Mortuary Law ch1 Flashcards
Empowers the state legislature to enact laws for the protection of the general welfare, health and safety
Police powers
Interprets the law and applies it to the facts of the case is deciding
Court
In many states it is the_______________that has the authority to settle controversies concerning dead bodies
Probate court
Consists of maxims, principles, and judicial decisions that have been passed down from hundreds of years of jurisprudence. Much of it has its roots in English and early colonial law, also fills up “gaps” in our legal system.
Common-law
Many aspects of funeral law are impacted by the
Common law
Dead body
The body of a human being deprived of life but not yet entirely disintegrated
The term “court” is synonymous with the term
Dead body
For a body to be legally dead or a corpse it must meet three conditions
It must be the body of a human being, it must be without life, and it must not be entirely disintegrated
When life ceases, which takes place when the heart stops beating and respiration ends
The definition of death stated by courts in 1950
For legal and medical purposes, and individual who has sustained irreversible cessation of all functioning of the brain, including the brainstem
Definition of death by courts in 1979
The remains of the cremated body, a disintegrated corpse or the bones of the skeleton do not constitute as a
Dead body
In early English law, it was established that the dead body was with in the exclusive control of the
Church
Survivors have _____-___________ rights in the dead body
Quasi-property
Most often referred to as a “bundle of rights”
Property
Include the right to possess, to use, to exclude, to profit, and to dispose
The ‘bundle of rights’ which have been associated with property
The most common method of disposition
Inground burial
If the body is at the home of the next of kin
Actual possession
If the body is at a hospital or mortuary
Constructive possession
The right to arrange the disposition is an __________ right
Exclusive
Agreement between a funeral director and another competent party of legal age where by the consumer purchases and the funeral director agrees to furnish merchandise and services
Funeral contract
The funeral contract may be______or________
Oral or written
The written contract is
- legally more sound
- explicit as to method of payment
- easier to prove in the case of default by the purchaser
- Proof of a valid contract
Provisions which are typically included in a standard funeral contract
- itemization
- cash transaction
- late payment charge or penalty charge
- Collection fees
- estate liability
- joint and several (individual) liability
- disclaimer of warranties
In____states, there is a mechanism that allows an individual to appoint an agent or representative to make all funeral and disposition instructions
34
An effective right of disposition statute needs to include several key components to address conflicts and uncertainties including
- missing relatives
- majority control
- waiver of uncooperative relatives
- homicide cases
Approximately _____ of the states have a disqualification provision tied to homicide
1/3
Three primary protections that funeral homes want to include any right of disposition statute
1) right to rely
2) The ability to recover costs
3) comprehensive immunity provisions
Involves provisions in the law which grants the funeral home the ability to rely upon the representations of a family member
The right to rely
States with comprehensive protections for funeral homes authorize the funeral home to recover Embalming and refrigeration costs which may be incurred as a result of the delay caused by a family dispute
Ability to recover costs
Protects a funeral home from criminal, civil, or disciplinary claims if they believe in good faith upon representations of family members that may lead approved to be untrue.
Comprehensive immunity provisions
The sources of the funeral director’s duties are
- statutory laws of the state
- requirements of the funeral contract
- The common law
Permits that the funeral director is required to obtain for the proper disposition of the dead
1) death certificate
2) burial permit
3) transit permit
The body must be refrigerated or embalmed ______hours from the time of death
48
Possible contractual breaches by the funeral director of the funeral contract
- negligent embalming
- negligent funeral directing
- safeguarding the body
- privacy
- defective merchandise
- transportation
- aftercare
If embalming falls short of standard care the funeral director will be liable for the damages of
Negligent embalming
The failure of the funeral director to perform the many duties involved in directing the funeral service
Negligent funeral directing
Grief counseling, support groups, or other grief facilitation activities sponsored by the funeral home
Aftercare
When there is a violation of funeral director’s duties with resulting damages a _______ has been committed
Tort
Two duties recognized by the law which impact directly on the funeral director
1) the duty not to interfere with the right of burial
2) the duty of exercising reasonable care to keep the funeral home premises or other places under control of the funeral director in a reasonably safe condition
The refusal to release the body by a funeral director who has prepared it for burial until he has been paid for his services
Wrongfully withholding the body
Cases where a funeral home misidentified the body and incorrectly interred the wrong one
Loss of the body
Embalming done without permission or unauthorized autopsies is considered a tort of
Mutilation of the body
The rules and principles that society has established for the handling and disposition of the dead
Funeral law
