Mortuary Law Exam 1 Flashcards
Rules of civil conduct commanding what is right and prohibiting what is wrong
Blackstone’s definition of law
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
mortuary law
mortuary law is known as
Mortuary jurisprudence
Funeral Service Law
Funeral Law
Sources of law:
“The Pyramid of Law”
Stare decisis Case law Ordinances Administrative law Police power Statutory law/statutes Constitutional law Common law
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.
common law
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
Constitutional law
Particular law enacted by a legislative body.
Federal Government- U.S. Congress
State Government /State legislatures
Statutory law - statutes
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
Police power
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.
Administrative law
Appointed governmental body charged with implementing particular legislation:
Administrative agency
OSHA
Occupational Safety & Health Administration
FTC
Federal Trade Commission
TFSC
Texas Funeral Service Commission
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.
Ordinances
Court decisions that established precedent principles.
Determines the “constitutionality” of a statute, rule, or regulation.
Case law
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
Doctrine of stare decisis
State laws and regulations
Case law and stare decisis
Common law
Federal law
Sources of mortuary law
Principle regulators of the funeral service profession.
Based on a state’s “police power.”
Delegated to an administrative agency (TFSC)
State laws and regulations
Mortuary law often dictated by court decisions.
Doctrine of stare decisis.
Case law and stare decisis
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
Common law
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
Federal laws
Body of a human being (identified or unidentified)
Deprived of life
Not yet entirely disintegrated
Dead human body
Dead human body?
Dust of a long dead body
Dust of a long dead body is not classified as a dead human body
Dead human body?
Bones of a skeleton
Bones of a skeleton is not classified as a dead human body
Dead human body?
Partially dismembered body
Partially dismembered body is classified as a dead human body
antiquated term for a human body
corpse
Must meet all three of these conditions to be “legally” dead.
- body of human
- deprived of life
- not yet entirely disintegrated
State of complete and irreversible cessation of metabolic processes.
Leading ultimately to dissolution of the organs.
death
In 1950 court case- death was defined as the
cessation of circulation (heart) and respiration (lungs).
new legal/medical definition of death
“brain death”
Total and irreversible cessation of brain function.
As indicated by a flat EEG reading.
brain death
what does EEG stand for?
electroencephalogram
Measures electrical activity in the brain. “An individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem.”
EEG = electroencephalogram
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.
body parts
After removal of a body part; without unnecessary mutilation, Custody of the remainder of the body rests with
the person who otherwise has the right to control final disposition.
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.
No property theory (Ecclesiastical Theory)
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
Property theory
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.
Quasi-property theory
“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.”
“bundle of rights”
Dead human body is the _______ of the surviving family member with a __________________
quasi-property
“bundle of rights.”
What are the “bundle of rights?”
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.
Necessity of final disposition:
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
Methods of final disposition:
Burial (Interment) Entombment Cremation Burial at sea Anatomical donation
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.”)
Burial
Second most common form of disposition. Crypt Mausoleum Building dedicated for this purpose Individual or family structures
Entombment:
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.
cremation
TEXAS states must hold cremated remains ___ days before declaring them abandoned.
121
Disposition of cremains:
Inurnment
Buried in a cemetery
Scattered
When scattering cremains, where are the places we discussed in lecture?
Scattering cremains:
Scattering garden
Cemetery or
Open sea
requirements for scattering cremains open sea
Three nautical miles from shoreline. (6,080 ft. = nautical mile)
Must be reported to Environmental Protection Agency (EPA)
death and burial at sea is provided under ___________ to protect health and safety of crew and passengers.
Provided under Maritime Law.
Burial at sea- Death aboard a ship at sea.
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)
dead human body intended solely for scientific study and dissection
cadaver
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
Uniform Anatomical Gift Act
Community Standards for a decent burial
Protection of public health
Public morality and common decency
Respect for the dead
Considerations for final disposition
Whose wishes does the funeral director follow?-
Order of consideration
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.
Legal requirements for disposition of a dead human body.
statutes
Obligation
duty
Privilege
right
Primary duty of final disposition rest with the
householder
after householder, who then has duty of final disposition?
Surviving spouse
Next-of-kin
One who owns or controls real estate where death occurs.
His/her duty is to notify the proper authorities
householder
Widow or widower
NOT a blood relative
surviving spouse
Kin
One’s relatives collectively - Referring to blood relationship
next of kin
Next-of-kin (order)
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
Primary Duty of Burial rests
with the spouse, next of kin, etc
Secondary duty of final disposition:
Falls upon public authorities
State
Other governmental body or authority
Right to control final disposition:
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
Primary right of final disposition
Wishes of decedent Surviving spouse Next-of-kin Personal representative Guardian Volunteer Funeral Director
Wishes of decedent
Pre-need / if written
Will
Other document or declarations (How stated – SD politician, radio spot)
WRITTEN OR ORALLY
making funeral arrangements in advance with no payment
Pre-arranged
making funeral arrangements in advance with payment
Pre-paid
Instrument executed with required formality by a person making disposition of his/her property to take effect upon his/her death
will
Other documents or declarations:
Written instructions Oral instructions
important factors regarding wills
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).
Person who represents and settles the estate of the deceased person(s).
personal representative
Types of personal representatives:
Executor Administrator
Executrix Administratrix
Individual appointed by the will to carry out its provisions and settle the estate.
Executor and Executrix
Individual appointed by the probate court to settle an estate.
Administrator and Administratrix
died with a will
testate
died without leaving a will
intestate
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.
guardian
Anyone who agrees to assume the right of final disposition.
Friend
Neighbor
Co-worker
volunteer
Funeral director undertaking the funeral has lawful rights from two sources.
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.
FUNERAL DIRECTOR’S DUTY IN CASE OF CONFLICT
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
Laws and licensing regulations
Authorize and empower the funeral director to practice the profession.
Related to all actions required for the funeral process.
Statutes, ordinances, and regulations
Between the funeral director and the individual with the right of disposition.
funeral contract
Note
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
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
custody of the body
“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)
“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)
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)
actual custody
(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
constructive custody
Rights of the party having priority for disposition
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
Right to control all matters relating to funeral arrangements
Superintend the funeral
rights to superintend the funeral
- To choose or not choose a funeral director or funeral home
- type of service
- type of funeral merchandise
- method of disposition
p. 10
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.
trustee
The funeral director should
Remain Neutral
Conduct the arrangement conference in a professional and dignified manner.
Utilize effective communication skills.
