Mortuary Law Final ALL CARDS Flashcards
1
Q
Agreement between two or more competent persons which is enforceable by law.
A
Contract
2
Q
Elements of a contract:
A
Offer
Acceptance
Consideration
3
Q
Expression of willingness to enter into a contractual agreement
A
Offer
4
Q
agreement to an offer resulting in a contract
A
acceptance
5
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
6
Q
parties to a contract
A
Offeror
Offeree
7
Q
party who initiates or makes an offer
A
offeror
8
Q
example of an offeror…
A
FUNERAL HOME
9
Q
person to whom an offer is made
A
offeree
10
Q
example of an offeree
A
family in a funeral home that accepts or rejects
11
Q
types of contracts
A
express
implied
quasi
12
Q
parties express their intentions at the time of the agreement…either written or oral
A
express contract
13
Q
examples of express contracts
A
At need funeral
Pre-need funeral
14
Q
contract terms are assumed by acts or conduct of the parties
A
implied contract
15
Q
examples of implied contracts
A
first call
16
Q
implied contracts become_____________
A
express contracts
17
Q
fictional contract applied by a court for a person who is unable to contract for himself. Raises an obligation in law where, in fact, the parties made no promises.
A
quasi contract
18
Q
example of quasi contract
A
emergency medical care
19
Q
liability for funeral expenses
A
Decedent’s estate
Real property
Personal property
20
Q
property of a deceased person
A
estate
21
Q
anything attached to land or land itself
A
real property
22
Q
tangible or intangible property, such as personal effects, furniture, vehicles, jewelry, money, stocks & bonds
A
personal property
23
Q
personal property can be….
A
tangible or intangible
24
Q
condition of leaving a WILL at time of death, may or may not provide for funeral expenses.
A
testate
25
state or condition of dying without having made a will...NO WILL
intestate
26
not able to meet debts
insolvent estate
27
liabilities EXCEED the assetsestate is unable to pay debts of the decedent or estate
insolvent estate
28
limitations of the estate
```
size of estate
reasonableness of charges
local & ethic customs
status in life
director's knowledge
decedent's financial condition
```
29
Amount of money available to pay funeral expenses.
Are the funeral expenses proportional to the size of the estate?
Related to “solvency”
size of the estate
30
one can meet its debts...assets EXCEEDS the liabilities...more cash than expenses (bills)
solvent estate
31
STUDY THIS CARD IN DETAIL...
SIZE OF THE ESTATE...“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.”
32
COURTS consideration when determining reasonableness of charges...
status in life
33
examples of "status (station) in life"
standard of living
| religion
34
examples of "lifestyle"
economic
| social
35
```
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 membershipsLocal and contemporary customs
```
reasonableness of the charges
36
The decedent’s financial conditions
Solvency or insolvency of the estate
Related to reasonableness of the charges
Funeral director’s knowledge
37
What type of funeral arrangements are “customary” for the area?“Traditional” vs. “non-traditional”Related to station in life
Local and ethnic customs
38
allowable cost items of a funeral includes but not limited to...
```
embalming
uses of facilities
clothing
cemetery or cremation cost
flowers
OBC
professional services
casket
transportation
headstone/monument
newspaper notice
```
39
allowable cost items of a funeral may be affected by...
```
customs
fraternal requirements
cemetery requirements
religion
legal requirements
```
40
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”
priority of claim
41
May determine who has liability to pay the funeral bill.
Spouse for the spouse
Parents for minor and/or dependent children.
Parent is not liable for the expenses of an adult child..
common law
42
individual or individuals who volunteer to pay the funeral bill
volunteer
43
state or county government who pay the funeral bill
public authorities
44
wrongful act committed by one person against another person and/or their property
tort
45
torts include...
invasion of rights
mutilation
obstruction of funeral arrangements
wrongful withholding
46
two duties recognized by law that directly impact the funeral director...
1. not to interfere with the right of burial
| 2. exercise reasonable care to keep funeral home premises in a reasonably safe condition
47
Unauthorized embalming Unauthorized photos of deceased
Burial in the absence of the Next of Kin
right to privacy & Confidentially
Failure to comply with wishes.
invasion of rights
48
STUDY THIS CARD...ACCORDING TO THE FTC...
“Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing.” Also, “If you do not want embalming, you usually have the right to choose an arrangement which does not require you to pay for it such as direct cremation or immediate burial.”
49
In order to embalm you should always have ___________, from _____________________________.
written permission
| individual w/ right to authorize embalming
50
examples of obstruction of funeral arrangements by hospital or other institutions..
wrongfully holding or refusing to release remains beyond necessary time to complete autopsy, paperwork, etc
51
examples of obstruction of funeral arrangements by public officials...
not releasing body within reasonable period of time when the body is held for forensic and/or legal purpose. Regarding questionable deaths (murder, suicide)
52
examples of obstruction of funeral arrangements by funeral director...
failure to proceed with selected funeral arrangements...especially due to non-payment of the funeral
53
LEGALLY, embalming is _________
a form of mutilation
54
altering of an object or dead human body from its original condition
mutilation
55
right of possession implies receiving the _________________ in the same condition as at_________. Until permission to embalm is given
receiving the body
| time of death
56
mutilation includes...
unauthorized removal of facial hair, tissue, organs, & medical devices
57
what types of restorative art procedures are mutilation?
Invasive beyond normal RA processes
58
Postmortem examination of organs to determine cause of death.
autopsy
59
Postmortem examination of tissues to determine cause of death.
dissection
60
exceptions to UNAUTHORIZED AUTOPSY...
Contractual
Payment of insurance benefits
Required to determine cause of death
Life insurance
61
Public officer Duty to investigate cause of death Question or accident, suicide, or homicide might be evident Or no physician in attendance
Coroner
Medical Examiner
Justice of the Peace
62
Liens, attachments, and replevin do not apply to a dead human body.Body is not “property.”Related to refusal to surrender upon demand.
Wrongful withholding
63
A claim or charge against property for payment of some debt.
lien
64
an action to recover possession of personal property...example a car
replevin
65
other torts involving the FD
negligence
omission
commission
66
Failure to exercise ordinary careLack of due careExercised by a wrongdoer who has not acted as a reasonable person would. Act of omission. Act of commission.
negligence
67
doing something which a reasonable prudent person WOULD do under ordinary circumstances...
omission
68
doing something which a reasonable and prudent person would NOT do under ordinary circumstances
commission
69
types of negligent acts...
negligent embalming
Inadequate disinfection, preservation, and restoration.
Early decomposition...Especially when shipping remains.
70
Not maintaining the body in a “suitable condition” pending final disposition such as not embalming or refrigerating.Failure to honor family requestsImproperly supervising cemetery burial
negligent funeral director
71
make these cards
Negligent Acts:
Safeguarding the body Body and personal effects Privacy and confidentiality Information about the decedent, family, etc. Defective merchandise Implied warranties of “merchantability” and fitness for a particular purpose, the funeral director is liable, unless a disclaimer is made on the casket and Outer Burial Container Price List Transportation Funeral Home as a PRIVATE CARRIER is charged with conveying Body of the deceased and passengers Safe and non-negligent manner All funeral home livery (rolling stock) Failure to exercise ordinary care will result in a breach of contract and the liability. Aftercare Proper training and credential for personnel. “Grief facilitator” vs. “grief counselor” – Funeral Home personnel are Grief Facilitors Included with malpractice insurance policy
72
Errors in final disposition
Wrong manner and/or place of final disposition
Wrong grave or wrong cemetery
No outer burial container when one is purchased.
Cremated when should be buried.
73
Other negligent conduct
Any act of omission or commission
Performed by the funeral director
While completing the duties and responsibilities of professional licensure.
74
Responsibility for wrongful acts (torts)
liability
75
Certain restrictions applyDepending on the relationship between the funeral director and the driver (s).Some characteristics of a funeral procession:Cars in close formation of each other / Usually have head lights on
liability for the funeral procession
76
Drivers that are Not under the direct control of the funeral directorNot funeral home employees or agentsFuneral director has no controlUsually has no liability
volunteer drivers
77
Drivers Under the direction and control of the funeral directorLiable for their actionsFuneral home employees or agents
agent drivers
78
Automotive equipment made available for hire.Funeral director is liableWhen such cars and drivers are held as their own.
livery
79
Place of business used in the care and preparation for the funeral and/or final disposition of dead human bodies.Related to general duty clause and general workplace safety provisions (OSHA)
funeral establishment
80
types of specific premises...
funeral home
church
cemetery
other facilities where funeral rite is held
81
level of care depends on...
status of the visitor
trespasser
invitee
business visitor
82
not invited...very little degree of care is necessary...
trespasser
83
social gueststhose who attend the visitation and/or funeral service.entitled to a very high degree level of care
invitee
84
technically NOT an invitee..still require a HIGH degree level of care
business visitors
85
these two require HIGH DEGREE LEVELS of care...
invitee
| business visitor
86
very little degree level of care is required for...
trespassers
87
Resulting from grief, wounded pride, severe disappointment, indignation, shame, public humiliation, despair, etc.
mental suffering
88
mental suffering is usually accompanied by __________ or an __________ or ________________ act.
physical injury
outrageous
intention
grossly negligent
89
committed with the intention or purpose of causing harm.
intentional act
90
committed with complete disregard for proper conduct
outrageous act
91
committed with complete disregard for acting as a prudent person would under ordinary circumstances.
gross negligent act
92
intentional actoutrageous actgross negligent actare all applicable to...
personal service contract
93
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.Furthermore....Involves any contract between the funeral director and family.Torts we have already discussed.Only a licensed funeral director qualified to provide professional service to the family.
personal service contract
94
Rules of civil conduct commanding what is right and prohibiting what is wrong “Blackstone’s definition.”
LAW
95
Branch of law which relates to matters concerned with disposal of the dead.Text book definition (Stueve/Gilligan)- Rules and principles that society has established for handling and disposition of the dead.
Mortuary Law
96
Mortuary Law is also known as mortuary ________________
Jurisprudence
97
“The Pyramid of Law”
```
Stare decisis
Case law
Ordinances
Administrative law
Police power
Statutory law/statutes
Constitutional law
Common law
```
98
-Non-legislated principles and rules of action.-Predicated upon usage and customs.-Rooted in English and early colonial law.-Customs which have become recognized by the courts as binding on the community (Business Law definition)
Common law
99
-Written document containing fundamental principles of government.-Detailing the Powers and duties of a government.-Guarantees certain Rights of the people – societies evolved from small family units to groups-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
100
-Particular law enacted by a legislative body.-United States Congress / Federal Government-State legislatures / State Government
Statutory law - statutes
101
Inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens.
Police power
102
-Body of law created by federal and state administrative agencies.-Implements their power and duties.-Rules, regulations, orders, and decisions.
Administrative law
103
Appointed governmental body charged with implementing particular legislation and have rule making authority.
Administrative agency
104
OSHA is an example of
Funeral Administrative Agencies
105
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
106
EXAMPLES of Police Power in Mortuary Law
Licensure requirements Health Standards Business Operations
107
Law passed by a municipal governing body.Village, town, cityRelated to matters not already covered by federal or state law.
Ordinance
108
Municipal Laws in Mortuary Law...
Zoning- Commercial vs. Residential
| Building Code- Electrical; Plumbing; etc.Safety Code- Exits signs, Emergency Evacuation Routes
109
Court decisions that established precedent principles.Determines the “constitutionality” of a statute, rule, or regulation.
Case law
110
Determines if the Supreme Court will hear the case.
Writ of certiorari
111
When an issue is resolved by a courtEstablishes a “precedent” or “principal”Controls future court decisions“Like cases” decided in “like manner”Very important in mortuary law
Doctrine of Stare Decisis
112
Sources of mortuary law
State laws and regulations
Case law and stare decisis
Common law
Federal law
113
Principle regulators of the funeral service profession.Based on a state’s “police power.”Delegated to an administrative agency (TFSC)
State laws and regulations
114
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
115
Federal Trade Commission to protect consumers / prevent monopoliesOccupational Safety and Health Administration-concerned mostly with refineries / petroleum industriesAmerican with Disabilities Act – make accessible for those who are disabled. Federal Wage and Hour
Federal laws
116
Body of a human being (identified or unidentified)Deprived of lifeNot yet entirely disintegrated
Dead human body
117
Antiquated term for dead human bodySynonymous term used for dead bodyMust also meet all 3 conditions to be legally dead
Corpse
118
Would dust of a "long dead body" be classified as a dead human body?
NO
119
State of complete and irreversible cessation of metabolic (chemical & physical) processes.Leading ultimately to dissolution of the organs.In 1950 court case it was defined as the cessation (stoppage) of circulation (heart) and respiration (lungs)
Death (the new legal/medical definition)
120
Total and irreversible cessation of brain function.As indicated by a flat EEG reading.
Brain death
121
electroencephalogram abbreviated is
EEG
122
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
123
Organs, tissues, eyes, bone, arteries, blood, other fluids, and any other portion of a human body for transplantation.
Uniform Anatomical Gift Act (UAGA) definition of Body parts
124
UAGA stands for
Uniform Anatomical Gift Act
125
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.
126
Property and property rights in a dead human body.
No property theory
Property theory
Quasi-property theory
127
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)
128
No longer an accepted theory!Opposite ideaDeveloped as law became more “secular” or non-religious.Rather than “ecclesiastical” or church based.Dead body now seen as “property” of the surviving family member.
Property theory
129
Currently accepted theory of the legal status of a dead human body.Rights associated with the body are as if it were “property” for the purpose of final disposition only.
Quasi-property theory
130
The bundle of rights is the:Right to ____________ for the purpose of _____________.Right to ________________ to be used within ___________ of the law.Right to _____________ from __________ of the body.Right to _____________ of the body.
```
take the body
final disposition.
allow body parts
confines
exclude others
possession
dispose
```
131
police power of the government requires proper ___________________________________
disposition of a dead human body.
132
“statutes which impose criminal penalties for the failure to _______or________ a corpse within a _____________ after death have been applied to ______________.”
Bury or incinerate
Reasonable time
Funeral directors
133
Methods of final disposition
```
Burial
Entombment
Cremation
Burial at sea
Anatomical donation
```
134
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
135
Second most common form of disposition.CryptMausoleumBuilding dedicated for this purposeIndividual or family structures
Entombment
136
Legal if crematory is properly licensed.Compliant 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. TEXAS states must hold remains 121 days before declaring them abandoned.
Cremation
137
Inurment - cremains placed in an urn.Placed in a niche in a columbarium.Buried in a cemetery.Scattered.
Disposition of cremains
138
Scattering gardenCemeteryOpen seaThree nautical miles from shoreline. (6,080 ft)Must be reported to Environmental Protection Agency (EPA)
Scattering cremains
139
Provided under Maritime Law.Protect health and safety of crew and passengers.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 drilled in casket shell.Banded to prevent opening.Remains must sink rapidly and permanently to ocean floor.Notify Environmental Protection Agency (EPA)
Burial at sea (Death aboard a ship at sea)
140
All states have ________ when concerning anatomical donation.Which is a legal requirement for disposition of a dead human body.
statutes
141
Community standards for a decent burial
Protection of public health
Public morality and common decency
Respect for the dead
142
Placing cremated remains in an Urn.Placing cremated remains in a Niche in a Columbarium.
Inurnment
143
Funeral homes are liable for the actions of ________________ crematories, so they must do their ______________________.
3rd party
| Due diligence
144
Dead human body intended solely for scientific study and dissection.
Cadaver
145
all states have statutes allowing the decedent or his/her survivors to ______________________
make a gift to medical science.
146
Law permitting a person of legal age and sound mind to give all or any part of his/her body.
Uniform Anatomical Gift Act.
147
When does the Uniform Anatomical Gift Act take effect?
upon his/her death.Or gives the right to another.
148
requirements for a decent burial/final disposition
community standards
considerations
statutes
149
this is an obligation...
duty
150
this is a privilege
right
151
primary duty of final disposition rest with the...
householder
surviving spouse
next of kin
152
one who owns or controls real estate where death occurs. Duty is to notify the proper authorities
householder
153
widow (female) or widower (male)NOT a blood relative
surviving spouse
154
one's relatives collectively- Referring to BLOOD relationship or adopted into the family.
next of kin
155
Legally, a surviving spouse is NOT considered...
kin/next of kin
156
order of Next-of-kin
Children of proper age (18 or older)
Parent(s)Sibling(s) -Typically the oldest brother(s) or sister(s)
More distant kin -Aunts, uncles, cousins, etc.
157
some states do REQUIRE the signature of both...
Parents
| Siblings
158
The order of next of kin is based on...
general rule of priority or statute of descent & distribution
159
The general rule of priority or statute of descent & distribution is NOT...
an iron clad rule in all states
160
The duty of burial rests with the...
spouse or next-of-kin
161
secondary duty of final disposition falls upon...
Public authorities such as:
| State Or other governmental body or authority
162
possession and control of the body attaches at the....
moment of death
163
primary right of final disposition and general rule of priority
```
wishes of decedent
surviving spouse
next of kin
personal representative
guardian
volunteer
funeral director
```
164
Considerations of WISHES OF DECEDENT...
Pre-need/if written
Will
Other document or declarations -Written or Orally
165
making funeral arrangements in advance with no payment
pre-planned
166
making funeral arrangements in advance with payment
pre-funded
167
instrument executed with required formality by a person making disposition of his/her property to take effect upon his/her death.
will
168
other documents or declarations
written instructions
| oral instructions
169
important factors to consider about wishes of decedent
Decedent's mental capacity
Proximity of expression of preference to time of death. -Ex: If the preference was expressed in close proximity to death, courts will give greater weight than if preference was made years prior to death.
170
Primary right of final disposition generally goes to...
Surviving spouse
| Widow/Widower
171
Based on general rule or priority or statute of descent & distribution, how is a DEGREE OF KINDRED COUNTED?
Each generation is one degree, counting to a common ancestor
172
If a child is legally adopted they are ______________
considered KIN
173
person who represents and settles the estate of deceased person(s)
personal representative
174
individual appointed by the will to carry out its provisions and settle the estate
executor/ executrix
175
types of personal representatives
executor
executrix
administrator
administratrix
176
An Executor is a____________
male
177
anyone who agrees to assume the right of final disposition.
volunteer such as:
Friend
Neighbor
Co-worker
178
if the family doesn't act concerning secondary right of final disposition then ___________ will step in.
Government:
EX: State County (Texas) Local
179
An Executrix is a ___________
female
180
Individual appointed by the probate court to settle an estate.
Administrator/Administratrix
181
Who will step up concerning Secondary Right of final disposition ,as far as government, is contigient on....
the jurisdiction when and where death occurred
182
funeral director undertaking the funeral has lawful rights from what two sources....
1. Those granted and imposed by statutes, ordinances, and regulations. - Licensing regulations allowing the FD to practice profession
2. Those arising from the funeral contract - Rights authorized by the person with paramount right of disposition.
183
An Administrator is a _________
male
184
An Administratrix is a _________
female
185
Judicial appointed person to administer the affairs of another person who is incompetent by virtue of age or legal disability.Prior to decedent’s death.
Guardian
186
FUNERAL DIRECTOR’S DUTY IN CASE OF CONFLICT
1. Hold body until proper party authorizes its disposition
2. Should not decide or attempt to influence the decision
3. Should inform the family no action will be taken until parties come to a settlement
4. Or until courts decide
5. Above all remain neutral
187
A funeral director should continue to ____________________ until a family reaches an agreement.
offer options
188
What are these....Laws and licensing regulationsAuthorize and empower the funeral director to practice the profession.Related to all actions required for the funeral process.
Statutes, ordinances, and regulations
189
There should be a ________________between the funeral director and the individual with the right of disposition. It is REQUIRED.
funeral contract
190
“The funeral director has __________in his professional capacity with respect to a _________ until such time as a _____________is entered into between himself and another, either ________ or _________.”
```
no rights
dead body
valid contract
expressly
implicitly
```
191
What type of contract is a First Call?
Implied
192
What type of contract is a statement of funeral goods and services selected?
Express
193
if a person dies testate, they__________
had a will
194
if they die intestate, they ____________
did not have a will
195
mortuary law is also known as Funeral ____________Law
service
196
mortuary law is also known as _______________ law.
funeral
197
FTC is an example of.......
funeral administrative agencies
198
TFSC- Texas Funeral Service Commission is an example of......
funeral administrative agencies
199
Would bones of a skeleton be classified as a dead human body?
no
200
Would a partially dismembered body be classified as a dead human body?
YES
201
must meet all three of these conditions to be "legally" dead.
1. body of human
2. deprived of life
3. not yet entirely disintegrated
202
“Property is often conceptualized as a__________________
bundle of rights
203
The ‘bundle of rights’ which have been associated with property include the right to _____________.
```
possess
use
exclude
profit
dispose
```
204
Dead human body is the __________of the surviving family member with a _____________.
quasi-property “bundle of rights.”
205
Promote and protect the public health.Public morality for a “decent” burial.Necessitates the disposition of the dead by regulated methods
Necessity of final disposition:
206
three nautical miles from shoreline must be reported to environmental protection agency (EPA)
burial at open sea
207
provided under maritime lawprotect health and safety of crew and passengers
death and burial at sea
208
Receiving institution of a cadaver has the right to _________________refuse the donation.
refuse the donation.
209
Anyone who agrees to assume the right of final disposition.
Volunteer
210
Laws passed by a municipal governing body. Such as: TOWN or CITYZoning, building, safety, etc.Special Use PermitsMatters not already covered by federal and/or state laws.
Ordinances
211
Laws passed by a municipality by virtue of the police power which regulates the kind of building, residences, or businesses that may be built and used in different parts (zones) of the municipality
zoning ordinances
212
Issued by local municipalities.Grant permission to use a building or facility for a special or specified use or purpose.
Special use permits
213
requirements for construction, maintenance, operation, occupancy, use, and appearance of the building.
Building codes
214
a FIXED PLACE of business used in the care and preparation for the funeral and/or disposition of dead human bodies.
funeral establishment
215
the _________________ of the state and______________authorizes the licensing and regulating of __________________ and funeral establishments...
police power....local government......funeral directors
216
Funeral establishment RESTRICTIONS
Ordinances........Building codes.........Restrictive covenants........Nuisance........Regulatory Specifications
217
municipality zonings...
Residential........Commercial
218
In some municipalities there may be either __________ or _____________________
No zoning...........Combination of Residential & Commercial
219
Funeral Establishments...are classified as ____________ or ____________ of property.Generally not allowed to operate in____________._______________ zoning ordinances may affect existing uses
commercial use........business use.........residential zones.......new or changed
220
allows existing non-conforming uses to stay with restrictions
Grand-father clause
221
Issued by local municipalities.Grant permission to use a building or facility for a specified use or purpose such as hospitals, churches, etc.
Special Use Permits
222
regulations which control requirements for business and residential buildings
building codes
223
building codes regard...
fire & safety.........maintenance & operation........occupancy & use......appearance
224
Provisions in a deed limiting the use of property and prohibiting certain uses.
restrictive covenants
225
example of restrictive covenants
deed restrictions
226
contracts dealing with transfer of ownership...seller agrees not to compete.
covenants not to compete
227
what are requirements in NOT TO COMPETE covenant with...
For a specified period of time........Nor in a specified geographical area........Both are enforceable by law if deemed reasonable
228
Invasion of a Landowner’s use of property which interferes with the public or another landowner’s use and enjoyment of his/her property.
Nuisance
229
Acts, occupations, or structures which are nuisances at all times and under all circumstances.May be prejudicial to public morals, dangerous to life, or injurious to public rights.
nuisance per se
230
Funeral homes are not _______
nuisance per se
231
Acts, occupations, or structures which are not nuisances per se, but may become this by circumstances of the location or manner in which it is operated.
Nuisance in fact
232
A funeral home may become a _______________________
nuisance in fact
233
regulatory specifications....
Federal standards......State standards.......Health codes
234
types of federal administrations
OSHA.....EPA.....ADA
235
Rules related to embalming procedures, funeral home personnel protection and safety.
OSHA
236
Rules concerning the use and control of formaldehyde and chemicals used by embalmers.
EPA
237
to provide individuals with full use and enjoyment of public accommodations, requires businesses to remove architectural, communication and transportation barriers for physically impaired, provided it can be done without much difficulty and expense
ADA
238
Passed July 1990 – establishes two standards: building built after January 26, 1993 must comply to all ADA requirements and buildings built before January 26, 1993 have four priorities
AMERICANS WITH DISABILITIES ACT...(ADA)
239
EPA stands for...
environmental protection agency
240
The ADA require these things on any building built BEFORE January 26,1993,
1. ramps, widen doors, cut curbs, put in handicap parking.....
2. provide public access to areas where goods and services are provided.....
3. provide public access to restrooms i.e., toilet seats, mirrors, sinks, towel dispensers and grab bars......
4. any other modifications i.e., water fountains, phones, etc,.
241
Individuals with AIDS or other such diseases shall not be refused service. EX: embalming. Nor should there be a surcharge for such service. THIS IS AN EXAMPLE OF........
WITHOLDING SERVICES
242
It withholding services occur...
It is a violation of the ADA......Family can file action under ADA.
243
withholding services is ENFORCED by....
U.S. Attorney General......Private individuals
244
penalties for WITHHOLDING SERVICES
1. Remove the violation.....2. First violation is $50,000.....3. Subsequent violations is $100,000
245
State Standards for Funeral Homes are as follows....
Fixed location........Licensed personnel – FCIC – however, owner of the funeral home doesn’t have to be a licensed funeral director.........Access to rolling stock - livery..........Facilities for conducting funerals.........Display room with proper number and selection of caskets.Adequate preparation room
246
State Standards for the Prep room
Designed and equipped for embalming and otherwise preparing dead human remains........Sufficient size.......Secluded from the public.......Walls, ceiling, and floor non-porous and easy to clean......Proper ventilation (OSHA)........Sewer and disposal facilities..........Hot and cold running water.........Operating table.........Instruments and chemicals...........Meet local and state sanitary codes.
247
area of ground set aside and dedicated for the final disposition of dead human bodies
cemetery
248
______________regulates cemeteries as of ____________________
Texas Funeral Service Commission ........September 2003
249
_______________ cemeteries are regulated under the ________________________
Perpetual......Department of banking
250
classifications of cemeteries
Public.....Private.....National
251
1. Accessible for burial by any member of the public.2. May include designated “sections”3. Veterans, children, specific religious groups (Jewish, Roman Catholic, Protestant, etc.)
Public cemetery
252
Types of ownership and operation of public cemetery
1. Private individual, company, or corporation....2. Local municipality, such as village, town, city, or county
253
accessible for burial only by those who are granted permission
private cemetery
254
types of ownership of private cemetery
1. Private individual, company, or NON-PROFIT corporation....2. Restrictions for religious beliefs and/or customs
255
Cemetery created by an act of the US Congress
national cemetery
256
national cemetery is typically restricted to eligible vets of what armed forces?
Army....Navy....Air force....Marines....Coast Guard
257
Eligible dependents in National cemetery
SpouseMinor children
258
in a national cemetery burial is...
next available & spouses are stacked
259
eligibility for national cemetery should be...
established prior to interment....
260
what is required for burial in National cemetery
Proof of service in military....Veteran's service record (VA form DD-214)...Discharge certificate
261
discharge from military should be...
under conditions OTHER THAN dishonarable
262
cemetery location is based on...
police power to protect public health........eminent domain.......just compensation to property owners.....zoning ordinances
263
inherent power of a government to take private property for public use.
eminent domain
264
zoning ordinances for cemeteries is the same as ______________, because they are NOT allowed in __________.
funeral homes......residential areas
265
a cemetery is NOT a___________________
nuisance per se
266
enactments by an administrative body governing jurisdiction of that agency......must be reasonable.....dictates cemetery location & operation.....related to police power
rules & regulations of cemeteries....
267
rules and regulations of cemeteries includes both....
state & local rules & regulations
268
discrimination concerning cemeteries
1. restrictions on interment....2. religious beliefs and/or customs3. military service4. more restrictions on private cemeteries5. differences in ownership and/or rules & regulations
269
rights of ownership concerning plots are considered ________________ even though it is _______________ used for a specific purpose.
personal property.....real estate
270
plots require...
license for interment....right of interment....use of an OBC...marker or monument (as allowed by cemetery)
271
plot owners have the right to.....
have plot cared for & protected.....perpetual or endowed care......sell the plot
272
in order to sell a plot the plot owner must ....
meet cemetery requirements....obtain permission from cemetery owner
273
Right to Inter is subject to....
cemetery rules....use of OBC.....specific types of markers (flat or uprights)
274
desecration of graves is....
a criminal offense.
275
graves are based on....
high regard....respect...morality
276
public sentiment dictates that cemetery is ______________ and should not be disturbed. Generally speaking that is how the LAW sees it also
sacred ground
277
a grave should only be disturbed if there is.....
compelling reasons
278
once a cemetery ______________
always a cemetery
279
typically disinterments are looked at _____________________, unless there is a compelling reason..
Unfavorable
280
Removal of a human corpse previously buried in the earth.Removal of entombed body or cremains from their repository.
Disinterment
281
disinterment also means...
exhumation
282
exhumation is typically....
not permitted
283
exhumation is typically not permitted due to .....
respect for human desire to not have remains disturbed...sentiment of survivors....protection of public health
284
disinterment may be permitted for...
public interest...private reasons....contractual purposes
285
These are examples of what????One of two principal grounds upon which disinterment may be authorized by law.............Disinterment and reinterment occur in same location..........Used to further some matter of public interest........Gather evidence for criminal or civil case............State has power to request exhumation..........“Police power”.......Affirm/disaffirm cause of death.......Protection from insurance fraud.........Greater burden of proof is required than for evidence in a criminal trial............Provide access to a public street..........Or remains pose a threat to public health (contaminate water supply)..............Reinterment will occur in a different location.
public interest concerning disinterment
286
Second ground upon which disinterment may be authorized by law........Disinterment for purpose of reinterment in another location.
private reasons for disinterment
287
private reasons for disinterment is due to...
Dissatisfaction with place of interment.....Relocation of family.....Interment in wrong location (not a family plot).......Abandoned or neglected cemeteries
288
private reasons for exhumation is a matter of ________________ in most states or ______________________
statutory regulation......case law
289
requirements to authorize exhumation for private reasons
Spouse or next of kin make request in writing to trustee of cemetery..........Funeral director may be required to attend......Restrictions may be placed for public health reasons.
290
These are concerning what?????Factors related to “reasonable cause” for dininterment......Degree of relationship to decedent........Express wishes of decedent.........Conduct of persons seeking or preventing disinterment......Length of time since original interment........Strength of reasons for or against disinterment.........Integrity and compassion to provide a secure and comparable resting place for decedent..........Right and principals of religious body or other institution which granted right to original disposition...........
private disinterments
291
contractual purposes of disinterment
Mentioned previously......Affirming/disaffirming cause of death......Payments of benefits under an insurance policy........Prevent insurance fraud
292
right of disinterment may be __________________________ and applies to ______________________
governed by state statute......disinterment for public & private reasons
293
right to control rests with....
State when required for evidence in criminal trial....Spouse or next of kin in most other cases
294
disinterment WILL NOT occur _________________________ except upon ___________ & ________________ evidence that persuades a court of _________ that the disinterment is required by justice.
against the will of other relatives.....strong.....convincing.....equity
295
disinterment permits must be obtained from _________________
proper authorities
296
in Texas, written order (permit) must be from _______________ and obtained by the _________________
state registrar or designee........funeral director
297
four parts of necessary permits....
state registrar....local registrar.....funeral director.....cemetery
298
all four parts are required unless....
re-interment is in same cemetery
299
if done without proper authorization, disinterment will be_________________
in violation under statute and common law
300
improper disinterment is usually considered...
simple larceny
301
Some exceptions are allowed to zoning ordinances for professions such as doctors & dentists. These permits are called?
Special use permits
302
Funeral directing is considered a _____________ not a ______________.
Business...profession
303
Funeral directing would not qualify for .....
special use permits
304
model law enacted to achieve uniformity in probate proceedings throughout the United States, not adopted by all states
uniform probate code (UPC)
305
act or process of proving a will
probate
306
court having jurisdiction over estates
probate court
307
a gift of REAL ESTATE made by will
devise
308
(sets the gift under a will) – One who inherits real estate under a will
devisee
309
a gift of PERSONAL PROPERTY under a will
bequest or legacy
310
(gets stuff by inheritance of personal property under will) – One who inherits personal property under a will.
legatee
311
an instrument executed with required formality by a person-making disposition of his/her property (estate) to take effect upon his/her death.
will
312
Requirements for Will:
Legal Age / Testamentary Capacity / Formaility
313
“legal adult”, age 18 or older, in most states
legal age
314
Testator / Testatrix must know the intent, know the nature and extent of estate, know natural object of bounty
Testamentary Capacity
315
generous gift, given freely
bounty
316
real and/or personal property of a deceased person
estate
317
Will Formalities:
In writing....Signed by person who makes a willWitnessed by two or more disinterested witnessesUsually signed in presence of each other
318
person who makes a will...
TESTATOR/TESTATRIX
319
Special kinds of Wills –
Nuncupative / Holographic / Soldiers & Sailors
320
an oral will, dictated by testator/trix during last illness, before appropriate witnesses, disposes of personal property, afterwards written down.
Nuncupative will
321
a type of will; hand-written by testator/trix, legal if signed by appropriate witnesses
Holographic will
322
a type of will; informal nuncupative (oral) will by a soldier in the field or a sailor at sea, DISPOSES OF PERSONAL PROPERTY ONLY
Soldiers & Sailors will
323
Amendments or Revocation of Wills by
By act of Testator / Operation of the Law / Codicil
324
deliberately destroying a will, prior to death constitutes
revocation
325
an addition or amendment of a LAST WILL and Testament executed with the same formality as the will
Codicil
326
wills in regards to marriage or remarriageREVIEW THIS A FEW TIMES
if a person makes a Will and later marries, the marriage may revoke the will in whole or in part. Or the will may be presumed to be revoked unless made in contemplation of the marriage or unless it makes provision for a future spouse.In some states a marriage will not revoke a Will completely, but so that the spouse will get the estate that would have been received in the absence of a Will.
327
a distribution problem under the will– proportional reduction of a legacy under a will when assets out of which such legacy are payable are not sufficient to pay it in full.
abatement
328
a distribution problem under the will– Extinction or withdrawal of legacy by testator’s act.
ademption
329
a distribution problem under the will– Spouse’s election to take against the Will
in some states surviving spouse may elect to take one-third to one half of decedent’s property instead of the share provided.
330
Distribution of Property equal share is given to each of a number of persons, all of whom stand in equal degree to decedent.
per capita (by the head)
331
Distribution of Property – property divided into lines of descent, share of each line then divided by way of representation, not all parties received an equal share
per stripes (by the root)
332
Distribution of Property state or condition of dying without having made a will.
INTESTACY (intestate)
333
Distribution of Property –succession of an heir at law to property and estate of his/her ancestor when the latter had died without a will
INTESTATE Succession
334
spouse, next of kin, if no spouse or children, grandchildren, parents, siblings, grandparents, aunts, or uncles.
DISTRIBUTION OF PROPERTY-TITLE BY DESCENT
335
Distribution of Property – forfeiture of decedent’s property to the state in absence of heirs.
ESCHEAT
336
appointment of Personal Representative, which is the person who represents and settles the estate of deceased persons
administration of an estate
337
Personal Representatives; male or female, appointed by the will to carry out provisions thereof and settle the estate.
EXECUTOR / EXECUTRIX
338
Personal Representatives; male or female appointed by the court to settle an estate, estate representation due to intestacy.
ADMINISTRATOR /ADMINISTRATRIX
339
Duties of representative
INVENTORY.Listing and valuation of a decedent’s assets, Deduct security interest(s) from Real Estate Mortgage, secure loan on parcel of real estate, personal property.
340
unable to pay debts of decedent and / or the estate
insolvent estate
341
PRIORITY OF CLAIMS AGAINST AND ESTATE IN INTESTACY
Funeral Expenses (preferred claim)...... Administration expenses.......Taxes.........Last Illness expenses.........all other expenses.
342
Instrument in writing, authorizing another to act as one’s agent or attorney. Person is an agent in fact and by law terminates at the time of death of the principal; can be general or specific.
power of attorney
343
Principal executes a power of attorney, comes into and remains in effect when principal becomes disabled, duties may include but not limited to, Heath-Care decisions, admission to hospital; nursing home’ medical treatment – feeding tubes etc
durable power of attorney
344
Becomes effective at a future time, that is, it “springs up”, upon the happenings of a specific event chosen by the Power of Attorney (principal’s physician). Often that event is the illness or disability of the Principal, Principal’s physician will determine whether Principal is competent to handle his/her financial affairs.
springing power of attorney
345
written documents that governs, withholding, and withdrawal of life – sustaining treatment, for individuals with incurable or irreversible condition that will cause death
living will
