Mort Law Exam 2 Flashcards by Shun Shun

Obligation according to law; responsible (Websters dictionary)

Liability

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Condition of being responsible for an expense; condition of being actually or potentially subject to an obligation (Blacks Law Dictionary)

Liability

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Agreement between two or more competent persons which is enforceable by law.

Contract

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Elements of a contract:
Offer
Acceptance
Consideration

Parties to a contract

Offeror (FH)
Offeree (Family)

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Expression of willingness to enter into a contractual agreement.

Offer

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Agreement to an offer resulting in a contract.

Acceptance

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What the promisor demands and receives as the price for a promise.
How one will pay cash, check, money order, property, etc.

Consideration

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party who initiates or makes an offer.

Offeror (FH)

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person to whom an offer is made.

Offeree (Family)

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Types of contracts:

Express Implied Quasi

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Parties express their intentions at the time of the agreement.
Oral or written
Funeral Contracts should be in writing

Examples:
At need funeral
Prefunded funeral
Also referred to as Pre-Financed

Express contract

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Contract terms are implied by acts or conduct of the parties.

Example
First call
Implied contract becomes an express contract.
Person Contracting:
Not necessary the one responsible for bill
Doing so on behalf of the estate

Implied Contract

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Fictional contract applied by a court For a person who is unable to contract for him/herself.
Raises an obligation in law where, in fact, the parties made no promises but imposes liability on injured party.

Example
Emergency medical care, death, comma patients, etc
In the case of the decendent
Law recognizes need for decent burial
Decendent unable to decide for him or herself
The law under the quassi-contract places the liability for burial on the estate

Quasi contract

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Property of a deceased person
Consisting of:
Real property
Personal property

Estate

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Land

Anything attached to land

Real property:

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Tangible or intangible property

Personal property

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Person effects            
    Furniture            
    Automobiles            
    Jewelry
    Money
    Stocks
    bonds 
    Insurance Policies

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The condition of leaving a WILL at time of death, may or may not provide for funeral expenses.

Testate

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Limitations of the estate:
   Size and solvency of the estate
   Size of the estate            
   Status in life
   Reasonableness of the charges    
   Funeral Director’s knowledge of the decedent’s   financial condition.
   Local and ethnic customs

Size of the estate:
Amount of money available to pay funeral expenses.
Are the funeral expenses proportional to the size of the estate?
Related to “solvency”

Solvency of the estate (One can meet its debits)

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Assets exceeds the liabilities / More cash than expenses – bills. (One can meet its debits)

Solvent estate

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Liabilities exceed the assets, less cash than expenses – bills. (NOT able to meet debit
Estate is unable to pay debts of the decedent
Or the estate unable to pay debts of the estate)

Insolvent Estate

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Amount of money available to pay funeral expenses.

Size of the estate:

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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.”

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Status in life

Courts consideration when determining reasonableness of charges:
“Station in life” “Lifestyle”
Standard of living Economic
Religious Social

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Reasonableness of the charges

``` 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 ```

Funeral director’s knowledge

Of the decedent’s financial conditions Solvency or insolvency of the estate Related to reasonableness of the charges

Local and ethnic customs

What type of funeral arrangements are “customary” for the area? “Traditional” vs. “non-traditional” Related to station in life

Filing of claims

Allowable cost items of a funeral | Recognized by courts

Filing of claims Includes but not limited to - ``` Embalming Professional services Use of facilities Casket Clothing Transportation Cemetery or cremation cost Headstone or monument Flowers Newspaper notices Outer burial container ```

Filing of claims Which may be affected by - ``` Custom Religion Fraternal requirements Legal requirements Cemetery requirements ```

Priority of claim

Funeral bill typically the first claim against an estate that will be paid. Charges must be “reasonable” Amount may be dictated by state law. “Allowable” vs. “preferential”

Common law 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.. In addition to - Volunteer Public authorities

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.

What is a tort?

Torts include -

Invasion of rights. Obstruction of funeral arrangements. Mutilation. Wrongful withholding.

Two duties recognized by law directly impact the funeral director. 1. Not to interfere with the right of burial. 2. Exercise reasonable care to keep the funeral home premises in a reasonably safe condition.

Invasion of rights: Unauthorized embalming - When is embalming required? Unauthorized photos of deceased Burial in the absence of the Next of Kin Right to privacy & Confidentially Failure to comply with wishes.

According to the FTC – Funeral Rule states: “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.”

Embalming: Always have written permission to embalm. From individual with right to authorize embalming.

Invasion of rights: Unauthorized photographs of the deceased Photographs of the deceased. Never take pictures of the deceased without expressed written permission of the person with the right of disposition!!!

Invasion of rights: Burial in absence of the next-of-kin. Allow family members to be present and participate. If they choose to do so.

Invasion of rights: Right to privacy and confidentiality. Concerning the deceased and funeral arrangements. Related to funeral service ethics - confidentially regarding: Cause of death Finances

Invasion of rights: Failure to comply with wishes of the party with the right to control the funeral. Know who is “in charge.”

Obstruction of funeral arrangements: By Hospital or other institutions Wrongfully holding or refusing to release remains of deceased beyond the time necessary to complete an autopsy, paperwork, etc.

Obstruction of funeral arrangements: By Public officials Not releasing a body within a “reasonable” period of time when the body held for forensic and/or legal purpose. Regarding questionable deaths and or certain modes of death (such as murder, suicide, etc.)

Obstruction of funeral arrangements: By Funeral Director Failure to proceed with selected funeral arrangements. Especially due to non-payment of the funeral bill

Altering of an object or dead human body from its original condition.

Mutilation

Based on definition, Embalming Is A Form Mutilation!!!! Why? Due to the fact that it alters the dead human body from its original condition. Right of possession implies receiving the body in the same condition as at the time of death. Until permission to embalm is given.

Unauthorized removal of mustache, beard, etc. Includes male and females Always get written permission!!! Unauthorized removal of tissue, organs and/or medical devices. Includes “invasive” restorative art procedures. Beyond “normal” restorative art processes (cosmetizing, minor tissue building, etc).

Unauthorized embalming | Always verify express written authorization to embalm the body.

Performing procedures other than those required for normal embalming. Unauthorized autopsy. Appropriate individual must give permission. Includes governmental officials

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 Required to determine cause of death Payment of insurance benefits Life/Health insurance/Accidental death ```

Right of public officials or health officer Coroner, Medical Examiner, Justice of the Peace Public officials Duty to investigate cause of death Question or accident, suicide, or homicide might be evident Or no physician in attendance

Wrongful withholding Liens, attachments, and replevin do not apply to a dead human body. Body is not “property.” Related to refusal to surrender upon demand.

A claim or charge against property for payment of some debt. IRS liens placed on an individual home for back taxes Cannot be used to withhold a dead body

Lien

An action to recover possession of personal property, i.e., car. Repossession of an auto for nonpayment Cannot be used to withhold a dead body

Replevin:

Related to contractual obligation: Between the funeral director and family Funeral contract imposes expressed and implied duties on the funeral director. May involve negligence.

``` 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

Failure to 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. ```

Negligent funeral director

Not maintaining the body in a “suitable condition” pending final disposition such as not embalimg or refrigerating.. Failure to honor family requests Improperly supervising cemetery burial

Negligent Acts: Safeguarding the body Body and personal effects

Negligent Acts: Privacy and confidentiality Information about the decedent, family, etc.

Negligent Acts: Implied warranties of “merchantability” and fitness for a particular purpose, Defective merchandise the funeral director is liable, unless a disclaimer is made on the casket and Outer Burial Container Price List and General Price List (Statement of Funeral Goods and Services)

Transportation: Funeral Home as a PRIVATE CARRIER is charged with conveying Body of the deceased and passengers in a Safe and non-negligent manner Includes 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 Facilitators Included with malpractice insurance policy

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 vs being buried.

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)

Tort Liability

Duties and Obligation Originate from two sources

Statutes | Funeral Contract

Funeral Director should not interfere with right of burial. | Exercise reasonable care in keeping funeral home & other premises in safe condition

Liability for the funeral procession 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 Some vehicles may have flags or pennants on them

Not under the direct control of the funeral director Not funeral home employees or agents Funeral director has no control Usually has no liability For wrong instructions Inclusion of an incapacitated driver in procession

Volunteer drivers

Under the direction and control of the funeral director Funeral director is Liable for their actions Funeral home employees or agents are liability of funeral director

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.

Funeral establishment

Premises liability Funeral establishment Related to general duty clause and general workplace safety provisions (OSHA) ``` Specific premises: Funeral Home Church Cemetery Other facilities where funeral rites are held ```

``` Level of care Depends on “status” of the visitor Trespasser Invitee Business visitor ```

Not invited | Very little degree of care if necessary

Trespasser

``` Social guests: Invitee Those who attend the visitation and/or funeral service. Sales Representatives Very high degree or extraordinary level of care Entrance and exits maintained in a safe ```