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Mortuary Law > chapters 2-4 > Flashcards

chapters 2-4 Flashcards

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1
Q

What’s statutory law

A

specific to funeral service it grants the Federal Trade Comission the authority to oversee government efforts to prevent unfair methods of competition

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2
Q

Whats the 10th amendment

A

grants state governments police power

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3
Q

state statutes may regulate such areas as

A

the licensing of funeral service proffesionals
defining the parameters for owning and operating a funeral business
seltting minimum workplace standards for funeral service employees
establishing business practices to provide for consumner protections
creating minimum standards that govern the health care community

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4
Q

govenrnment municipalities may write laws specific to their communities through a municipal board, council, or legislature. Laws they pass may be known as:

A

ordinances/local laws in some states

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5
Q

administrative agencies are also in charge of what?

A

the enforcement of administrative laws, rules and regulations
in this order,
constitution>executive branch>administative agency>writes rules and regulations>enforces

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6
Q

a contract law is a legally enforceable aggreement with what four elements

A

an offer-proposal to make a contract
an acceptance- an agreement to an offer resulting in contract
consideration- the bargained for exchange in a contract (money)
contractual capacity- the legal ability to enter in to a contract

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7
Q

an offer and acceptance are often called

A

mutual assent or a meeting of the minds between the parties

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8
Q

mutual assent

A

together with the valid consideration and contractual capacity elements- meet the requirments for a legally binding aggreements

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9
Q

If the terms of a contract are broken or breached what will happen

A

an aggrieved party may file a civil claim to seek restitution and compensation for any damages or loss

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10
Q

What is death

A

the cessation of life, including the permanent cessation of all vital functions and signs

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11
Q

what conditions were accepted that clinical death had taken place and life is extinct

A

no signs of respirations or breathing could be heard or observed and no signs of a pulse or circulation of blood can be detected
20th century

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12
Q

What is the accepted medical standard to conclude life has been lost and may not be restored even when machines are still providing circulation and respiration within the body

A

brain death

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13
Q

whats a corpse

A

the body of a dead human being, deprived of life but not yet disentegrated

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14
Q

what is not classified as a body

A

the dust of a long dead body and the bones of a skeloton

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15
Q

how do you refer to a corpse

A

a dead human body, or when intended for science a cadaver

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16
Q

whats property, broadly speaking

A

anything owned by a person or entity

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17
Q

what is real property

A

land and any improvements made upon it such as a building or structure, personal property is everything else

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18
Q

what is the no property theory

A

common law and subsequent court opinions clearly established a corpse is not real or personal property in the traditional or commercial sense

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19
Q

what is the quasi-property theory

A

provides an exception following death for human remains to be treated as if they are property for the purpose of disposition only while still maintaining the no-property theory associated with the human body

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20
Q

the requirements for a decent final disposition are developed from four sources

A
  1. the standard of care expected in the funeral service profession and affiliated groups serving the funeral service industry
  2. community standards, which may include local, regional, and national values, morals, ethics, rites, and customs
  3. considerations, including the wishes of the decedent; wishes of the survivors, and the need to protecct the public interest
  4. statutes and ordinances that require the decent and proper final disposition of human remains
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21
Q

The right to control disposition follows a priority list

A 
(not the same for every state)
1 Surviving spouse
2 next of kin
3 decedent's gurdian 
4 volunteer
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22
Q

a person may lose a priority right if they were

A

1 the subject of a court order or other similar legal directive protecting the decedent
2 under arrest or charged with a crime related to the death of the decedent
3 under arrest or charged with a crime related to death of the decedent, such as homicide or manslaughter
4 not reasonably available to serve
5 unwilling to serve
6 legally not competent to serve

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23
Q

when no one can be identified on the primary list of persons with a priority right, what happeds

A

state laws usually provide for secondary rights

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24
Q

what are secondary rights

A

mandate a state, county, or municipal official provide for the decent and proper disposition of human remains
court administratives state public health administrators
(social service directors). (city health)

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25
Q

once a persons or person has been identified as having priority right to control a final dispolision they have what legal rights

A

1) custody of the human remains (actual or constructive)
2) the right to convey actual custody to a funeral service practicioner
3) the right to control, manage, and arrange for the care, preperation, transport, funeral and final disposition of human remains

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26
Q

funeral expenses are;

A

a debt of a decedent’s estate

27
Q

where no contract or government statute provides otherise who is responsible for payment

A

the estate has primary responsibility (liability) to pay funeral expenses

28
Q

when an estate is insolvent (unable to pay money owed) state impose limitations and priorities on the order in which claims are paid. limitations may be based on any or all of these five circumstances

A 
1 state of the estate
2 reasonableness of the charges
3 local or ethic customs
4 status in life of the deceased
5 funeral director's knowledge of decendent's financial condition
29
Q

the order in which claims in an insolvent estate are paid are prioritized from highest to lowest, in this order

A

preferred claim- has a priority, advantage or privilage over others
Secured claim- supported by a pledge, mortgage, or lien on assets belonging to the debtor (car loan)
Unsecured claim- not supported by a pledge, mortgage or lien on other assets

30
Q

public authorities have a duty to provide for public health and safety, this includes

A

the responsibility to provide for (and pay for) the decent, These dispositions are usually limited to basic funeral services and in many cases are for the indigent or needy population

31
Q

what is due diligence

A

attention reasonably expected from- and ordinarily exercised by- a person who seeks to satisfy a legal requirement or to discharge an obligation

32
Q

there are four key components to establish due diligence;

A

1) reasonable and prudent actions
2) establish/follow standards of care
3) Training and communication
4) documentation

33
Q

due diligence efforts must be documented to demonstrate:

A

a consistent intent to exersise reasonable and prudent action

34
Q

courts take due diligence efforts into consideration when:

A

resolving a civil claim for loss or damages

35
Q

to consistently demonstrate due diligence efforts, funeral establishments should maintain documentation related to

A

vehicle maintence, facilitly inspections, facility maintenance, crematory inspections, authorizations and releases, personal property inventory, custom merch orders, embalming case reports, body tracking, staff training, applications for survivor benifits

36
Q

a tort is a;

A

private or civil wrong against a person or his or her property, other than by breach of contract, for which there may be action for damages

37
Q

what are the three basic types of torts

A

1 Intentional- when someone knowingly and intentionally engages in conduct with the intent thet another will suffer some form of damage or loss
2 negligent- when someone carelessly or negligentlu engages in - or fails to engage in - conduct that results in an unintentional damage or loss to another
3 strict liability- others may be held liable for their conduct without the need to prove the act was either intentional or negligent

38
Q

the owner of a funeral establishment must maintain their facility to provide;

A

a safe enviornment for consumers, visitors, and employees- including compliance with regulations specific to the facility operations

39
Q

tort claims against an establishment may allege;

A

an invasion of some right the family was entitled to, either by practice or law

40
Q

the rights a family have are often centered around these three areas

A

1 right to decline or accept embalming
2 right of non-interference (right of spulcher)
3 right to privacy and confidentiality

41
Q

The FTC funeral rule identifies three circumstances under which an establishment may charge for embalming

A

1) state or local law requires embalming under the particular circumstances, regardless of any wishes the family might have
2) the funeral director has obtained prior approval for embalming from a family member or other authorized person
3) the funeral director is;
Unable to contact the family member or other authorized person after exercising due diligence
Has no reason to believe the family does not want embalming performed, and
After embalming the body, obtains subsequent approval from the family for the embalming

42
Q

an unwarrented invasion of personal privacy or disclosure of confidential information will;

A

expose a funeral director to a tort claim for damages

43
Q

the right of posession implies

A

receiving the body in the same condition as at time of death

44
Q

Mutilation is

A

1) any altering or change made to a dead human body from the time of death other than by natural causes
2) any deliberate change to the condition from when it was first received (requires authorization and permission)

45
Q

common activities and issues that could potentially be the source of a claim based on mutilation include

A

embalming and other preperation of remains

46
Q

embalming without permission could expose a practitioner to a

A

civil tort claim, and that may extend to a claim for the negligent mutilation of the body

47
Q

embalming is by definition

A

a mutilation because it includes altering or changing the body

48
Q

there is minimal intrusion in performing the embalming process, bit it is

A

implicitly sanctioned by permission to embbalm given from the person with the right to control the final disposition,

49
Q

regardless, any unauthorized or negligent embalming or restorative procedures performed on human remains

A

may expose the funeral director to a claim for mutilation

50
Q

in addition to embalming, an allegation of mutilation might be encountered following;

A

1)the unauthorized removal of a moustache, beard, or facial har
2) the removal of tissue, organs, or other body parts
3) performing procedures other than required for embalming
( in these circumstances the family should be requested to give ther explicit permission before any procedure is performed)

51
Q

in removing organs, tissue, or body parts;

A

a funeral establishment must comply with state laws that regulate anatomical donation and gift programs

52
Q

what is a lien

A

a claim or charge against real or personal property for payment of some debt

53
Q

whats replevin

A

is an action to recover possession of wrongfully withheld personal property

54
Q

a lien or replevin action;

A

cannot be filed against human remains because they are not legally real property or personal property

55
Q

Human remains are always subject to

A

the quasi-property theory, which has established the rights associated with human remains are for the purpose of disposition only

56
Q

no person, including a funeral director may withold human remains or cremated remains in an attempt to;

A

1) receive payment for any goods or service
2) extract payment for any debt
3) seek compensation or material gain
4) exercise control over another for any purpose

57
Q

any attempt to withhold human or cremated remains

A

could result in an actionable tort claim with potentially severe consequences and sanctions levied against the offender

58
Q

mental anguish is

A

a condition which may result from an outragous intentional or grossly negligent act and may be accompanied by physical injury

59
Q

mental anguish claims may arise from;

A

1) the intentional infliction of emotional stress
2) an outragous act- an act with complete disregard for proper conduct which transcends the bouds of common decency
3) a gross negligent act- the intentional failure to perform a manifest duty in reckless disregard of the consequenses as affecting the life or property of another

60
Q

any failure to perform a professional service with the ability and care generally exercised by others in the profession is

A

malpractice. also known as professional negligence

61
Q

aftercare includes

A

those appropriate and helpful acts of counseling, personal and/or writted contact that comes after a funeral

62
Q

indirect aftercare services that may present liabilty exposures include

A

1) making professional referrals
2) sponsoring community education programs
3) hosting support groups
4) hosting social events for seniors
5) providing informational literature and media

63
Q

to manage aftercare risks, funeral directors should verify the organizations or individuals providing indirect aftercare services have

A

1) the proper and appropriate training and credentials
2) adequate and suitable insurance to cover the facilities being used and the activities taking place therein
3) required certifications, licenses, or approvals- if programs are regulated by gov authorities

Mortuary Law (15 decks)

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