Mort Law Exam 1 Flashcards
Rules of civil conduct commanding what is right and prohibiting what is wrong “Blackstone’s definition.”
What is law?
Branch of law which relates to matters concerned with disposal of the dead.
What is mortuary law?
Rules and principles that society has established for handling and disposition of the dead (textbook).
Also know as:
Mortuary jurisprudence
Funeral Service Law
Funeral Law
Mortuary Law
Non-legislated principles and rules of action.
Predicated upon usage and customs.
Rooted in English and early colonial law.
Common law
Written document containing fundamental principles of government.
Powers and duties of a government.
Rights of the people – societies evolved from small family units to groups
“Law of the land” – the needs of the basic / common need for survival
Federal and individual state constitutions
Constitutional law – developed naturally
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.
EXAMPLES in Mort. Law – Licensure requirements / Health Standards / Bus. Operation
Police power
Body of law created by federal and state administrative agencies.
Implements their power and duties in the form of Rules, regulations, orders, and decisions.
Administrative law
Appointed governmental body charged with implementing particular legislation and have rule making authority
OSHA Occupational Safety Health Administration
FTC Federal Trade Commission
TFSC Texas Funeral Service Commission
Administrative agency
Law passed by a municipal governing body.
Village, town, city
Related to matters not already covered by federal or state law.
Municipal Law pertaining to
Zoning - Commercial vs. Residential
Building Code – Electrical, plumbing, etc
Safety Code – Exits signs, Emergency Evacuation Routes, etc.
Ordinance
Court decisions that established precedent principles.
Determines the “constitutionality” of a statute, rule, or regulation.
Case law
When an issue is resolved by a court
Establishes a “precedent” or “principal”
Controls future court decisions
“Like cases” decided in “like manner”
Very important in mortuary law
Stare decisis
Sources of mortuary law
State laws and regulations
Case law and stare decisis
Common law
Federal law
State laws and regulations
Principle regulators of the funeral service profession.
Based on a state’s “police power.”
Delegated to an administrative agency (TFSC-Texas Funeral Service Commision)
—>
Case law and stare decisis
Mortuary law often dictated by court decisions.
Doctrine of stare decisis.
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
Common law
Federal laws
Federal Trade Commission to protect consumers / prevent monopolies
Occupational Safety and Health Administration – concerned mostly with refineries / petroleum industries
American with Disabilities Act – make accessible for those who are disabled.
Federal Wage and Hour
Body of a human being (identified or unidentified)
Deprived of life
Not yet entirely disintegrated
Dead human body
From the criteria specified would the following be classified as dead human body?
- dust of a long dead body
- is not classified as a dead human body
- bones of a skeleton
- is not classified as a dead human body
- partially dismembered body
- is classified as a dead human body
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(antiquated term for a dead human body
synonymous term with the term “dead body”
“Corpse”
Must meet all three conditions to be “legally” dead.
- body of human
- deprived of life
- not yet entirely disintegrated
State of complete and irreversible cessation of metabolic (chemical & physical processes of life) processes
Leading ultimately to dissolution of the organs.
Death
In 1950 court case defined as the cessation (stoppage) of circulation (heart) and respiration (lungs) Formerly cessation of circulation (heart) and respiration (lungs).
Death
Total and irreversible cessation of brain function.
As indicated by a flat EEG reading.
Brain death
“An individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem.”
Brain death
Measures electrical activity in the brain.
EEG = electroencephalogram
Defined by the Uniform Anatomical Gift Act (UAGA) as
Organs, tissues, eyes, bone, arteries, blood, other fluids, and any other portion of a human body for transplantation.
Body parts
Body parts
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. Historical evolution: No property theory Property theory Quasi-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.
dead body is the property of no one.
No “property” in a dead body.
No property theory (Ecclesiastical Theory)
As societies changed
law became more “secular” or non-religious.
Rather than “ecclesiastical” or church based.
Dead body now seen as “property” of the surviving family member.
Note: no longer an accepted theory
Property theory
Currently accepted theory
of the legal status of a dead human body.
Quasi-Property rights are the next-of-kin’s and or the spouse
Rights associated with the body are as if it were “property” for the purpose of final disposition only.
Quasi-property theory
“Property is often conceptualized as a “bundle of rights.” The ‘bundle of rights’ which have been associated with property include the right to possess, to use, to exclude, to profit, and to dispose.” —>
Dead human body is the quasi-property of the surviving family member with a “bundle of rights.”
What are the “bundle of rights?”
Right to take the body for purpose of final disposition.
Right to allow body parts to be used within confines of the law.
Right to exclude others from possession of the body.
Right to dispose of the body.
Necessity of final disposition:
Police power of the government requires proper disposition of a dead human body.
-Promote and protect the public health.
-Public morality for a “decent” burial.
Necessitates the disposition of the dead by regulated methods —>
Furthermore:
“statutes which impose criminal penalties for the failure to bury or incinerate a corpse within a reasonable time after death have been applied to funeral directors.”
Methods of final disposition:
Burial (interment) 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:
Mausoleum
-Crypt
Building dedicated for this purpose
Individual or family structures
Entombment:
Legal if crematory is properly licensed.
Compliant with state and local laws.
Due Diligence (3rd Party Crematories)?? (Know their procedures)
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 abonded.
Cremation:
Disposition of cremains: Inurment - placing cremains in an urn. Placing cremains in a niche in a columbarium. Buried in a cemetery --->
Scattering cremains:
Scattering garden
Cemetery
Open sea
Three nautical miles from shoreline (6080 ft = nautical mile).
Must be reported to Environmental Protection Agency (EPA)
Death and Burial at sea:
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 (20) drilled in casket shell.
Casket Banded (6) to prevent opening.
Remains must sink rapidly and permanently to ocean floor.
Notify Environmental Protection Agency (EPA)
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Anatomical donation: Cadaver Dead human body intended solely for scientific study and dissection. All states have statutes. Allowing the decedent. Or his/her survivors To make a gift to medical science. -Note: receiving institution has the right to refuse the donation Uniform Anatomical Gift Act.
Law permitting a person of legal age and sound mind.
To donate all or any part of his/her body.
Takes effect immediately upon his/her death.
Or gives the right to another.
Requirements for Decent burial/final disposition:
Community Standards
Considerations
Statutes
Standards
Protection of public health
Public morality and common decency
Respect for the dead
Considerations for Final Disposition - Whose wishes does the funeral director follow? Order of Consideration Wishes of decedent: -Verbal -Written instructions -Pre-need/pre-paid funeral arrangements
Wishes of survivors (TX 711.002)
- Individual with paramount right of disposition. (General order of descent & distribution)
- Spouse / Immediate family member / “Next-of-kin”
Public interest
Protect public health
Honor public morality and common decency.
Legal requirements for disposition of a dead human body.
Statutes
Duty vs. Right
Duty - Obligation
Right - Privilege
Primary duty of final disposition Rest with the Householder Then -Surviving spouse -Next-of-kin Primary person to notify only that a death has occurred.
One who owns or controls real estate where death occurs.
Duty is to notify the proper authorities
Householder
Widow or widower
NOT a blood relative
Surviving spouse
Next-of-kin
Kin
One’s relatives collectively - Referring to blood relationship
Legally, surviving spouse is not kin
Next-of-kin (order)
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.
Based on general rule of priority (Tx711.002) or
Statute of descent and distribution
Well-recognized order
Not an “iron-clad rule” in all states. NOT SET IN STONE
Primary Duty of Final Disposition:
The Duty of Burial – rests with the spouse, next of kin, etc.
Secondary duty of final disposition:
Falls upon public authorities
State
Other governmental body or authority
Right to control final disposition:
Right = privilege / Quasi not property in the truest sense if ignored, someone else steps forward
Primary right of final disposition
Secondary right of final disposition
Possession & control of the body attaches a the MOMENT OF DEATH – family has control
Primary right of final disposition
General Rule of Priority:
Wishes of decedent
Surviving spouse
Next-of-kin
Personal representative
Guardian
Volunteer
Funeral DirectorWishes of decedent
Pre-need / if written
Will
Other document or declarations (How stated – SD politician, radio spot)
WRITTEN OR ORALLYPre-need
Pre-arranged - making funeral arrangements in advance with no payment.
Pre-paid - making funeral arrangements in advance with payment.
Instrument executed with required formality by a person making disposition of his/her property to take effect upon his/her death.
Will:
Important factors
Decedent’s mental capacity
Proximity of expression of preference to time of death.
“If the preference was expressed in close proximity to death, courts will give greater weight than if preference is made years prior to death”
Primary right of final disposition:
Surviving spouse
-Widow/widower
Next-of-kin
KIN–children, parents, etc
Degree of/kindred (relationship)
Relationship to decedent of his/her relatives
Each generation is one degree, counting to a common ancestor (children 1, grandchildren 2).
Based on General Rule of Priority and Statute of Descent and Distribution.
Person who represents and settles the estate of the deceased persons.
Personal representative
Individual appointed by the will.
To carry out its provisions.
And settle the estate or testate.
Executor - male
Executrix - female
If person dies in testate
Individual appointed by the probate court.
To settle an estate.
Administrator - male
Administratrix - female
Judicial appointment (appointed by the courts) of a person to administer the affairs of another person who is incompetent by virtue of age or legal disability. Prior to decedent’s death.
Guardian
Anyone who agrees to assume the right of final disposition.
Friend
Neighbor
Co-worker
Volunteer
Secondary Right of Final Disposition Government State County Local Depending on jurisdiction When and where death occurred
Funeral director undertaking the funeral has lawful rights from two sources.
- Those granted and imposed by statutes, ordinances, and regulations.
- -Licensing regulations allowing the FD to practice profession
- Those arising from the funeral contract.
- -Rights authorized by the person with paramount right of disposition.
FUNERAL DIRECTOR’S DUTY IN CASE OF CONFLICT
Hold body until proper party authorizes its disposition
Should not decide or attempt to influence the decision
Should inform the family no action will be taken until parties come to a settlement
Or until courts decide
Above all remain neutral
Statutes, ordinances, and regulations
Laws and licensing regulations
Authorize and empower the funeral director to practice the profession.
Related to all actions required for the funeral process.
The Funeral Contract -
Between the funeral director and the individual with the right of disposition.
“The funeral director has no rights in his professional capacity with respect to a dead body until such time as a valid contract is entered into between himself and another, either expressly or implicitly.”
Implied contract
first call
Express contract
Statement of funeral goods and services selected
Secondary right of Final Disposition
Government: State County Local
Depending on jurisdiction
When and where death occurred
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Right to take possession and control of the body
Related to person with right of disposition.
Granted the right to take possession and control of the body.
Related to “quasi-property” theory
Custody of the dead body
“A dead body is not property in the ordinary sense of the word, but it is a tangible object over which dominion is granted to the party undertaking the disposition.”
Quasi-property” theory
“However, that right of custody is not absolute. Rather, it is a limited right, given for a specific purpose, and subject to revocation if the party possessing it does not utilize it for a proper purpose.”
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Physical possession of the dead human body.
Occurs only when the body is located at the home of the individual with the right
of final disposition.
Actual Custody
Having authority to control final disposition
Although another party has physical possession, i.e. funeral home.
Even though the funeral director has physical possession of the body
Spouse or next-of-kin has the right to control final disposition
Constructive Custody
Remember “Actual custody” becomes “constructive custody.”
“Custody”
“Right of custody”
Are seen from the viewpoint of the individual who has the paramount right of final disposition.
Rights of the party having priority for disposition
Custody of the dead body
Ability to convey (transfer) custody to the funeral director
Superintend the funeral
-Do that which is necessary to effect final disposition
Act as a trustee for all survivors
Superintend the Funeral
Right to control all matters relating to funeral arrangements
These rights are:
To chose or not chose a funeral director or funeral home
What type of service
What type of funeral merchandise
What method of disposition
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Right to take possession and control the body (occurs at death)
Custody of the dead body
Ability to convey custody
From the individual with the right of disposition to the funeral director.
“Actual custody” becomes “constructive custody.”
Choose the method of final disposition Burial Entombment Cremation Anatomical donation
However
The decedent can request a specific method of disposition in a will.
Name an executor/executrix other than the person with the paramount right of disposition.
Giving the executor/executrix the paramount right of final disposition.
One who holds a position of trust to a beneficiary.
In funeral arrangements, the person who has the right to control the funeral does so on behalf of all survivors.
Trustee
In other words
Trustee typically considers the wishes and desires of other survivors.
But is not legally obligated to do so.
This is true with
Survivor disputes
Effects of divorce, separations, and estrangement’s.
All more common in today’s society.
The funeral director should
Remain Neutral
Conduct the arrangement conference in a professional and dignified manner.
Utilize effective communication skills.
