Exam 3 Study Guide Flashcards
What is the basis for study?
To gain sufficient knowledge to act
What case created the basis for study?
Hawke, Adam vs Murray
The rules of civil conduct
- commanding what’s right
- prohibiting what’s wrong
Law
Broadly determined
Mortuary service in relation to the law
Mortuary Law / Funeral Law
The science or art of disposing of the death
Mortuary Service
What is the law of admiralty?
Law of the sea
What is the Talmudic law? (What other names does it have?)
Jewish Law / Law of Moses
Pentateuch
What is Pentateuch?
First 5 books of old testament, Talmudic law
What are the 5 books in Pentateuch?
- Genesis
- Exodus
- Leviticus
- Numbers
- Deuteronomy
What is Genesis (first book) about?
Beginning of everything
What is Exodus (second book) about?
10 commandments
(exit)
What is Leviticus (third book) about?
Sanctification
What is Numbers (fourth book) about?
Number related things such as the census / statistics
What is Deuteronomy (fifth book) about?
Review of the first 4 books
What is Roman Law?
From the beginning of time up until the fall of the Roman empire
Everything is planned, has a pathway
What is Common Law?
Catholic church law decreed by the pope
Everything is liturgical, everyone knows it all
What is Napoleonic Law?
French law from the time of Napoleon
He wanted everyone to be buried above ground (mausoleums)
What is Anglo-Saxon Common Law?
The basic for most American laws
Generally accepted moral standards
(Ten commandments and Golden Rule as examples)
How is dead body defined?
Body of a human being
Is a fully disintegrated corpse a dead body?
No, it’s human remains
What did the Thomas v Anderson case decide?
Life ends when the heart and respiration stop
What did the Lovats v District Court case decide?
For legal medical purposes: An individual has sustained irreversible cessation of all functioning of the brain, including the brain stem, is DEAD
aka Brain dead is dead
What did the State (Ohio) v Glass case decide?
“A cadaver is not an everlasting thing. After undergoing an undefined degree of decomposition, it ceases to be a dead body in the eyes of the law”
What did English law state about the legal status of dead bodies?
- The body was in control of the church
- No one had property rights of the body
- The body was buried in church property
What did Secular Times state about the legal status of dead bodies?
The courts ruled that survivors had quasi property rights in the dead
What did the US 6th Circuit Court of Appeals sat about quasi property rights in the dead?
Church is no longer responsible for disposition of remains
What did the Brotherton v Cleveland case decide?
There is a legal bundle of rights (and obligations) in an object rather than the object itself
To possess, use, exclude, profit, and to dispose
Disposition: right to the body (must be treated with respect)
Where can there be a ground burial?
In a public or private cemetery
Where can there be an entombment?
In a mausoleum
If you’re going to scatter remains on land (public or private) what do you need to know?
Inform the Environmental Protection Agency
Ask Permission
What do you need to know about scattering remains in the ocean?
Must be 3 nautical miles from the shoreline
Report of the scattering must be filed with the Environmental Protection Agency
What do you need to know about Burial At Sea?
- Weighted casket (insures remains sink to the bottom rapidly and permanently)
- File with the Environmental Protection Agency
- Family isn’t able to go with the Navy during the ceremony and burial part
- Family is given coordinates on where the ceremony is, where the casket is dropped, not where it lands
- Bodies MUST go in a casket
What do you need to know about Anatomical Donations?
- Whole body donation (not organ)
- Donation must be done to a recognized institute
- Can be done at need or in advance
- Remains must meet criteria: can vary, weight and height, no communicable disease, intact
The body is physically within the custody of the next of kin (even if not physically next to them)
Actual Possession
The body is physically in the custody of another (hospital or mortuary)
Constructive Possession
What does the Funeral Contract need to have?
Oral or Written
Disclosures
1) Itemization
2) Cash Transaction
3) Late Charges
4) Collection Fees
5) Estate Liability
6) Joint & Several (individual) Liability
7) Disclaimer of warranties
What is the paramount right to disposition?
Provides an individual with broad authority in regard to the funeral and ultimate disposition of a dead body
What are the factors affecting the general rule of disposition?
Wishes of the decedent (need to be in writing and notarized)
Special Relationship (such as same sex couples which need NOK waiver and acceptance of partner) (or secret affairs or step parents)
Waiver (nok wants nothing to do with the process
What are statutory exceptions of disposition?
Wishes of the decedent (talk to family about your wishes)
Power of Attorney (needs to be a durable POA, which authorizes them to also be in charge of disposition)
Surviving Spouse
What is this:
- The person in charge can donate the deceased without the approval of the deceased
- any individual of sound mind and legal age may donate all or part of their body
in a will
other than a will
next of kin
no question regarding gift
Anatomical Gift
What are the legal duties of the funeral director?
Care for the body
Assume custody
Funeral contract
Statutory Law
What kind of permits does the statutory duties have?
Death certificate
Report of death
To who should the death certificate be filed with? and within how many days?
Local registrar (county in which death took place)
10 days after DOD
When should the Report of Death be filed?
Within 24 hours (to local registrar)
What is the reason for the TFSC?
Laws and rules on embalming and funeral directing
Transportation rules
What is negligent embalming?
Reasonably prudent and careful person skilled in embalming doing less than the bare minimum or unlawful things
(over/under embalming, unnecessary mutilation of the body, too much massaging, etc etc)
What is negligent funeral directing?
Failure to perform many duties involved in directing the funeral service
(examples: being on the phone at a service, taking advantage of family, leave before casket is buried aka covered, etc etc)
What are the contractual duties of the funeral director?
Negligent Funeral Directing
Safeguard the Body
Privacy
Defective Merchandise
Transportation
Aftercare
Which contractual duty of the funeral director is this:
- Failure to keep the body in suitable condition (after 24 hours must be embalmed or refrigerated in Tx)
- Failure to supervise burial at cemetery (in Tx until services are completed)
- Failure to honor requests made by the family
- Failure to dress the body
- Failure to view the body
Negligent Funeral Directing
Which contractual duty of the funeral director is this:
- Reasonable precautions to safeguard the body
Safeguard the Body
Which contractual duty of the funeral director is this:
- Failure to comply with confidentiality
- Privacy during arrangements (photos, keep unwanted people out)
Privacy
Which contractual duty of the funeral director is this:
- Implied warranties
- Warranty of merchantability (warranty provided by manufacturer, only one we provide, pre-interment warranty)
- Fitness for a particular purpose
- Warranties can be properly disclaimed
Defective Merchandise
Which contractual duty of the funeral director is this:
- Negligent driver
- Agent of the funeral home
- Represents drivers to the funeral home employees
- Can rent limo/party bus, only inconvenience is drivers don’t know how to drive in a funeral procession
- Don’t separate procession, wait if separated
Transportation
Which contractual duty of the funeral director is this:
- It’s not grief therapy
- Grief training
- Trained counselor
- Malpractice insurance
- NOT preneed sales
Aftercare
What is this:
- Duty not to interfere with the right of burial
- Duty of exercising reasonable (ordinary) care
- To keep the funeral home premises reasonably safe
Tort liability
What are the tort liabilities of the funeral director?
Wrongful withholding of the body
Loss of the Body
Mutilation of the body
Injury to invitees
Injury to pallbearers and clergy
Which tort liability of the funeral director is this:
- The right to dispose of the body without interference
- In Texas: the body cannot be held for payment
Wrongful Withholding of the Body
Which tort liability of the funeral director is this:
- Misidentified a body
- Interred the wrong body
- Release from the Funeral home, hospital, ME, or nursing home
Loss of the Body
How do we prevent the misidentification, and identify a body as soon as we resume custody?
- Always use Mr/Mrs/Ms
- Add tag even if they have hospital ID
- Never write ON body
Which tort liability of the funeral director is this:
- If body is mutilated, tort is committed
- Embalming is mutilation (signed or oral permission)
- Unauthorized autopsies
- Under the direction of the coroner
Mutilation of the Body
Which tort liability of the funeral director is this:
- Funeral home owes a duty of care to each invitee
- Negligent design
- Negligent notice of condition
Injury to Invitees
Which tort liability of the funeral director is this:
- Duty to control the funeral prior to discovery
- Duty to instruct pallbearers
Injury to Pallbearers and Clergy
Who is legally bound to make arrangements?
NOK
If no NOK: friend / neighbor
If nothing, then county
If NOK has no money to for the service, who can pay?
Next approved person
- FD can only take orders from NOK, even if they’re not the one paying
Who will pay for the service?
- Estate of the decedent
- Surviving Spouse
- Parent (if decedent is a minor)
- Any person who signs the contract
- The gov’t (local)
Which liability of the estate is this:
- Most jurisdiction
- Paramount rights
- Ideally the one paying
Primary Obligor
Which liability of the estate is this:
- Reasonable cost (basic services)
- funeral director knowledge of money
Reasonableness of the funeral bill
Which liability of the estate is this:
- Probate court
Takes approx. 6-10 months
Collection against the estate
Some states have the rule (unless statute) that wife must pay the husband’s services, correct?
Yes
What is this:
- A person who requests funeral may not take financial responsibility
- May agree to contract
- If minor NOK: state assigns someone to take care of NOK, they also have to take care of funeral
Contractual Liability
How is an Executor assigned?
Will assigns them to take care of your finances
Why should the executor sign the contract ‘Y/N, executor’?
The contract is between the FH and deceased, executor is just an agent
How is an administrator assigned?
No will
It’s court appointed
What are the cremation rates for 2000, 2010, 2015, 2025
2000 - 26%
2010 - 39%
2015* - 44.42%
2025* - 55.65%
What are 3 cremation factors?
Growing acceptance
Influx of immigrants
Higher level of education
Should we insist on positive identification of body by NOK before cremation?
Yes
What are the 3 steps in authorization to cremate?
Funeral Home Procedure
Written Authorization
Informed Consent
Which step in the authorization to cremate is this:
- To prohibit misidentification
- Permanent identification of deceased
Funeral Home Procedure
What are permanent ways to identify deceased?
Toe tag
Arm Band
Hospital tag
Which step in the authorization to cremate is this:
- Signed by person with primary rights of disposition
- Where several people share primary rights, they all sign
- May obtain signature via fax
- Protects FH and FD
Written Authorization
Which step in the authorization to cremate is this:
- Fully understand cremation process
- Specific details
Informed Consent
Who owns a retort?
Funeral Home
Independent
What did the Texas Law 2003 have to say about crematories?
Funeral home may own and operate crematory
Before, only own a crematory if you had a perpetual care cemetery
What’s the rule about commingling remains?
One body cremated at a time
Small amount is inevitable
What do we need to know if not all remains fit in an urn?
Never dispose of the extra remains that don’t fit
Written authorization for all discarded remains (if told)
What do we need to know about jewelry and medical devices when cremating?
Removal of jewelry (if told by NOK) and devices (such as pacemaker)
Written authorization for disposal is required
Recommended to cremate body and then put the jewelry on top of remains in urn (in case family wants to retrieve)
What is the period to hold onto unclaimed cremains?
120 days in Texas
What do we need to know about written consent when remains are getting picked up?
Name better be on the authorization form
Get authorization for release
If non NOK picks up, call NOK to authorize, confirm if they can pick up
Get a signed receipt from person receiving cremated remains
What do we need to know when shipping cremated remains?
Family should identify shipper
Only through USPS
Have to label package that it’s remains
What do we need to know when investigating third party crematories?
-Liability for crematory wrongdoings may be imputed to the FH
- Interview of crematory management
- Crematory inspection (are permits up to code? is person properly trained? etc etc)
- Routine investigations
-Crematory records request
What crematory records should we request from third party crematories?
- State crematory license or permit
- Policy and procedure manual for crematory
- List of crematory operators
- Copy of operator certification
- Copies of liability insurance policies
- Copies of cremation authorizations, releases, and receipt forms used by the crematory
- Copies of any state inspection
- Copies of the most recent maintenance / inspection reports
Removal of a body from its place of repose after disposition has been completed
Disinterment
Is disinterment a matter of right?
No
A court will not allow a body to be disinterred unless:
There’s a strong showing it’s necessary
The interest of justice requires it
When is disinterment considered exhumation?
When it’s public interest
When is exhumation considered a public interest?
- Legal nature ordered by a judge
- To settle a case
- To determine cause of death
For an exhumation, do we need permission from the state?
No just the judge (gives court order)
When is it referred to as disinterment?
When it’s private interest
If the disinterment is in the same cemetery who do we contact?
The Austin office to inform
What do we need when the disinterment is to a different cemetery (in or out of state)?
Permit from the state
What requirements do we need to disinter in private interest?
Permit from Austin
Application by NOK
Must have funeral director present
Burial Transit Permit
What are reasons for a private interest disinterment?
Family disputes
Balancing factors
Can we disinter without a permit?
NO
Fixed place (non mobile) for the conducting of funerals and/or for the preparation for the dead prior to disposition
Funeral Home
Who may operate a funeral home?
Corporation
For profit
Non profit (in Texas not churches)
Cemetery
Funeral Home
What is the Americans with Disabilities Act?
To provide individuals with full use and enjoyment of public accomidations
What happened post January 1993?
Buildings were designed to fully comply with ADA standards
What’s the first offense for not complying with the ADA?
$50,000
What’s the subsequent offense for not complying with the ADA?
$100,000
What are the priorities of the ADA?
Ramps
Access to areas
Restrooms
Public telephones and water
