Mortuary Law Final ALL CARDS Flashcards
Agreement between two or more competent persons which is enforceable by law.
Contract
Elements of a contract:
Offer
Acceptance
Consideration
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.
How one will pay cash, check, money order, property, etc.
consideration
parties to a contract
Offeror
Offeree
party who initiates or makes an offer
offeror
example of an offeror…
FUNERAL HOME
person to whom an offer is made
offeree
example of an offeree
family in a funeral home that accepts or rejects
types of contracts
express
implied
quasi
parties express their intentions at the time of the agreement…either written or oral
express contract
examples of express contracts
At need funeral
Pre-need funeral
contract terms are assumed by acts or conduct of the parties
implied contract
examples of implied contracts
first call
implied contracts become_____________
express contracts
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.
quasi contract
example of quasi contract
emergency medical care
liability for funeral expenses
Decedent’s estate
Real property
Personal property
property of a deceased person
estate
anything attached to land or land itself
real property
tangible or intangible property, such as personal effects, furniture, vehicles, jewelry, money, stocks & bonds
personal property
personal property can be….
tangible or intangible
condition of leaving a WILL at time of death, may or may not provide for funeral expenses.
testate
state or condition of dying without having made a will…NO WILL
intestate
not able to meet debts
insolvent estate
liabilities EXCEED the assetsestate is unable to pay debts of the decedent or estate
insolvent estate
limitations of the estate
size of estate reasonableness of charges local & ethic customs status in life director's knowledge decedent's financial condition
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
one can meet its debts…assets EXCEEDS the liabilities…more cash than expenses (bills)
solvent estate
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.”
COURTS consideration when determining reasonableness of charges…
status in life
examples of “status (station) in life”
standard of living
religion
examples of “lifestyle”
economic
social
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
The decedent’s financial conditions
Solvency or insolvency of the estate
Related to reasonableness of the charges
Funeral director’s knowledge
What type of funeral arrangements are “customary” for the area?“Traditional” vs. “non-traditional”Related to station in life
Local and ethnic customs
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
allowable cost items of a funeral may be affected by…
customs fraternal requirements cemetery requirements religion legal requirements
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
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
individual or individuals who volunteer to pay the funeral bill
volunteer
state or county government who pay the funeral bill
public authorities
wrongful act committed by one person against another person and/or their property
tort
torts include…
invasion of rights
mutilation
obstruction of funeral arrangements
wrongful withholding
two duties recognized by law that directly impact the funeral director…
- not to interfere with the right of burial
2. exercise reasonable care to keep funeral home premises in a reasonably safe condition
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
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.”
In order to embalm you should always have ___________, from _____________________________.
written permission
individual w/ right to authorize embalming
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
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)
examples of obstruction of funeral arrangements by funeral director…
failure to proceed with selected funeral arrangements…especially due to non-payment of the funeral
LEGALLY, embalming is _________
a form of mutilation
altering of an object or dead human body from its original condition
mutilation
right of possession implies receiving the _________________ in the same condition as at_________. Until permission to embalm is given
receiving the body
time of death
mutilation includes…
unauthorized removal of facial hair, tissue, organs, & medical devices
what types of restorative art procedures are mutilation?
Invasive beyond normal RA processes
Postmortem examination of organs to determine cause of death.
autopsy
Postmortem examination of tissues to determine cause of death.
dissection
exceptions to UNAUTHORIZED AUTOPSY…
Contractual
Payment of insurance benefits
Required to determine cause of death
Life insurance
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
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
A claim or charge against property for payment of some debt.
lien
an action to recover possession of personal property…example a car
replevin
other torts involving the FD
negligence
omission
commission
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
doing 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
types of negligent acts…
negligent embalming
Inadequate disinfection, preservation, and restoration.
Early decomposition…Especially when shipping remains.
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
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
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.
Other negligent conduct
Any act of omission or commission
Performed by the funeral director
While completing the duties and responsibilities of professional licensure.
Responsibility for wrongful acts (torts)
liability
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
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
Drivers Under the direction and control of the funeral directorLiable for their actionsFuneral home employees or agents
agent drivers
Automotive equipment made available for hire.Funeral director is liableWhen such cars and drivers are held as their own.
livery
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
types of specific premises…
funeral home
church
cemetery
other facilities where funeral rite is held
level of care depends on…
status of the visitor
trespasser
invitee
business visitor
not invited…very little degree of care is necessary…
trespasser
social gueststhose who attend the visitation and/or funeral service.entitled to a very high degree level of care
invitee
technically NOT an invitee..still require a HIGH degree level of care
business visitors
these two require HIGH DEGREE LEVELS of care…
invitee
business visitor
very little degree level of care is required for…
trespassers
Resulting from grief, wounded pride, severe disappointment, indignation, shame, public humiliation, despair, etc.
mental suffering
mental suffering is usually accompanied by __________ or an __________ or ________________ act.
physical injury
outrageous
intention
grossly negligent
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
intentional actoutrageous actgross negligent actare all applicable to…
personal service contract
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
Rules of civil conduct commanding what is right and prohibiting what is wrong “Blackstone’s definition.”
LAW
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
Mortuary Law is also known as mortuary ________________
Jurisprudence
“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 early colonial law.-Customs which have become recognized by the courts as binding on the community (Business Law definition)
Common law
-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
-Particular law enacted by a legislative body.-United States Congress / Federal Government-State legislatures / State Government
Statutory law - statutes
Inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens.
Police power
-Body of law created by federal and state administrative agencies.-Implements their power and duties.-Rules, regulations, orders, and decisions.
Administrative law
Appointed governmental body charged with implementing particular legislation and have rule making authority.
Administrative agency
OSHA is an example of
Funeral Administrative Agencies
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
EXAMPLES of Police Power in Mortuary Law
Licensure requirements Health Standards Business Operations
Law passed by a municipal governing body.Village, town, cityRelated to matters not already covered by federal or state law.
Ordinance
Municipal Laws in Mortuary Law…
Zoning- Commercial vs. Residential
Building Code- Electrical; Plumbing; etc.Safety Code- Exits signs, Emergency Evacuation Routes
Court decisions that established precedent principles.Determines the “constitutionality” of a statute, rule, or regulation.
Case law
Determines if the Supreme Court will hear the case.
Writ of certiorari
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
Sources of mortuary law
State laws and regulations
Case law and stare decisis
Common law
Federal 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
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 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
Body of a human being (identified or unidentified)Deprived of lifeNot yet entirely disintegrated
Dead human body
Antiquated term for dead human bodySynonymous term used for dead bodyMust also meet all 3 conditions to be legally dead
Corpse
Would dust of a “long dead body” be classified as a dead human body?
NO
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)
Total and irreversible cessation of brain function.As indicated by a flat EEG reading.
Brain death
electroencephalogram abbreviated is
EEG
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
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
UAGA stands for
Uniform Anatomical Gift Act
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.
Property and property rights in a dead human body.
No property theory
Property theory
Quasi-property theory
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)
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
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
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
police power of the government requires proper ___________________________________
disposition of a dead human body.
“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
Methods of final disposition
Burial 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.CryptMausoleumBuilding dedicated for this purposeIndividual or family structures
Entombment
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
Inurment - cremains placed in an urn.Placed in a niche in a columbarium.Buried in a cemetery.Scattered.
Disposition of cremains
Scattering gardenCemeteryOpen seaThree nautical miles from shoreline. (6,080 ft)Must be reported to Environmental Protection Agency (EPA)
Scattering cremains
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)
All states have ________ when concerning anatomical donation.Which is a legal requirement for disposition of a dead human body.
statutes
Community standards for a decent burial
Protection of public health
Public morality and common decency
Respect for the dead
Placing cremated remains in an Urn.Placing cremated remains in a Niche in a Columbarium.
Inurnment
Funeral homes are liable for the actions of ________________ crematories, so they must do their ______________________.
3rd party
Due diligence
Dead human body intended solely for scientific study and dissection.
Cadaver
all states have statutes allowing the decedent or his/her survivors to ______________________
make a gift to medical science.
Law permitting a person of legal age and sound mind to give all or any part of his/her body.
Uniform Anatomical Gift Act.
When does the Uniform Anatomical Gift Act take effect?
upon his/her death.Or gives the right to another.
requirements for a decent burial/final disposition
community standards
considerations
statutes
this is an obligation…
duty
this is a privilege
right
primary duty of final disposition rest with the…
householder
surviving spouse
next of kin
one who owns or controls real estate where death occurs. Duty is to notify the proper authorities
householder
widow (female) or widower (male)NOT a blood relative
surviving spouse
one’s relatives collectively- Referring to BLOOD relationship or adopted into the family.
next of kin
Legally, a surviving spouse is NOT considered…
kin/next of kin
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.
some states do REQUIRE the signature of both…
Parents
Siblings
The order of next of kin is based on…
general rule of priority or statute of descent & distribution
The general rule of priority or statute of descent & distribution is NOT…
an iron clad rule in all states
The duty of burial rests with the…
spouse or next-of-kin
secondary duty of final disposition falls upon…
Public authorities such as:
State Or other governmental body or authority
possession and control of the body attaches at the….
moment of death
primary right of final disposition and general rule of priority
wishes of decedent surviving spouse next of kin personal representative guardian volunteer funeral director
Considerations of WISHES OF DECEDENT…
Pre-need/if written
Will
Other document or declarations -Written or Orally
making funeral arrangements in advance with no payment
pre-planned
making funeral arrangements in advance with payment
pre-funded
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 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.
Primary right of final disposition generally goes to…
Surviving spouse
Widow/Widower
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
If a child is legally adopted they are ______________
considered KIN
person who represents and settles the estate of deceased person(s)
personal representative
individual appointed by the will to carry out its provisions and settle the estate
executor/ executrix
types of personal representatives
executor
executrix
administrator
administratrix
An Executor is a____________
male
anyone who agrees to assume the right of final disposition.
volunteer such as:
Friend
Neighbor
Co-worker
if the family doesn’t act concerning secondary right of final disposition then ___________ will step in.
Government:
EX: State County (Texas) Local
An Executrix is a ___________
female
Individual appointed by the probate court to settle an estate.
Administrator/Administratrix
Who will step up concerning Secondary Right of final disposition ,as far as government, is contigient on….
the jurisdiction when and where death occurred
funeral director undertaking the funeral has lawful rights from what two sources….
- Those granted and imposed by statutes, ordinances, and regulations. - Licensing regulations allowing the FD to practice profession
- Those arising from the funeral contract - Rights authorized by the person with paramount right of disposition.
An Administrator is a _________
male
An Administratrix is a _________
female
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
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
A funeral director should continue to ____________________ until a family reaches an agreement.
offer options
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
There should be a ________________between the funeral director and the individual with the right of disposition. It is REQUIRED.
funeral contract
“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
What type of contract is a First Call?
Implied
What type of contract is a statement of funeral goods and services selected?
Express
if a person dies testate, they__________
had a will
if they die intestate, they ____________
did not have a will
mortuary law is also known as Funeral ____________Law
service
mortuary law is also known as _______________ law.
funeral
FTC is an example of…….
funeral administrative agencies
TFSC- Texas Funeral Service Commission is an example of……
funeral administrative agencies
Would bones of a skeleton be classified as a dead human body?
no
Would a partially dismembered body be classified as a dead human body?
YES
must meet all three of these conditions to be “legally” dead.
- body of human
- deprived of life
- not yet entirely disintegrated
“Property is often conceptualized as a__________________
bundle of rights
The ‘bundle of rights’ which have been associated with property include the right to _____________.
possess use exclude profit dispose
Dead human body is the __________of the surviving family member with a _____________.
quasi-property “bundle of rights.”
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:
three nautical miles from shoreline must be reported to environmental protection agency (EPA)
burial at open sea
provided under maritime lawprotect health and safety of crew and passengers
death and burial at sea
Receiving institution of a cadaver has the right to _________________refuse the donation.
refuse the donation.
Anyone who agrees to assume the right of final disposition.
Volunteer
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
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
Issued by local municipalities.Grant permission to use a building or facility for a special or specified use or purpose.
Special use permits
requirements for construction, maintenance, operation, occupancy, use, and appearance of the building.
Building codes
a FIXED PLACE of business used in the care and preparation for the funeral and/or disposition of dead human bodies.
funeral establishment
the _________________ of the state and______________authorizes the licensing and regulating of __________________ and funeral establishments…
police power….local government……funeral directors
Funeral establishment RESTRICTIONS
Ordinances……..Building codes………Restrictive covenants……..Nuisance……..Regulatory Specifications
municipality zonings…
Residential……..Commercial
In some municipalities there may be either __________ or _____________________
No zoning………..Combination of Residential & Commercial
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
allows existing non-conforming uses to stay with restrictions
Grand-father clause
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
regulations which control requirements for business and residential buildings
building codes
building codes regard…
fire & safety………maintenance & operation……..occupancy & use……appearance
Provisions in a deed limiting the use of property and prohibiting certain uses.
restrictive covenants
example of restrictive covenants
deed restrictions
contracts dealing with transfer of ownership…seller agrees not to compete.
covenants not to compete
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
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
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
Funeral homes are not _______
nuisance per se
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
A funeral home may become a _______________________
nuisance in fact
regulatory specifications….
Federal standards……State standards…….Health codes
types of federal administrations
OSHA…..EPA…..ADA
Rules related to embalming procedures, funeral home personnel protection and safety.
OSHA
Rules concerning the use and control of formaldehyde and chemicals used by embalmers.
EPA
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
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)
EPA stands for…
environmental protection agency
The ADA require these things on any building built BEFORE January 26,1993,
- ramps, widen doors, cut curbs, put in handicap parking…..
- provide public access to areas where goods and services are provided…..
- provide public access to restrooms i.e., toilet seats, mirrors, sinks, towel dispensers and grab bars……
- any other modifications i.e., water fountains, phones, etc,.
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
It withholding services occur…
It is a violation of the ADA……Family can file action under ADA.
withholding services is ENFORCED by….
U.S. Attorney General……Private individuals
penalties for WITHHOLDING SERVICES
- Remove the violation…..2. First violation is $50,000…..3. Subsequent violations is $100,000
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
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.
area of ground set aside and dedicated for the final disposition of dead human bodies
cemetery
______________regulates cemeteries as of ____________________
Texas Funeral Service Commission ……..September 2003
_______________ cemeteries are regulated under the ________________________
Perpetual……Department of banking
classifications of cemeteries
Public…..Private…..National
- 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
Types of ownership and operation of public cemetery
- Private individual, company, or corporation….2. Local municipality, such as village, town, city, or county
accessible for burial only by those who are granted permission
private cemetery
types of ownership of private cemetery
- Private individual, company, or NON-PROFIT corporation….2. Restrictions for religious beliefs and/or customs
Cemetery created by an act of the US Congress
national cemetery
national cemetery is typically restricted to eligible vets of what armed forces?
Army….Navy….Air force….Marines….Coast Guard
Eligible dependents in National cemetery
SpouseMinor children
in a national cemetery burial is…
next available & spouses are stacked
eligibility for national cemetery should be…
established prior to interment….
what is required for burial in National cemetery
Proof of service in military….Veteran’s service record (VA form DD-214)…Discharge certificate
discharge from military should be…
under conditions OTHER THAN dishonarable
cemetery location is based on…
police power to protect public health……..eminent domain…….just compensation to property owners…..zoning ordinances
inherent power of a government to take private property for public use.
eminent domain
zoning ordinances for cemeteries is the same as ______________, because they are NOT allowed in __________.
funeral homes……residential areas
a cemetery is NOT a___________________
nuisance per se
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….
rules and regulations of cemeteries includes both….
state & local rules & regulations
discrimination concerning cemeteries
- restrictions on interment….2. religious beliefs and/or customs3. military service4. more restrictions on private cemeteries5. differences in ownership and/or rules & regulations
rights of ownership concerning plots are considered ________________ even though it is _______________ used for a specific purpose.
personal property…..real estate
plots require…
license for interment….right of interment….use of an OBC…marker or monument (as allowed by cemetery)
plot owners have the right to…..
have plot cared for & protected…..perpetual or endowed care……sell the plot
in order to sell a plot the plot owner must ….
meet cemetery requirements….obtain permission from cemetery owner
Right to Inter is subject to….
cemetery rules….use of OBC…..specific types of markers (flat or uprights)
desecration of graves is….
a criminal offense.
graves are based on….
high regard….respect…morality
public sentiment dictates that cemetery is ______________ and should not be disturbed. Generally speaking that is how the LAW sees it also
sacred ground
a grave should only be disturbed if there is…..
compelling reasons
once a cemetery ______________
always a cemetery
typically disinterments are looked at _____________________, unless there is a compelling reason..
Unfavorable
Removal of a human corpse previously buried in the earth.Removal of entombed body or cremains from their repository.
Disinterment
disinterment also means…
exhumation
exhumation is typically….
not permitted
exhumation is typically not permitted due to …..
respect for human desire to not have remains disturbed…sentiment of survivors….protection of public health
disinterment may be permitted for…
public interest…private reasons….contractual purposes
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
Second ground upon which disinterment may be authorized by law……..Disinterment for purpose of reinterment in another location.
private reasons for disinterment
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
private reasons for exhumation is a matter of ________________ in most states or ______________________
statutory regulation……case law
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.
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
contractual purposes of disinterment
Mentioned previously……Affirming/disaffirming cause of death……Payments of benefits under an insurance policy……..Prevent insurance fraud
right of disinterment may be __________________________ and applies to ______________________
governed by state statute……disinterment for public & private reasons
right to control rests with….
State when required for evidence in criminal trial….Spouse or next of kin in most other cases
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
disinterment permits must be obtained from _________________
proper authorities
in Texas, written order (permit) must be from _______________ and obtained by the _________________
state registrar or designee……..funeral director
four parts of necessary permits….
state registrar….local registrar…..funeral director…..cemetery
all four parts are required unless….
re-interment is in same cemetery
if done without proper authorization, disinterment will be_________________
in violation under statute and common law
improper disinterment is usually considered…
simple larceny
Some exceptions are allowed to zoning ordinances for professions such as doctors & dentists. These permits are called?
Special use permits
Funeral directing is considered a _____________ not a ______________.
Business…profession
Funeral directing would not qualify for …..
special use permits
model law enacted to achieve uniformity in probate proceedings throughout the United States, not adopted by all states
uniform probate code (UPC)
act or process of proving a will
probate
court having jurisdiction over estates
probate court
a gift of REAL ESTATE made by will
devise
(sets the gift under a will) – One who inherits real estate under a will
devisee
a gift of PERSONAL PROPERTY under a will
bequest or legacy
(gets stuff by inheritance of personal property under will) – One who inherits personal property under a will.
legatee
an instrument executed with required formality by a person-making disposition of his/her property (estate) to take effect upon his/her death.
will
Requirements for Will:
Legal Age / Testamentary Capacity / Formaility
“legal adult”, age 18 or older, in most states
legal age
Testator / Testatrix must know the intent, know the nature and extent of estate, know natural object of bounty
Testamentary Capacity
generous gift, given freely
bounty
real and/or personal property of a deceased person
estate
Will Formalities:
In writing….Signed by person who makes a willWitnessed by two or more disinterested witnessesUsually signed in presence of each other
person who makes a will…
TESTATOR/TESTATRIX
Special kinds of Wills –
Nuncupative / Holographic / Soldiers & Sailors
an oral will, dictated by testator/trix during last illness, before appropriate witnesses, disposes of personal property, afterwards written down.
Nuncupative will
a type of will; hand-written by testator/trix, legal if signed by appropriate witnesses
Holographic will
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
Amendments or Revocation of Wills by
By act of Testator / Operation of the Law / Codicil
deliberately destroying a will, prior to death constitutes
revocation
an addition or amendment of a LAST WILL and Testament executed with the same formality as the will
Codicil
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.
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
a distribution problem under the will– Extinction or withdrawal of legacy by testator’s act.
ademption
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.
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)
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)
Distribution of Property state or condition of dying without having made a will.
INTESTACY (intestate)
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
spouse, next of kin, if no spouse or children, grandchildren, parents, siblings, grandparents, aunts, or uncles.
DISTRIBUTION OF PROPERTY-TITLE BY DESCENT
Distribution of Property – forfeiture of decedent’s property to the state in absence of heirs.
ESCHEAT
appointment of Personal Representative, which is the person who represents and settles the estate of deceased persons
administration of an estate
Personal Representatives; male or female, appointed by the will to carry out provisions thereof and settle the estate.
EXECUTOR / EXECUTRIX
Personal Representatives; male or female appointed by the court to settle an estate, estate representation due to intestacy.
ADMINISTRATOR /ADMINISTRATRIX
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.
unable to pay debts of decedent and / or the estate
insolvent estate
PRIORITY OF CLAIMS AGAINST AND ESTATE IN INTESTACY
Funeral Expenses (preferred claim)…… Administration expenses…….Taxes………Last Illness expenses………all other expenses.
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
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
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
written documents that governs, withholding, and withdrawal of life – sustaining treatment, for individuals with incurable or irreversible condition that will cause death
living will
