Mortuary Law Exam 2 Flashcards
Condition of being actually or potentially subject to an obligation; condition of being responsible for an expense.
Definition of “Black Law?”
Funeral Contract Decedent's Estate Common Law Volunteer Public Authorities
Types of Liabilities for Funeral Expenses:
Agreement between two or more competent persons which is enforceable by law.
Contract
Offer
Acceptance
Consideration
Elements of a contract:
Expression of willingness to enter into a contractual agreement.
Offer
Agreement to an offer resulting in a contract.
Acceptance
What the promisor demands and receives as the price for a promise.
Consideration
Offeror
Offeree
Parties of a contract:
Party who initiates or makes an offer.
Offeror
Person to whom an offer is made.
Offeree
Express
Implied
Quasi
Types of contracts:
Parties express their intentions at time of agreement; can be oral, written, at need or prefunded.
Express Contract
Oral or Written
At Need
Pre-Funded
Types of Express Contracts:
Contract terms are implied by acts or conduct of the parties.
Implied Contract
A First Call is an Implied Contract becomes an express contract.
An example of an Implied Contract:
Fictional contract applied by a court for a person unable to contract for him/herself.
Quasi Contract
Property of a deceased person.
Estate:
Real Property
Personal Property
Estate consists of:
land or anything attached to it.
Real Property:
tangible or intangible property; includes: personal belongings, furniture, auto, jewelry, money, stocks, bonds, and insurance policies.
Personal Property:
Condition of leaving a will at time death.
Testate:
the state or condition of dying without having made a will.
Intestate
Solvent estate:
Assets exceed the liabilities (more cash than expenses)
Size and solvency of the estate. Status in life Reasonableness of the charges Funeral directors knowledge of the decedent's financial condition Local and ethnic customs
Limitations of the estate:
liabilities exceed the assets (less cash than expenses).
Estate is unable to pay debts.
Insolvent estate:
Decedent’s Estate
The funeral bill is a charge against the ________________.
Station in life Lifestyle Standard of living Social Economic Religious
What is the criteria for courts consideration when determining reasonableness of funeral charges:
Size and solvency of the estate Right of creditors to collect payment Station in life of deceased Decedent's religious faith Decedent's fraternal membership Local and contemporary customs
Reasonableness of the charges is based on the following:
- Decedent’s financial condition
- Solvency or insolvency of estate
- Related reasonableness of charges.
Funeral Director’s Knowledge should include:
- What types of funeral arrangements are customary for the area?
- Traditional vs. non-traditional
- Related to station in life.
Local and Ethical Customs are:
Embalming Professional services Use of facities Casket Outer burial container Clothing Clergy Transportation Cemetery or cremation Headstone or monument Flowers Newspaper notice
What are some allowable cost items of a funeral recognized by courts:
Customs Religion Fraternal requirements Legal requirements Cemetery requirements
What may affect the cost of a funeral?
The funeral bill
Which bill is typically the first claim to be paid against an estate?
Spouse for spouse
Parents for minor/dependent children
Parents are not liable for the expenses of adult child
According to Common Law who is responsible for paying the funeral bill of these types of relatives:
Volunteer
Public Authorities
Who else pays for the decedents funeral bill:
Individual(s) who volunteer to pay the funeral bill.
Volunteer(s)
State or County government who pay the funeral bill.
Public Authorities
A wrongful act committed by one person against another person and/or their property.
What is a Tort?
Invasion of rights
Obstruction of funeral arrangements
Mutilation
Wrongful witholding
Torts include:
- Not to interfere with the right of burial.
2. To exercise reasonable care in keeping the funeral home premises in safe condition.
What are the 2 duties recognized by law that impact the funeral director?
- Unauthorized embalming
- Unauthorized photos of deceased.
- Burial in absence of the next of kin
- Right to privacy
- Failure to comply with wishes.
Examples of Invasion of Rights:
Except in certain cases, embalming is not required by law, embalming may be necessary, however if you select certain funeral arrangements, such as a viewing. If you do not want embalming, you usually have the right to choose an arrangement which does not require you to pay for embalming, such as direct cremation or immediate burial.
FTC Funeral Rule States what about embalming?
If you tried to reach next of kin for 3 or more hours, you have no refrigeration, and no reason to deem it would be unwanted.
When is embalming required in Texas?
Obtain express written authorization.
Before embalming you must first do what?
- Hospital or other institution wrongfully holding or refusing to release remains. (beyond the necessary to complete autopsy, paperwork, etc.)
- Public officials not releasing a body within a reasonable period of time. (when body is held for forensic and/or legal purposes)
- By the funeral director, especially due to non-payment of the funeral bill.
What are some examples of obstruction of funeral arrangements:
Altering of an object or dead human body from its original condition.
Define Mutilation
True
Based on definition, embalming is a form of mutilation.
True or False
postmortem exam of organs to determine cause of death (gross anatomy/inspection).
What is an autopsy?
Postmortem exam of tissue to determine cause of death.
What is dissection?
- Contractural
- To determine the cause of death
- Payment of insurance benefits (life/health/accidental death)
- Right of public official or health officer.
Exceptions of Types of Unauthorized Autopsy’s:
Coroner
Medical Examiner (ME)
Justice of the Peace (JP)
Who are the public officials that have the duty to investigate the cause of death or question of accident, suicide or homicide. Without a physician in attendance?
A body is not property
Lien attachments and replevin do NOT apply to dead human body.
Can not refuse to release a body on demand.
What is wrongful withholding or The Property Theory?
a claim or charge against property of payment of some debt.
What is a lien?
An action to recover possession of personal property.
What is a replevin?
Failure to exercise ordinary care. Lack of due care. Exercised by a wrongdoer who has not acted as a reasonable person would.
What is negligence?
Failure to do something which a reasonable prudent person would do under ordinary circumstances.
Omission
Doing something which a reasonable and prudent person would not do under ordinary circumstances.
Commission
Negligent Embalming
Negligent Funeral Directing
Negligent Lab
Types of negligent acts:
Statements and funeral contracts.
Duties and obligations originate from 2 sources, what are they?
No
Are volunteer drivers under direct control of the funeral director?
Agent drivers
Funeral home employees
The Funeral Director is liable for:
automotive equipment for the hire
What is the Livery or Rolling Stock?
Place of business used in the care and prep and final disposition of dead human bodies.
Define the Funeral Establishment
Specific Premises: Funeral home Church Cemetery Other facilities where funeral rites are held
Premises Liability include:
Not invited
Very little degree of care
Trespasser
Invitee
Sales Reps
Social Guest
Those attending visitation or funeral service
Invitee
Mental suffering resulting from grief wounded pride, service disappointment, indignation, shame, public humilitation, despair, etx.
What is Mental Anguish?
physical injury and physical impact
Mental anguish historically required__________ and __________to be recognized by courts to award damages.
committed with the intention or purpose of causing harm.
Intentional Act
Committed with complete disregard for proper conduct.
Outrageous Act
Committed with complete disregard for acting as a prudent person would under ordinary circumstances.
Gross negligent act
Licensed Funeral Director
Only a ____________is qualified to provide professional services to the family.
