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3rd QUARTER > Mortuary Law Exam 1 > Flashcards

Mortuary Law Exam 1 Flashcards

1
Q

Rules of civil conduct commanding what is right and prohibiting what is wrong

A

Blackstone’s definition of law

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2
Q

 Branch of law which relates to matters concerned with disposal of the dead.
 Rules and principles that society has established for handling and disposition of the dead

A

mortuary law

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3
Q

mortuary law is known as

A

 Mortuary jurisprudence
 Funeral Service Law
 Funeral Law

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4
Q

Sources of law:

“The Pyramid of Law”

A 
	Stare decisis
	Case law
	Ordinances
	Administrative law
	Police power
	Statutory law/statutes
	Constitutional law
	Common law
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5
Q

 Non-legislated principles and rules of action predicated upon usage and customs.
 Rooted in English and colonial law.
 Customs which have become recognized by the courts as binding on the community (Business law definition)
 Developed naturally as societies evolved from small family units to groups, tribes, villages, etc. which met the basic and common need for survival.
 Based on human experience and the good for all members of society.

A

common law

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6
Q

 Written document containing fundamental principles of government detailing the powers and duties of a government.
 Guarantees certain rights of the people
 These two principles constitute the “Law of the land” – the needs of the basic / common need for survival; embodying both Federal and individual state constitutions

A

Constitutional law

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7
Q

Particular law enacted by a legislative body.
Federal Government- U.S. Congress
State Government /State legislatures

A

Statutory law - statutes

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8
Q

Inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens.
EXAMPLES in Mort. Law – Licensure requirements / Health Standards / Bus. Operation

A

Police power

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9
Q

Body of law created by federal and state administrative agencies to implements their power and duties in the form of rules, regulations, orders, and decisions.

A

Administrative law

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10
Q

Appointed governmental body charged with implementing particular legislation:

A

Administrative agency

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11
Q

OSHA

A

Occupational Safety & Health Administration

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12
Q

FTC

A

Federal Trade Commission

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13
Q

TFSC

A

Texas Funeral Service Commission

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14
Q

Law passed by a municipal governing body, village, town, city.
Related to matters not already covered by federal or state law.
Municipal Laws – pertaining to
Zoning / Commercial vs. Residential
Building Codes – Electrical, Plumbing; etc.
Safety Codes – Exits signs, Emergency Evacuation Routes, etc.

A

Ordinances

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15
Q

Court decisions that established precedent principles.

Determines the “constitutionality” of a statute, rule, or regulation.

A

Case law

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16
Q 
When an issue is resolved by a court
	Establishes a “precedent” or “principle”
	Controls future court decisions
	“Like cases” decided in “like manner”
	Extremely important in mortuary law
A

Doctrine of stare decisis

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17
Q

State laws and regulations
Case law and stare decisis
Common law
Federal law

A

Sources of mortuary law

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18
Q

Principle regulators of the funeral service profession.
Based on a state’s “police power.”
Delegated to an administrative agency (TFSC)

A

State laws and regulations

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19
Q

Mortuary law often dictated by court decisions.

Doctrine of stare decisis.

A

Case law and stare decisis

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20
Q

Applied to matters related to mortuary law.
Property rights in a dead human body.
Liability for payment of funeral expenses.
General Rule of descent with regards to rights & duty of disposition – spouse, children, etc

A

Common law

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21
Q

Federal Trade Commission to protect consumers / prevent monopolies
Occupational Safety and Health Administration – concerned mostly with refineries / petroleum industries
American with Disabilities Act – make accessible for those who are disabled.
Federal Wage and Hour

A

Federal laws

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22
Q

Body of a human being (identified or unidentified)
Deprived of life
Not yet entirely disintegrated

A

Dead human body

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23
Q

Dead human body?

Dust of a long dead body

A

Dust of a long dead body is not classified as a dead human body

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24
Q

Dead human body?

Bones of a skeleton

A

Bones of a skeleton is not classified as a dead human body

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25
Q

Dead human body?

Partially dismembered body

A

Partially dismembered body is classified as a dead human body

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26
Q

antiquated term for a human body

A

corpse

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27
Q

Must meet all three of these conditions to be “legally” dead.

A
  1. body of human
  2. deprived of life
  3. not yet entirely disintegrated
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28
Q

State of complete and irreversible cessation of metabolic processes.
Leading ultimately to dissolution of the organs.

A

death

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29
Q

In 1950 court case- death was defined as the

A

cessation of circulation (heart) and respiration (lungs).

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30
Q

new legal/medical definition of death

A

“brain death”

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31
Q

Total and irreversible cessation of brain function.

As indicated by a flat EEG reading.

A

brain death

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32
Q

what does EEG stand for?

A

electroencephalogram

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33
Q

Measures electrical activity in the brain. “An individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem.”

A

EEG = electroencephalogram

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34
Q

defined by the Uniform Anatomical Gift Act (UAGA) as organs, tissues, eyes, bone, arteries, blood, other fluids, and any other portion of a human body for transplantation.

A

body parts

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35
Q

After removal of a body part; without unnecessary mutilation, Custody of the remainder of the body rests with

A

the person who otherwise has the right to control final disposition.

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36
Q

Based on early English law.
Dead human body within exclusive control of the church.
No individual had property rights in a dead body.
Therefore, dead body is the property of no one.
No “property” in a dead body.

A

No property theory (Ecclesiastical Theory)

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37
Q

As societies changed laws became more “secular” or non-religious. Rather than “ecclesiastical” or church based. Dead body now seen as “property” of the surviving family member.
Note: no longer an accepted theory

A

Property theory

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38
Q

Currently accepted theory of the legal status of a dead human body.
Rights are the next of kin’s and/or the spouse
Rights associated with the body are as if it were “property” for the purpose of final disposition only.

A

Quasi-property theory

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39
Q

“Property is often conceptualized as a ___________

which have been associated with property include the right to possess, to use, to exclude, to profit, and to dispose.”

A

“bundle of rights”

40
Q

Dead human body is the _______ of the surviving family member with a __________________

A

quasi-property

“bundle of rights.”

41
Q

What are the “bundle of rights?”

A

Right to take the body for purpose of final disposition.
Right to allow body parts to be used within confines of the law.
Right to exclude others from possession of the body.
Right to dispose of the body.

42
Q

Necessity of final disposition:

A

Police power of the government requires proper disposition of a dead human body.
- Promote and protect the public health.
- Public morality for a “decent” burial.
Necessitates the disposition of the dead by regulated methods

43
Q

Methods of final disposition:

A 
Burial (Interment)		
Entombment		
Cremation	
Burial at sea		
Anatomical donation
44
Q

Most common form of disposition.
Lawful in property dedicated as a public or private cemetery or private property in some rural areas. (Land dedicated as a “family cemetery.”)

A

Burial

45
Q 
Second most common form of disposition.
	Crypt
	Mausoleum
	Building dedicated for this purpose
	Individual or family structures
A

Entombment:

46
Q

Legal if crematory is properly licensed.
Compliance with state and local laws.
Due Diligence (3rd Party Crematories) ??
Not “technically” a method of disposition.
But a step in a mode of final disposition.

A

cremation

47
Q

TEXAS states must hold cremated remains ___ days before declaring them abandoned.

A

121

48
Q

Disposition of cremains:

A

Inurnment
Buried in a cemetery
Scattered

49
Q

When scattering cremains, where are the places we discussed in lecture?

A

Scattering cremains:
Scattering garden
Cemetery or

Open sea

50
Q

requirements for scattering cremains open sea

A

Three nautical miles from shoreline. (6,080 ft. = nautical mile)
Must be reported to Environmental Protection Agency (EPA)

51
Q

death and burial at sea is provided under ___________ to protect health and safety of crew and passengers.

A

Provided under Maritime Law.

52
Q

Burial at sea- Death aboard a ship at sea.

A

At least three nautical miles from the shoreline.
Body must be weighted.
Placed in a special shroud.
Or weighted casket.
With holes (20) drilled in casket shell.
Casket banded (6) to prevent opening.
Remains must sink rapidly and permanently to ocean floor.
Notify Environmental Protection Agency (EPA)

53
Q

dead human body intended solely for scientific study and dissection

A

cadaver

54
Q

Law permitting a person of legal age and sound mind to give all or any part of his/her body.
Takes effect upon his/her death or gives the right to another

A

Uniform Anatomical Gift Act

55
Q

Community Standards for a decent burial

A

Protection of public health
Public morality and common decency
Respect for the dead

56
Q

Considerations for final disposition
Whose wishes does the funeral director follow?-

Order of consideration

A

Wishes of decedent
Verbal, Written instructions, Pre-need/pre-paid funeral arrangements
Wishes of survivors (Individual with paramount right of disposition.)
Spouse / Immediate family member / “Next-of-kin”
711.002 Health Code
Public interest
Protect public health
Honor public morality and common decency.

57
Q

Legal requirements for disposition of a dead human body.

A

statutes

58
Q

Obligation

A

duty

59
Q

Privilege

A

right

60
Q

Primary duty of final disposition rest with the

A

householder

61
Q

after householder, who then has duty of final disposition?

A

Surviving spouse

Next-of-kin

62
Q

One who owns or controls real estate where death occurs.

His/her duty is to notify the proper authorities

A

householder

63
Q

Widow or widower

NOT a blood relative

A

surviving spouse

64
Q

Kin

One’s relatives collectively - Referring to blood relationship

A

next of kin

65
Q

Next-of-kin (order)

A 
Children of proper age
	Parent(s)
	Sibling(s)
	“More distant kin”
		Aunts, uncles, cousins, etc.
	Based on general rule of priority
	Statute of descent and distribution
	Well-recognized order
	Not an “iron-clad rule” in all states.  NOT SET IN STONE
66
Q

Primary Duty of Burial rests

A

with the spouse, next of kin, etc

67
Q

Secondary duty of final disposition:

A

Falls upon public authorities
State
Other governmental body or authority

68
Q

Right to control final disposition:

A

Right – privilege / Quasi not property in the truest sense if ignored, someone else steps forward
Primary right of final disposition
Secondary right of final disposition
Possession & control of the body attaches at the MOMENT OF DEATH – family has control

69
Q

Primary right of final disposition

A 
Wishes of decedent
	Surviving spouse
	Next-of-kin
	Personal representative
	Guardian
	Volunteer
	Funeral Director
70
Q

Wishes of decedent

A

Pre-need / if written
Will
Other document or declarations (How stated – SD politician, radio spot)
WRITTEN OR ORALLY

71
Q

making funeral arrangements in advance with no payment

A

Pre-arranged

72
Q

making funeral arrangements in advance with payment

A

Pre-paid

73
Q

Instrument executed with required formality by a person making disposition of his/her property to take effect upon his/her death

A

will

74
Q

Other documents or declarations:

A

Written instructions Oral instructions

75
Q

important factors regarding wills

A

Decedent’s mental capacity
Proximity of expression of preference to time of death.
“If the preference was expressed in close proximity to death, courts will give greater weight than if preference is made years prior to death” (page 19 textbook).

76
Q

Person who represents and settles the estate of the deceased person(s).

A

personal representative

77
Q

Types of personal representatives:

A

Executor Administrator

Executrix Administratrix

78
Q

Individual appointed by the will to carry out its provisions and settle the estate.

A

Executor and Executrix

79
Q

Individual appointed by the probate court to settle an estate.

A

Administrator and Administratrix

80
Q

died with a will

A

testate

81
Q

died without leaving a will

A

intestate

82
Q

Judicial appointment (appointed by the courts) of a person to administer the affairs of another person who is incompetent by virtue of age or legal disability prior to decedent’s death.

A

guardian

83
Q

Anyone who agrees to assume the right of final disposition.
Friend
Neighbor
Co-worker

A

volunteer

84
Q

Funeral director undertaking the funeral has lawful rights from two sources.

A

Those granted and imposed by statutes, ordinances, and regulations.
- Licensing regulations allowing the FD to practice his/her profession
Those arising from the funeral contract.
- Rights authorized by the person with paramount right of disposition.

85
Q

FUNERAL DIRECTOR’S DUTY IN CASE OF CONFLICT

A

Hold body until proper party authorizes its disposition
Should not decide or attempt to influence the decision
Should inform the family no action will be taken until parties come to a settlement
Or until courts decide
Above all remain neutral

86
Q

Laws and licensing regulations
Authorize and empower the funeral director to practice the profession.
Related to all actions required for the funeral process.

A

Statutes, ordinances, and regulations

87
Q

Between the funeral director and the individual with the right of disposition.

A

funeral contract

88
Q

Note

A

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

89
Q

Right to take possession and control of the body.
Related to person with right of disposition.
Granted the right take possession and control of the body
Related to “quasi-property” theory

A

custody of the body

90
Q

“A dead body is not property in the ordinary sense of the word, but it is a tangible object over which dominion is granted to the party undertaking the disposition.” (Page 9)

A

“Quasi-property theory”

	“However, that right of custody is not absolute.  Rather, it is a limited 			right, given for a specific purpose, and subject to revocation (revoke/rescind) if the party 		possessing it does not utilize it for a proper purpose.”  (Page 9)
91
Q

Physical possession of the dead human body.
Occurs only when the body is located at the home of the individual with the right
of final disposition. (Ex: home under hospice care)

A

actual custody

92
Q

(happens at the instant of death)
Having authority to control final disposition
Although another party has physical possession, i.e. nursing home, hospital
Even though the funeral home has physical possession of the body
Spouse or next-of-kin has the right to control final disposition
“Actual custody” becomes this

A

constructive custody

93
Q

Rights of the party having priority for disposition

A

Custody of the dead body
Ability to convey (transfer) custody to the funeral director
Superintend the funeral
- Do that which is necessary to effect final disposition
Act as a trustee for all survivors

94
Q

Right to control all matters relating to funeral arrangements

A

Superintend the funeral

95
Q

rights to superintend the funeral

A
  • To choose or not choose a funeral director or funeral home
  • type of service
  • type of funeral merchandise
  • method of disposition
    p. 10
96
Q

One who holds a position of trust to a beneficiary. In funeral arrangements, the person who has the right to control the funeral does so on behalf of all survivors.

typically considers the wishes and desires of other survivors.
But is not legally obligated to do so

This is true with
Survivor disputes
Effects of divorce, separations, and estrangement’s.
All more common in today’s society.

A

trustee

97
Q

The funeral director should

A

Remain Neutral
Conduct the arrangement conference in a professional and dignified manner.
Utilize effective communication skills.

3rd QUARTER (20 decks)

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