oral
A
express contract
13
Q
examples of express contracts
A
At need funeral
Pre-need funeral
14
Q
contract terms are assumed by acts or conduct of the parties
A
implied contract
15
Q
examples of implied contracts
A
first call
16
Q
implied contracts become_____________
A
express contracts
17
Q
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.
A
quasi contract
18
Q
example of quasi contract
A
emergency medical care
19
Q
liability for funeral expenses
A
Decedent’s estate
Real property
Personal property
20
Q
property of a deceased person
A
estate
21
Q
anything attached to land or land itself
A
real property
22
Q
tangible or intangible property, such as personal effects, furniture, vehicles, jewelry, money, stocks & bonds
A
personal property
23
Q
personal property can be….
A
tangible or intangible
24
Q
condition of leaving a WILL at time of death, may or may not provide for funeral expenses.
A
testate
25
state or condition of dying without having made a will...NO WILL
intestate
26
not able to meet debts
insolvent estate
27
liabilities EXCEED the assets
| estate is unable to pay debts of the decedent or estate
insolvent estate
28
limitations of the estate
```
size of estate
reasonableness of charges
local & ethic customs
status in life
director's knowledge
decedent's financial condition
```
29
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
30
one can meet its debts...assets EXCEEDS the liabilities...more cash than expenses (bills)
solvent estate
31
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.”
32
COURTS consideration when determining reasonableness of charges...
status in life
33
examples of "status (station) in life"
standard of living
| religion
34
examples of "lifestyle"
economic
| social
35
```
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
36
The decedent’s financial conditions
Solvency or insolvency of the estate
Related to reasonableness of the charges
Funeral director’s knowledge
37
What type of funeral arrangements are “customary” for the area?
“Traditional” vs. “non-traditional”
Related to station in life
Local and ethnic customs
38
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
```
39
allowable cost items of a funeral may be affected by...
```
customs
fraternal requirements
cemetery requirements
religion
legal requirements
```
40
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
41
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
42
individual or individuals who volunteer to pay the funeral bill
volunteer
43
state or county government who pay the funeral bill
public authorities
44
wrongful act committed by one person against another person and/or their property
tort
45
torts include...
invasion of rights
mutilation
obstruction of funeral arrangements
wrongful withholding
46
two duties recognized by law that directly impact the funeral director...
1. not to interfere with the right of burial
| 2. exercise reasonable care to keep funeral home premises in a reasonably safe condition
47
```
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
48
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.”
49
In order to embalm you should always have ___________, from _____________________________.
written permission
| individual w/ right to authorize embalming
50
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
51
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)
52
examples of obstruction of funeral arrangements by funeral director...
failure to proceed with selected funeral arrangements...especially due to non-payment of the funeral
53
LEGALLY, embalming is _________
a form of mutilation
54
altering of an object or dead human body from its original condition
mutilation
55
right of possession implies receiving the _________________ in the same condition as at_________. Until permission to embalm is given
receiving the body
| time of death
56
mutilation includes...
unauthorized removal of
facial hair
tissue, organs, & medical devices
57
what types of restorative art procedures are mutilation?
Invasive beyond normal RA processes
58
Postmortem examination of organs to determine cause of death.
autopsy
59
Postmortem examination of tissues to determine cause of death.
dissection
60
exceptions to UNAUTHORIZED AUTOPSY...
Contractual
Payment of insurance benefits
Required to determine cause of death
Life insurance
61
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
62
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
63
A claim or charge against property for payment of some debt.
lien
64
an action to recover possession of personal property...example a car
replevin
65
other torts involving the FD
negligence
omission
commission
66
```
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
67
doing something which a reasonable prudent person WOULD do under ordinary circumstances...
omission
68
doing something which a reasonable and prudent person would NOT do under ordinary circumstances
commission
69
types of negligent acts...
negligent embalming
Inadequate disinfection, preservation, and restoration.
Early decomposition
Especially when shipping remains.
70
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
71
```
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
72
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.
73
Other negligent conduct
Any act of omission or commission
Performed by the funeral director
While completing the duties and responsibilities of professional licensure.
74
Responsibility for wrongful acts (torts)
liability
75
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
76
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
77
Drivers Under the direction and control of the funeral director
Liable for their actions
Funeral home employees or agents
agent drivers
78
Automotive equipment made available for hire.
Funeral director is liable
When such cars and drivers are held as their own.
livery
79
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
80
types of specific premises...
funeral home
church
cemetery
other facilities where funeral rite is held
81
level of care depends on...
status of the visitor
trespasser
invitee
business visitor
82
not invited...very little degree of care is necessary...
trespasser
83
social guests
those who attend the visitation and/or funeral service.
entitled to a very high degree level of care
invitee
84
technically NOT an invitee..
| still require a HIGH degree level of care
business visitors
85
these two require HIGH DEGREE LEVELS of care...
invitee
| business visitor
86
very little degree level of care is required for...
trespassers
87
Resulting from grief, wounded pride, severe disappointment, indignation, shame, public humiliation, despair, etc.
mental suffering
88
mental suffering is usually accompanied by __________ or an __________ or ________________ act.
physical injury
outrageous intention
grossly negligent
89
committed with the intention or purpose of causing harm.
intentional act
90
committed with complete disregard for proper conduct
outrageous act
91
committed with complete disregard for acting as a prudent person would under ordinary circumstances.
gross negligent act
92
intentional act
outrageous act
gross negligent act
are all applicable to...
personal service contract
93
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
