Mortuary Law- Chapter 3 Flashcards
- Right of custody
- Right to control the funeral
- Right to choose disposition
- Funeral director with right to disposition
- Funeral Contract
Rights of Parties Undertaking Disposition
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.
In General
Would be empty and meaningless without a grant or certain specific rights necessary to effect disposition free from interference from others.
The paramount right to arrange the disposition of a dead body
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.
Dead Body
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.
Right to Custody
The person exercising this is granted the right to take possession and control of the body. The possession may be actual or constructive.
The Right of Disposition
Where the body is physically within his custody.
Actual Possession
Where the body is physically in the custody of another.
Constructive Possession
May be had only for the purpose of disposing of the dead body in a lawful manner.
Custody of a Dead Body
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.
Criminal Sanctions
Attaches from the moment of death and may be continued for a reasonable length of time.
Possession and control of the body
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.
Reasonableness of the Length of Time
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.
The Individual Undertaing Disposition
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.
Right to Arrange the Disposition
Extends even to services conducted in cemeteries.
The right to exclude others from the funeral
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.
Certain Condtions of the Next of Kin when Excluding Individuals from a Visitation or Funeral Service
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.
Right to Disposition
Primarily derived from two sources:
- Those rights which are granted and imposed by statute.
- Those arising from the funeral contract
The Lawful Rights of the Funeral Director Undertaking a Funeral
- 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).
Those Rights Which are Granted and Imposed by Statute
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.
Those Arising from the Funeral Contract
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
The Funeral Contract
It may be expressed or implied.
Oral Contract
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.
Example: Implied Oral Contract
The contact may be between the funeral home and the decedent’s estate, his family, and/or an unrelated third party.
Other Parties that could be in the Contract
