Mortuary Law- Chapter 3

Question 1

• Right of custody
• Right to control the funeral
• Right to choose disposition
• Funeral director with right to disposition
• Funeral Contract

Answer 1

Rights of Parties Undertaking Disposition

Question 2

The party who legally undertakes to dispose of a dead body is vested with certain rights and charged with certain duties:

• The rights and duties granted and imposed by law for the protection of the decedent’s survivors and for the protection of the public.

Answer 2

In General

Question 3

Would be empty and meaningless without a grant or certain specific rights necessary to effect disposition free from interference from others.

Answer 3

The paramount right to arrange the disposition of a dead body

Question 4

A ___ ____ is not property in the ordinary sense of the word, but is a tangible object over which domination is granted to the party undertaking the disposition.

Answer 4

Dead Body

Question 5

This right is not absolute.

• A limited right, given for a specific purpose, and subject to revocation if the party possessing it does not exercise it or utilize it for a proper purpose.

Answer 5

Right to Custody

Question 6

The person exercising this is granted the right to take possession and control of the body. The possession may be actual or constructive.

Answer 6

The Right of Disposition

Question 7

Where the body is physically within his custody.

Answer 7

Actual Possession

Question 8

Where the body is physically in the custody of another.

Answer 8

Constructive Possession

Question 9

May be had only for the purpose of disposing of the dead body in a lawful manner.

Answer 9

Custody of a Dead Body

Question 10

Failure to dispose of the body in a lawful manner not only takes away an individual’s right of custody, but can also lead to ____ ____ against such individual.

Answer 10

Criminal Sanctions

Question 11

Attaches from the moment of death and may be continued for a reasonable length of time.

Answer 11

Possession and control of the body

Question 12

During which a body may be held pending final disposition is to be determined by the circumstances of the case.

• In the usual case, several days may suffice.
• It may be necessary to withhold disposition for a longer time and such delay is not unwarranted where the cause is justifible.
• In a case of death by contagious disease, the law may stipulate the maximum time during which the body may be held.- The rule of reason is abrogated by the statutory provisions.

Answer 12

Reasonableness of the Length of Time

Question 13

Has the power to exercise control over all matters relating to the funeral.

• Free to choose whether to use a funeral home
• Which funeral home to use
• What type of service, if any, will be held
• What funeral merchandise will be purchased
• What the eventual method of disposition will be.
• May arrange the time and place of burial convenient to the individual and disregard the feelings of others.
• Subject only to the regulations and rules of the crematory and cemetery.

Answer 13

The Individual Undertaing Disposition

Question 14

This is an exclusive right. If an individual has the paramount right of disposition, he or she is not compelled by law to share it with others. This being the case, the individual may elect to hold a private funeral and invite or exclude those whom he or she chooses.

Answer 14

Right to Arrange the Disposition

Question 15

Extends even to services conducted in cemeteries.

Answer 15

The right to exclude others from the funeral

Question 16

If the next of kin wishes to exclude others form a visitation or funeral, the funeral director is advised to impose certain conditions on the next of kin:

• If there is an obituary, it should note that the funeral services are private. No announcement of the time or place of the funeral ceremony should be made.
• Have the next of kin sign an indemnification form to cover any personal injury or property damage in the event the exclusion leads to violence.
• If a disruption by excluded family members is possible, the funeral director should require the next of kin to hire a security service to exclude uninvited individuals from services.

Answer 16

Certain Condtions of the Next of Kin when Excluding Individuals from a Visitation or Funeral Service

Question 17

The paramount right to take custody of the body includes the right to choose the method of disposition. The person found to have the paramount right has unfettered discretion in selecting if the decedent will be buried, cremated, or disposed of by some other method.

Answer 17

Right to Disposition

Question 18

Primarily derived from two sources:

1. Those rights which are granted and imposed by statute.
2. Those arising from the funeral contract

Answer 18

The Lawful Rights of the Funeral Director Undertaking a Funeral

Question 19

• Those rights defined and provided by the statutes, ordinances and regulations of the jurisdiction where the funeral director practices.
• The laws and licensing regulations which authorize the funeral director to practice his profession.
• Empower him to take those actions which are incident to the funeral (Transporting the dead, embalming, conducting funeral services, and arranging disposition in crematories and cemeteries).

Answer 19

Those Rights Which are Granted and Imposed by Statute

Question 20

Arises from the contract entered into between the funeral director and te individual with the paramount 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.

Answer 20

Those Arising from the Funeral Contract

Question 21

An agreement between a funeral director and another competent party of legal age, whereby the consumer purchases and the funeral director agrees to furnish merchandise and services.

• May be oral or written

Answer 21

The Funeral Contract

Question 22

It may be expressed or implied.

Answer 22

Oral Contract

Question 23

When an individual dies in a nursing home and the family has left instructions to call a particular funeral home, that funeral home has an implied contract with that family to carry out the removal of the body.

Answer 23

Example: Implied Oral Contract

Question 24

The contact may be between the funeral home and the decedent’s estate, his family, and/or an unrelated third party.

Answer 24

Other Parties that could be in the Contract

Question 25

Generally responsible for the decedent’s funeral bill, it is an implied party to the contract.

• Funeral directors will often have the next of kin or surviving spouse execute the funeral contract also to show that the funeral home has authority to conduct the contracted services and to provide another source of payment in the event that this is insolvent.

Answer 25

Estate

Question 26

Funeral directors will often have the next of kin or surviving spouse execute the funeral contract also to show that the funeral home has authority to conduct the contracted services and to provide another source of payment in the event that the estate is insolvent.

Answer 26

Family

Question 27

May include employers, the armed forces, or government welfare agencies.

Answer 27

Third Parties Unrelated to the Deceased

Question 28

• FTC Funeral Rule
• Truth-in-Lending Provisions
• State laws and regulations

Answer 28

Disclosures

Question 29

1. The price of the funeral and a list of all services and merchandise included in the funeral.
2. The price of each supplemental item of service or merchandise.
3. A list of the cash advances made by the funeral director on behalf of the person making the funeral arrangements
4. The method of payment.

Answer 29

Generally, The Disclosures are as Follows:

Question 30

In states with these requirements, the funeral director may not simply enter into an oral funeral contract with the other party, but is required to give a written memorandum of the transaction.

Answer 30

Disclosure Requirements

Question 31

Intended to be in the best interest of the consumer, but are also beneficial to the funeral director- the written contract is legally more sound, is explicit as to method or payment, is easier to prove in the case of default by the purchaser, and is proof of a valid contract.

Answer 31

Disclosures

Question 32

The insure that the contract is enforceable and is in accordance with the state law prescribing certain disclosures and proscribing certain practices, the funeral director should use a contract form that has been reviewed by ___ ___.

Answer 32

Legal Counsel

Question 33

• Itemization
• Cash Transaction
• Late payment charge or penalty charge
• Collection fees
• Estate liability
• Joint and several (individual) liability
• Disclaimer or warranties

Answer 33

Contract Terminology

Question 34

The FTC funeral rule requires this for the components of the funeral services (i.e. the goods and services purchased). Some states also have statutes or rules requiring price________ of funeral contracts. Therefore, the majority of the contract will spell out the goods and services purchased by the consumer.

Answer 34

Itemization

Question 35

Most funeral homes stipulate in the contract that the sale is a ____ ___________and not a credit transaction. Credit transactions involve many disclosures, which need not be made if the funeral home does not qualify as a creditor as defined in the Truth-in-Lending Provisions.

Answer 35

Cash Transaction

Question 36

A funeral home may charge a ___ ______ ____ or ____ _____ for unanticipated late payment. If this charge is imposed, state law should be reviewed to determine if any ceiling to the penalty applies. An example of the penalty clause is a follows: “This is a cash transaction due in full on (due date). A penalty of __% per month (___% per annum) on the unpaid balance for the unanticipated late payment will be charged effective (date).”

Answer 36

Late Payment Charge or Penalty Charge

Question 37

A contract may stipulate that in the event of default, the undersigned (person or persons making the funeral arrangements) agree to pay all costs of collection including reasonable attorney’s fees. State laws should be consulted to insure that a collection provision is permissible.

Answer 37

Collection Fees

Question 38

In many states, the primary liability for payment of a funeral bill is the estate of the decedent. A funeral contract should include a statement that the person signing the contract is liable for payment of the funeral contract in addition to the liability imposed by law upon the estate. By doing this, the consumer signing the contract will be held responsible for payment in the event the state is insolvent. Also, funeral homes may charge a late payment fee as stipulated in the contract even though the estate is liable for the payment of the contract. This charge could be substantial because many times payment is held up for several months on account of the administration of the estate.

Answer 38

Estate Liability

Question 39

Directly above the signature line designated for the signature(s) of the person(s) making the funeral arrangements, the funeral home should include a statement similar to the one that follows: “I/we the undersigned, severally and jointy, hereby authorize the above funeral contract and promise to make payment thereof.” With this statement the funeral home is holding all persons signing the contract jointly and individually liable for the payment of the funeral bill.

Answer 39

Joint and Several (Individual) Liability

Question 40

A funeral contract may include a disclaimer of the implied warranties of merchantability and fitness for a particular purpose. These implied warranties basically mean that the casket and other goods sold will fulfill their intended uses.

Answer 40

Disclaimer of Warranties

Question 41

To avoid liability for implied warranties, funeral directors may ______ the warranties. Prior to ____ing these arranties, funeral directors should consult state law to ensure that such a disclaimer is permissible.

Answer 41

Disclaim

Question 42

• District of Columbia
• Alabama
• Connecticut
• Kansas
• Maine
• Maryland
• Massachusetts
• Minnesota
• Mississippi
• New Hampshire
• Vermont
• Washington
• West Virginia

Answer 42

Not Lawful to Disclaim Warranties in these States

Question 43

Funeral directors should ensure that consumers understand that the warranties are made by the ______ and not by the funeral home.

Answer 43

Manufacturer