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Trakesha's 3rd Quarter > Mortuary Law Exam 2 > Flashcards

Mortuary Law Exam 2 Flashcards

1
Q

obligation according to law; responsible

A

liability

Webster’s Dictionary

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2
Q

condition of being actually or potentially subject to an obligation; condition of being responsible for an expense

A

liability

Blackstone’s Law Dictionary

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3
Q

Agreement between two or more competent persons which is enforceable by law

A

Contract

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4
Q

Elements of a contract

A

Offer
Acceptance
Consideration

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5
Q

Expression of willingness to enter into a contractual agreement. (Funeral Home)

A

Offer

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6
Q

Agreement to an offer resulting in a contract. (Family)

A

Acceptance

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7
Q

What the promisor demands and receives as the price for a promise.
How one will pay cash, check, money order, property, etc.

A

Consideration

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8
Q

Parties to a contract

A

Offeror

Offeree

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9
Q

party who initiates or makes an offer.

A

Offeror (FH) -

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10
Q

person to whom an offer is made.

A

Offeree (Family accepts or rejects) -

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11
Q

Types of contracts

A

Express
Implied
Quasi

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12
Q

Parties express their intentions at the time of the agreement. Oral or written
Funeral contract should be in writing
Examples: At need funeral Prefunded funeral (also referred to as Pre-Financed)

A

Express contract

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13
Q

Contract terms are implied by acts or conduct of the parties.
Example
First call
This type of contract becomes an express contract.

The person contracting is not necessarily the one responsible for bill
Doing so on behalf of the estate

A

Implied contract

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14
Q

Fictional contract applied by a court for a person who is unable to contract for him/herself.
Raises an obligation in law where, in fact, the parties made no promises, but imposes liability on injured party
Example
Emergency medical care, death, etc.

A

Quasi contract

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15
Q

Land

Anything attached to land

A

Real property

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16
Q

Tangible or intangible property

Person effects		Jewelry
Furniture			Money
Automobiles		Stocks/bonds
A

Personal property

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17
Q

The condition of leaving a WILL at time of death, may or may not provide for funeral expenses.

A

• Testate

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18
Q

The state or condition of dying without having made a will, NO WILL.

A

• Intestate

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19
Q

(NOT able to meet debits)
Liabilities exceed the assets
Estate is unable to pay debts of the decedent or the estate is unable to pay the debt/bills of the estate

A

Insolvent estate

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20
Q

Amount of money available to pay funeral expenses.
Are the funeral expenses proportional to the size of the estate?
Related to “solvency”

A

Size of the estate

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21
Q

(One can meet its debits)

A

Solvency of the estate

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22
Q

Assets exceeds the liabilities / more cash than expenses – bills.

A

Solvent estate

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23
Q

Liabilities exceed the assets, less cash than expenses – bills.

A

Insolvent Estate

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24
Q

**

A

“As a rule, the estate is primarily responsible to pay the reasonable and necessary expenses for disposing of the body. If the estate has property, the funeral director may look to it for payment of the funeral bill. The funeral bill is not a debt of the decedent but is a charge against the estate and must, at least in part, be paid before any debts left by the decedent are met. The amount of the funeral bill which receives this preferential treatment depends upon state law.”

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25
Q

Courts consideration when determining reasonableness of charges:

A

Status in life

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26
Q

Status in life

Standard of living		
Religious
A

“Station in life”

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27
Q

Status in life

Economic
Social
A

“Lifestyle”

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28
Q

Reasonableness of the charges

A 
Size and solvency of the estate
	Right of creditors to collect payment
	Station in life of the deceased
	Decedent’s religious faith
	Decedent’s fraternal memberships
	Local and contemporary customs
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29
Q

Funeral director’s knowledge

A

Of the decedent’s financial conditions
Solvency or insolvency of the estate
Related to reasonableness of the charges

30
Q

Local and ethnic customs

A

What type of funeral arrangements are “customary” for the area?
“Traditional” vs. “non-traditional”
Related to station in life

31
Q

FILING OF CLAIMS

Allowable cost items of a funeral
Recognized by courts

Includes but not limited to -

A 
Embalming		Professional services
Use of facilities		Casket 
Clothing			Transportation
Cemetery or cremation costs	
Headstone or monument
Flowers			Newspaper notices
Outer burial container
32
Q

FILING OF CLAIMS

Allowable cost items of a funeral
Recognized by courts
may be affected by

A 
Custom			
Religion
Fraternal requirements	
Legal requirements
Cemetery requirements
33
Q

Priority of claims

A

Funeral bill typically the first claim against and estate that will be paid.
Charges must be “reasonable”
Amount may be dictated by state law.
“Allowable” vs. “preferential”

34
Q

Wrongful act committed by one person against another person.

And/or their property.

A

tort

35
Q

Torts include -

A

Invasion of rights.
Obstruction of funeral arrangements.
Mutilation.
Wrongful withholding.

36
Q

Two duties recognized by law directly impact the funeral director.

A
  1. Not to interfere with the right of burial.

2. Exercise reasonable care in keeping the funeral home premises in a reasonably safe condition.

37
Q

Invasion of rights:

A 
Unauthorized embalming - When is embalming required?
Unauthorized photos of deceased	
Burial in the absence of the Next of Kin
Right to privacy & confidentiality	
Failure to comply with wishes.
38
Q

ALWAYS have written permission to embalm.

From ?

A

individual with RIGHT to authorize embalming.

39
Q

Duty vs. Right

A

Duty - Obligation

Right - Privilege

40
Q

altering of an object or dead human body from its original condition. Based on definition, embalming is mutilation – due to the fact that it alters the dead human body from its original condition.

A

Mutilation

41
Q

implies receiving the body in the same condition as at the time of death.
Until permission to embalm is given

A

Right of possession

42
Q

Postmortem examination of ORGANS to determine cause of death.

A

Autopsy

43
Q

Postmortem examination of TISSUES to determine cause of death.

A

Dissection

44
Q

Exceptions to UNAUTHORIZED AUTOPSY
Required to determine cause of death
Payment of insurance benefits, life insurance, health insurance, accidental death

A

Contractual

45
Q

do not apply to a dead human body.

A

Liens, attachments, and replevin

46
Q

A claim or charge against property for payment of some debt.

  • Example: IRS places this on an individual’s home for back taxes.
  • Cannot be used to withhold a dead body
A

lien

47
Q

An action to recover possession of personal property,

  • Repossession of an automobile for nonpayment
  • Cannot be used to withhold a dead body
A

Replevin

48
Q

Failure to exercise ordinary care
Lack of due care, exercised by a wrongdoer who has not acted as a reasonable person would
Act of omission.
Act of commission.

A

Negligence

49
Q

Doing something which a reasonable prudent person would do under ordinary circumstances.

A

omission

50
Q

Doing something which a reasonable and prudent person would not do under ordinary circumstances.

A

commission

51
Q

Inadequate disinfection, preservation, and restoration.
Early decomposition
Especially when shipping remains.

A

Negligent embalming

52
Q

Not maintaining the body in a “suitable condition” pending final disposition such as not embalming or refrigerating, failure to honor family requests, improperly supervising cemetery burial

A

Negligent funeral directing

53
Q

Types of negligent acts

A 
Negligent embalming
Negligent funeral directing 
	Safeguarding the body
	Privacy and confidentiality
	Defective merchandise
Transportation
Aftercare
Errors in final disposition
Other negligent conduct
54
Q

Responsibility for wrongful acts (torts).

A

Tort Liability

55
Q

Tort Liability

Duties and obligations originate from two sources.

A
  • Funeral director should not interfere with right of burial

- Exercise reasonable care in keeping funeral home and other premises in safe condition.

56
Q

Is funeral director liable or not?

Volunteer drivers

A

no

57
Q

Is funeral director liable or not?

Agent drivers

A

yes

58
Q

Is funeral director liable or not?

Livery

A

yes

59
Q

Place of business used in the care and preparation for the funeral and/or final disposition of dead human bodies.

A

Funeral establishment

60
Q

Specific premises

A

Funeral Home
Church
Cemetery
Other facilities where funeral rites are held

61
Q

Depends on “status” of the visitor
Trespasser
Invitee
Business visitor

A

Level of care

62
Q

Level of care
Not invited
Very little degree of care if necessary

A

Trespasser

63
Q

Level of care
Social guests
Those who attend the visitation and/or funeral service; sales representatives—very high degree or “extraordinary level of care”, entrances & exits maintained in a safe condition

	Entitled to a very high degree level of care.
A

Invitee

64
Q

Level of care
Technically not an invitee
Still require a high degree level of care

A

Business visitors

65
Q

Resulting from grief, wounded pride, severe disappointment, indignation, shame, public humiliation, despair, etc.

A

Mental suffering

66
Q

Mental suffering is Usually accompanied by

A

physical injury or an outrageous intention or grossly negligent act.

67
Q

committed with the intention or purpose of causing harm.

A

Intentional act

68
Q

committed with complete disregard for proper conduct

A

Outrageous act

69
Q

committed with complete disregard for acting as a prudent person would under ordinary circumstances

A

Gross negligent act

70
Q

Involves such personal knowledge, skills or confidence that it can only be performed by the person with whom it is made. Both parties should recognize that any breach will usually cause anguish.

A

Personal service contract

Trakesha's 3rd Quarter (14 decks)

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