(Q3) Introduction to Funeral Service Law: Basic Rules,Legal Status, Disposition (pp. 4-7)

Question 1

Sources of Funeral Service/Mortuary Law

Answer 1

1.) State statutes and Local Ordinances (and some federal regulations)
2.) Common Law (Laws the Pilgrims brought from England)
3.) Case Law (Decisions of the Federal and State Appellate Courts)
4.) Administrative Agency Laws, Rules, and Regulations
5.) Contract Law
6.) State Department of Professional Regulation Rules
7.) Probate Law
* Statutes and Contract Law are the two primary sources for funeral homes, but may rely on others.

Question 2

What are the primary sources of law for funeral homes?

Answer 2

• Statutes and Contract Law are the two primary sources for funeral homes, but may rely on others.

Question 3

What is the definition of a dead body?

Answer 3

• A human being deprived of life; one who is deceased. AND
• Not entirely disintegrated: cremated or composted remains are considered personal property and covered by property law

Question 4

What is the definition of death?

Answer 4

1.) The irreversible cessation of total brain function according to the usual standards of the medical profession.
2.)The irreversible cessation of heartbeat and breath (cardiopulmonary death)

Question 5

Mortuary Law

Answer 5

The study of those rules that particularly relate to the disposition of a dead human being

Question 6

Tests for Death

Answer 6

1.) Expert (Stethoscope, ophthalmoscope, electroencephalogram, electrocardiogram, and evoked response)
2.) Inexpert (Ligature test, Ammonia injection test, Pulse, Listening for respiration or heartbeat, and Evoked response)
- Most state laws mandate that an embalmer must test for death before beginning the embalming procedure

Question 7

Legal Status of a Dead Body

Answer 7

1.) English Ecclesiastical Law
2.) United States Law (Quasi Property Theory)

Question 8

English Ecclesiastical Law

Answer 8

• A type of legal status of a dead body
• No Property Theory: (not real or personal property) Body was the property of the church and had right of burial

Question 9

United States Law: Quasi Property Theory

Answer 9

• Derived from the idea that a body is not personal property, but family has a right to give that person a decent burial.
• Quasi in Latin means “almost “or “resembling, but not quite”
• This is what the dead are considered today in the U.S

Question 10

What happens if one is wrongfully withholding a dead body? (Ex. funeral home holds body until payment)

Answer 10

• File a suit in equity for an injunction (permanent order) or restraining order (temporary order)

Question 11

Do you have rights once you’re deceased?

Answer 11

Only the right to a ‘decent’ burial/disposition

Question 12

Case of Regina v. Stewart

Answer 12

• English Common Law
• States that everyone has a right to a decent burial
• This law gave rise to Quasi Property Theory.

Question 13

Why is it important to dispose of the deceased?

Answer 13

• Necessity: to protect the public health
• (And Individual religious and cultural considerations/regulations)

Question 14

Methods of Disposition

Answer 14

• Burial (Interment,/Inurnment, Entombment, Green Burial)
• Cremation (most sanitary)
• Donation to Research/University (Anatomical Gift Act)
• Alkaline Hydrolysis
• Burial at Sea

Question 15

What departments govern burials at sea?

Answer 15

All burials at sea are governed by EPA and U.S. Coast Guard

Question 16

Burial at Sea for Military Personnel (Coast Guard Regulations for Burial at Sea)

Answer 16

1) Must be an active-duty member, their dependents, reservists, or retirees
2.) death certificate
3.) discharge papers
4.) application to Coast Guard
5.) Person authorized to direct disposition must request the burial by a written authorization form, which they can get from the Coast Guard Office in San Pedro, California.

Question 17

EPA Requirements for Burial at Sea

Answer 17

1. Three nautical miles from shore
2. 600 fathoms deep
3. biodegradable material
4. must notify EPA within 30 days from the event
5. death certificate
6. discharge papers

Question 18

Suit in Replevin

Answer 18

• Proper cause of action to recover personal property
• not suitable for the deceased because they’re not considered personal property