Mort Law Exam 3 Flashcards by Shun Shun

Is a fixed place of business used in the care and preparation for the funeral and/or disposition of dead human bodies

Funeral Establishment

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Funeral Establishment
The police power of the state and local government authorizes licensing and regulating of funeral directors and funeral establishments

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Funeral Establishment Restrictions

 Ordinances
 Building Codes
 Covenants
 Nuisance
 Regulatory Specifications

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 Laws passed by a municipal
governing body such as a
• Town
• City
 Zoning, building, safety, etc.
 Special Use Permits
 Matters not already covered by federal and/or state laws

Ordinances:

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Laws passed by a municipality by virtue of the police power which regulates the kind of building, residences, or businesses that may be built and used in different parts (zones) of the municipality

ZONING ORDINANCES

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Municipality Zonings
• Residential
• Commercial
• Note: In some municipalities there may be either no zoning or a combination of residential/commercial

Funeral Establishments
• Are classified as commercial use or business use of property
• Generally not allowed to operate in residential zones
• New/changed zoning ordinances may affect existing uses
• “Grand-father” clause - allows existing nonconforming
uses to stay with restrictions

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ISSUED BY LOCAL MUNICIPALITIES
 Grant permission to use a building or facility for a specified use or purpose such as hospitals, churches, etc
 Allow exceptions to zoning ordinances for professions such as doctors and dentists

SPECIAL USE PERMITS

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Funeral Directing is considered a business and not a profession would not quality for
Special Use Permits

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 Regulations which control
requirements for business and
residential buildings regarding
• Fire and Safety
• Maintenance and operation
• Occupancy and use
• Appearance
• Designs, materials used in construction, parking spaces, plumbing, electrical, restrooms, signs, etc.

BUILDING CODES

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Provisions in a deed limiting the use of property and prohibiting certain uses
Example: Deed Restrictions

RESTRICTIVE COVENANTS

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COVENANTS NOT TO COMPETE
 Contracts dealing with transfer
of ownership
 Seller agrees Not To Compete
• For a specified period of time
• Nor in a specified geographical
area
• Both are enforceable by law if
deemed reasonable

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Invasion of a Landowner’s use
of property which interferes
with the public or another
landowner’s use and enjoyment
of his/her property

NUISANCE

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Acts, occupations, or structures
which are nuisances at all times
and under all circumstances
May be prejudicial to public
morals, dangerous to life, or
injurious to public rights

NUISANCE PER SE

FUNERAL HOME IS NOT A
NUISANCE PER SE

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Acts, occupations, or structures
which are not nuisances per se,
but may become _________ by circumstances of the location or manner in which it is operated

NUISANCES IN FACT

FUNERAL HOME MAY BECOME A NUISANCE IN FACT

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 FEDERAL STANDARDS:
• OSHA
• EPA
• ADA

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Rules related to embalming procedures, funeral home personnel protection & safety

OSHA-Occupational Safety & Health Act

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Rules concerning the use and control of formaldehyde and chemicals used by embalmers

EPA-Environmental Protection

Agency

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• To provide individuals with full use and enjoyment of public accommodations
• Requires businesses to remove
architectural, communication and transportation barriers for physically impaired
• Provided it can be done without much difficulty and expense

ADA- American With Disabilities Act

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ADA- American With Disabilities Act
 Established two building standards:
• Buildings built after January 26, 1993 must comply to all ADA requirements

ADA- American With Disabilities Act
• Buildings built before January 26, 1993 have four priorities:
• 1st - ramps;widen doors;cut curbs;& put in handicap parking
• 2nd - provide public access to areas where goods and services are provided
• 3rd - establish access to restrooms i.e. toilet seats;mirrors; sinks;towel dispensers; & grab bars
• 4th - any other modifications
i.e. water fountains; phones;etc.

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ADA WITHHOLDING SERVICES
 Individuals with AIDS or other such diseases shall not be refused service i.e. embalming
 Nor should there be a surcharge for such service
 Doing so is a violation of the ADA
 Family can file action under ADA

ADA ENFORCEMENT
 By U.S. Attorney General
 Or private individuals
 Penalties
• Remove the violation
• First violation $50,000
• Subsequent violations $100,000

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STATE STANDARDS:
 Fixed location
 Licensed personnel
- FDIC -  – however, owner of the funeral home doesn't have to be a licensed funeral director.
 Access to rolling stock

STATE STANDARDS:
 Facilities for conducting
funerals
 Display room with proper number and selection of
caskets (TX 2 full caskets of 1 is cheapest, of 5 displays)
 Adequate preparation room

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STATE STANDARDS:
 PREPARATION ROOM
 Designed and equipped for
embalming and preparing dead human remains
 Sufficient size
 Secluded from the public
 Walls, ceiling, and floor nonporous for easy cleaning

STATE STANDARDS:
 PREPARATION ROOM continued
 Proper ventilation (OSHA)
 Sewer and disposal facilities
 Hot and cold running water
 Preparation Table
 Instruments and chemicals
 Meet local and state sanitary codes

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Area of ground set aside and dedicated for the final disposition of dead human bodies

CEMETERY

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Classifications of Cemeteries
• Public
• Private
• National

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• Accessible for burial by any member of the public • May include designated “sections” – Veterans – Children – Specific religious groups (Jewish,Roman Catholic, Protestant, etc.)

Public Cemeteries

Types of Ownership and Operation - Public Cemetery

``` • Private Individual • Company • Corporation • Local municipality – Village, town, city, county ```

Accessible for burial only by those who are granted permission

Private Cemeteries

Types of Ownership and Operation - Private Cemeteries

* Private individual * Company * Corporation (not-for-profit and or for profit) * Interments may be restricted for religious beliefs and/or customs

* A cemetery created by an act of the U.S. Congress * Burial is typically restricted to eligible veterans of the armed forces (Army, Navy, Marines, etc.) * And eligible dependents (spouse, minor children) - burial is next available, spouses are stacked.

National Cemeteries

Eligibility National Cemeteries

• Established prior to interment • Proof of service – Copy of • Veteran’s service record (VA Form DD-214) or • Veteran’s discharge certificate • Veteran must have been discharged under conditions other than dishonorable

Cemetery Location is dictated by : – POLICE POWER - due to the need to dispose of the dead for public health reasons – EMINENT DOMAIN – The inherent power of a government to take private property for public use in the U.S. – May be used to obtain land for a public cemetery – Requires just compensation to property owners

``` Cemetery Location: • Zoning Ordinances – Same as funeral homes – Cemetery not allowed in residential • Regardless . . . • CEMETERY IS NOT A NUISANCE PER SE ```

The inherent power of a government to take private | property for public use in the U.S.

EMINENT DOMAIN

RULES AND REGULATIONS • Enactments by an administrative body governing the jurisdiction of that agency • Must be “reasonable” • State and local rules and regulations can determine both the cemetery location and operation • Related to POLICE POWER - when protecting the public health

Discrimination • Restrictions on interment may be related to: – Religious beliefs and/or customs • Jewish, Roman Catholic, Protestant, etc. – Military Service • National Cemetery • Most restrictions are with private rather than public cemeteries due to differences in ownership and/or rules and regulations

Cemetery property is considered personal property even though it is “real estate” used for a specific purpose

Rights of Ownership Cemetery property is: – Licensed for interment and not actual ownership of land

``` Rights of Ownership: • Owner has right to : – Interment/bury – Use driveway for access – Use an outer burial container – Have a marker or monument ```

``` Rights of Ownership • To have plot cared for and protected – Perpetual or endowed care • To sell the plot – According to cemetery guidelines – Must obtain permission from cemetery owner – If no interment in the grave ```

``` • Interment is subject to cemetery rules and regulations • Such as: – Outer burial container may be required – Flowers/Plants/Trees/Shrubs/etc. – Type of marker • Flats vs uprights ```

Right to Inter

Desecration of Graves • IS A CRIMINAL OFFENSE • Society has high regard, respect, and morality associated with final resting place of deceased individuals • Public sentiment dictates that cemetery is “sacred ground” and should not be disturbed

Desecration of Graves TEXAS LAW • Third Degree Felony for desecration of a body • Class C misdemeanor for desecration of cemetery property

Generally Held Views • Generally speaking the law looks at cemeteries as sacred ground • Once a cemetery always a cemetery • Look at disinterments UNFAVORABLY unless there is compelling reason to do so

* Removal of a human corpse previously buried in the earth | * Removal of entombed body or cremains from their repository

DISINTERMENT (EXHUMATION)

DISINTERMENT (EXHUMATION) Typically not permitted . . . • Respect for human desire to not have one’s remains disturbed • Sentiment (feelings) of survivors • Protection of public health

``` DISINTERMENT (EXHUMATION) However . . . • Disinterment may be : • Public interest permitted for • Private reasons • Contractual purposes ```

DISINTERMENT Public Interest • One of two principle grounds upon which disinterment may be authorized by law – Disinterment and reinterment occur in same location – Used to further some matter of public interest

DISINTERMENT Public Interest • Gather evidence for criminal or civil cases • State has power to request exhumation • “Police power”

DISINTERMENT Public Interest • To affirm/disaffirm cause of death • Protection from insurance fraud – Greater burden of proof is required than for evidence in a criminal trial

DISINTERMENT Public Interest • Provide access to a public street • Or remains pose a threat to public health (contamination of water supply) • Reinterment will occur in a different location

DISINTERMENT Private Reasons • Second instance upon which disinterment may be authorized by law – Disinterment for purpose of reinterment in another location

DISINTERMENT Due to: • Dissatisfaction with place of interment • Relocation of family • Interment in wrong location (not a family plot) • Abandoned or neglected cemeteries

DISINTERMENT In these cases . . . • Exhumation is a matter of statutory regulation (in most states) • Or case law

DISINTERMENT Requirements • Spouse or next-of-kin make request in writing to trustee of cemetery • Funeral director may be required to attend • Restrictions may be placed for public health reasons

Private Disinterment • Factors related to “reasonable cause” for disinterment – Degree of relationship to decedent – Expressed wishes of decedent – Conduct of persons seeking or preventing disinterment – Length of time since original interment

Private Disinterment • Strength of reasons for or against disinterment • Integrity and compassion to provide a secure and comparable resting place for decedent • Rights and principles of religious body or other institution which granted right to original disposition

``` Contractual Purposes • Mentioned previously • Affirming/disaffirming cause of death – Payment of benefits under an insurance policy – Prevent insurance fraud ```

Right of Disinterment • May be governed by state statute • Applies to disinterment for public and private reasons

Right to Control Disinterment • Rests with the state when required for evidence in a criminal trial • Rests with spouse or next-of-kin in most other cases

However . . . • Disinterment will not occur • “against the will of other relatives except upon strong and convincing evidence that persuades a court of equity that the disinterment is required by justice”

Necessary Permits • Disinterment permits must be obtained from proper authorities • In Texas, written order (permit) from state registrar or designee • Obtained by the funeral director • Four parts (state registrar, local registrar, funeral director, cemetery) • Unless reinterment in same cemetery

Otherwise . . . • If done without proper authorization • Disinterment will be in violation under statute and common law • Usually considered simple larceny

Cremation • National average for cremation is about 25% • Increases each year

Cremation Growth due to: • Public acceptance • Higher level of education • Relocation of elderly to “SUNBELT” STATES (FLORIDA, ARIZONA) • Immigrants from other cultures who prefer cremation

Cremation Services • Provides new options • Increased liability - due to the irreversible nature of cremation

``` Authorization for Cremation • Identification • Written authorization • Informed consent • Note: Best way to prevent liabilities is to do the above three steps!!!!!!!! ```

``` Identification • Proper identification of remains • By spouse or next-of-kin • Obtain written verification • Ensure correct body is cremated ```

Written Authorization • Signed by individual with primary right of disposition • Surviving spouse or next-of-kin • Signed by all parties if more than one individual • Obtain via fax if individual(s) live in distant location

Informed Consent • Consumer must fully understand cremation process • Authorization form should include detailed description of cremation process

Permits • Disposition permit • Burial-transit permit • Certificate of Death (Death Certificate) – Requirements vary by state – Also time-frame for obtaining and filin

At the Crematory • Present authorization forms and permits • Ensures written authorization to cremate • Protects crematory and funeral home from liability

Disposition of Cremated Remains • Written instructions • Included on authorization form

Retrieval from the Funeral Home • Who is authorized to obtain cremated remains from the funeral home? • Individual(s) designated on the authorization form • Obtain signed receipt • Place in funeral home file

Shipping Cremated Remains • Designate shipper and method on authorization form • Include release of liability for any loss during shipping • Pack cremated remains in temporary plastic urn with triple container • Paper trail to track shipment

Scattering Cremated Remains • Family may express wishes to scatter cremated remains • May be illegal in certain areas • Funeral director should ensure local, state, and federal laws are reviewed • Prior to scattering

Unclaimed Cremated Remains • Authorization form should state a “storing fee” will be charged for unclaimed cremated remains • After specified period of time

Unclaimed Cremated Remains • Include authorization to dispose of “in any lawful manner” • After specified period of time • Funeral home should have cemetery lot • Place unclaimed cremated remains in a vault • Family can recover at a later date

Cremation and Torts • Liability • Full liability for funeral home owned and operated crematory • Those who contract with an independent crematory • May still be sued for crematory “misdeeds”

Types of Torts • Commingling of cremated remains – Cremate only one body at a time – Unless multiple family deaths where written authorization is obtained • Ensure crematory has strict policy • Cremation Authorization form should state that small amount of commingling is inevitable

Failure to Remove All Cremains • Not returning all cremated remains • When cremated remains will not fit in an urn • Remainder discarded in an unethical or careless manner

Excess Cremated Remains • Explain that some urns may not hold all cremated remains • Authorization form should state that excess cremated remains will be returned in a temporary urn

Jewelry • When the family wants jewelry to remain with the body • Have them Authorize in writing • And specify in writing that the cremation process will destroy jewelry

``` Medical Devices • Pacemakers and radioactive implants • Ask family about presence of such devices • Authorize removal • Method of disposal • Embalmer should check body • Avoid damaging crematory retort ```

Special Kinds of Wills:

A. Nuncupative B. Holographic C. Soldiers and Sailors

is an oral will - Dictated b testator/testatrix during last illness. - Before appropriate witnesses - DISPOSES OF PERSONAL PROPERTY NOT REAL ESTATE. - Afterwards written down

Nuncupative Will

Hand-written by testator/testatrix | -Legal if signed by appropriate witnesses

Holographic Will

nformal nuncupative (oral) will by a soldier in the filed or a sailor at sea. -DISPOSES OF PERSONAL PROPERTY ONLY (side note: personal property is a bequest)

Soldiers and Sailors Will

Amendments/Revocation of Wills (Add to or done away w/ a will) A. By act of Testator B. Operation of the law C. Codicil (amendment)

A Will may be revoked by the testator at any time prior to the death of the testator. *A Testator can deliberately destroy a will, this constitutes a _______

REVOCATION

An addition or amendment of a last will and testament executed with same formality as the will.

CODICIL

Changes in a will may occur by Operation of Law

A. DIVORCE B. Marriage or remarriage C. Death of Legatee

DIVORCE: 1. A divorce automatically revokes a will to the extent of the property left to the divorced spouse if the court orders a division of property. 2. If no court ordered division-will is not affected.

Marriage or remarriage; 1. If a person makes a Will and later marries, the marriage may revoke the will in whole or in part. 2. Or the will may be presumed to be revoked unless made in contemplation of the marriage or unless it makes provision for a future spouse. (ex. add a clause to say, "in the event that I get married) 3. In some states a marriage will not revoke a Will completely, but so that the spouse will get the estate that would have been received in the absence of a Will.

(someone named in a will to receive property) | One who inherits personal property under will

Death of Legatee

DISTRIBUTION PROBLEMS UNDER THE WILL:

A. ABATEMENT B. ADEMPTION C. DEATH OF LEGATEE D. Spouse's election to take against the will

Proportional reduction of a legacy under a will when assets out of which such legacy are payable are not sufficient to pay it in full. (The way to remember the difference in Abatement is that the gift still exist, but its less than it was, or flood waters were higher on the day of the flood, but the abatement has caused the flood waters to subside some)

ABATEMENT

Extinction or withdrawal of legacy by testator's act.

ADEMPTION

*In some states surviving spouse may elect to take one-third to one half of decedent's property instead of the share provided.

Spouse's election to take against the will:

DISTRIBUTION OF PROPERTY-INTESTACY:

``` A. Methods of distribution when individual dies intestacy (without a will) B. INTESTACY C. INTESTATE SUCCESSION D. ESCHEAT (person dies no HEIRS) E. Administration of an Estate F. Personal Representatives G. INSOLVENT ESTATE H. Priority of Claims against an Estate in Intestacy I. Additional Estate Documents ```

Methods of distribution when individual dies intestacy (without a will) TWO METHODS: a. Per capita b. Per stirpes

Equal share is given to each of a number of persons. | -All of whom stand in equal degree to decedent.

Per capita

- Property divided into lines of descent . - Share of each line then divided by way of representation - Not all parties receive an equal share.

Per stirpes

State or condition of dying without having made a will

INTESTACY

1. Succession of an heir at law to property and estate of his/her ancestor when the latter has died without a will. 2. Title by Descent: a. Spouse b. Next-of-kin, if no spouse: - Children, grandchildren, parents, siblings, - grandparents, aunts/uncles, etc.

INTESTATE SUCCESSION

Forfeiture of decedent's property to the state in absence of heirs. (person dies no HEIRS)

ESCHEAT

Appointment of PERSONAL REPRESENTATIVE | -Person who represents and settles the estate of deceased persons.

Administration of an Estate

Male/Female appointed by the will to carry out provisions thereof and settle the estate.

EXECUTOR/EXECUTRIX

Male/female appointed by the court to settle an estate. | Estate representation due to intestacy.

ADMINISTRATOR/ADMINISTRATRIX

ADMINISTRATION OF THE ESTATE: | a. Duties of the Representative

INVENTORY: - Listing and valuation of a decedent's assets. - Deduct security interest(s) from: * Real estate, i.e. MORTGAGE * Secured loan on parcel of real estate. * Personal Property - Pay claims and taxes: * Income Taxes * Death Taxes - Accounting: * Inventory value plus income less expenses - Distribution of property (whatever is left; the estate has been settled.)

Estate which is unable to pay debts of decedent and/or the estate. (any assets would be liquidated)

INSOLVENT ESTATE

Priority of Claims against an Estate in Intestacy: 1. Funeral expenses (preferred claim)* 2. Administration expenses 3. Taxes 4. Last illness expenses 5. All other expenses

Power of attorney can be GENERAL or SPECIFIC - General (WILL HANDLE ALL OF YOUR AFFAIRS) - Durable - Springing

Instrument in writing; ~Authorizing another to act as one's agent or attorney. PERSONS IS AN AGENT IN FACT AND BY LAW TERMINATES AT TIME OF DEATH OF THE PRINCIPAL.

Power of Attorney

1. Principal executes a power of attorney. 2. Comes into and remains in effect when principal becomes disabled. 3. Duties may include: *Health-care decisions -Admission to hospital; Nursing Home -Medical Treatment - feeding tubes, etc. (*This type will supersede blood relationship) (MAKE A COPY OF THE 1st PAGE, TYPE OF DISPOSITIONS, SIGNATURE PAGE)

DURABLE POWER OF ATTORNEY "DPOA" (APPOINTMENT OF AGENT)

Written document that governs. - Withholding - Withdrawal - Of life-sustaining treatment - For individuals with incurable or irreversible condition that will cause death.

Living Will

1. Becomes effective at a future time. 2. That is, it "springs up" upon the happenings of a specific event chosen by the Power of Attorney (principal's physician). 3. Often that event is the illness or disability of the Principal 4. Principal's physician will determine whether Principal is competent to handle his/her financial affairs. (Once a person has been diagnosed with Alzheimer and it is gradual you can still make decisions, but your mental capacity is leaving you need one of these)

"Springing" Power of Attorney

(In TX if a spouse dies without a will the surviving spouse gets half and the other half will go to the offspring)

model law enacted to achieve uniformity in probate proceedings throughout the US not adopted by all states

Uniform probate code (UPC)

act or process of proving a will

Probate

court having jurisdiction over estates | court having jurisdiction over states

Probate court

a gift of real estate made by will

Devise

one who inherits real estate under a will

Devisee

a gift of personal property under will

Bequest or Legacy

one who inherits personal property under a will

Legatee

an instrument executed with required formality by a person making disposition of his/her property (estate) to take effect upon his/her death

Will

Will Requirements 1. legal age 2. testamentary capacity 3. formality

Legal age: 18 or over in most states

Testamentary capacity 1. estate 2. testator/testatrix must know the intent

real and or personal property of a deceased person

estate

Testator/testatrix must know the: 1. intent 2. know nature and extent of the estate 3. know nature objects of bounty (bounty is a generous gift, given freely)

Will Formalities 1. in writing 2. signed by the testator/testatrix (person who makes the will) 3. witnessed by two or more eligible. 4. disinterested witnesses (Varies by state) 5. usually signed in presence of each other