Mortuary Law & Ethics

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Legal age

Varies from state to state

Funeral homes w/ ________ or more employees fall under the coverage of the employment-related provisions of the ADA

15

The revocation of a will may occur by

Operation of law, Codicil, Act of the Testator

To protect the funeral home from liability, it is imperative that the FD obtain _____to cremate the body

Written authorization

An instrument in writing authorizing one person to do anything for the principal

General Power of Attorney

An addition or amendment of a last will & testament executed w/ the same formality of the will

Codicil

Addition or corrections to a will

Amendments

Under the _____ of the OSHA, the employer must furnish each employee employment and a place of emloyment free from recognized hazards

General Duty Clause

The method of dividing an estate where a class of group of descendants take the share which their deceases would have been entitled to had their deceased survived

Per Stirpes

Order of intestate succession

Surviving Spouse, Children, Surviving Parents

A man appointed by the court to settle the estate

Administrator

Power of Attorney may be

Durable, General, Springing

An instrument in writing authorizing one person to act as an agent for another affective only upon a certain event occurring

Springing Power of Attorney

Get signed by all who may have any say in the disposition of the deceases - even if they do not have the primary right and duty of disposal

Cremation Authorization

Refers to the physical and mental condition of a personal making a will

Testamentary Capacity

The reduction of a dead human body to inorganic bone fragments by intense heat in a specifically designed retort or chamber

Cremation

One of the unethical practices that has been the subject of many of the cremation liability cases is

Comingling of Remains

_____ is the single most serous civil misdeeds that a funeral home can commit

Cremation of the wrong body

In those states in which it is permitted, it is valid only if made during the maker's final illness and in the presence of witnesses

Oral Will

A soldiers and sailor will is a nuncupative will, informal in nature, in which a soldier in the field or sailor at sea may dispose of

Personal Property only

One who inherits

Heir

Do not throw away, dump, discard or scatter, but store

Unclaimed Cremated Remains

One who inherits real estate under a will

Devisee

Like a valid contract, a valid will must always be

For Legal Purpose

Training records, under the Bloodborne Pathogen Standard, must be kept _____ years from the date in which the training occurred and include the dates of the training sessions, the contents or summary of the training sessions, names and qualifications of the person conduction the training and names and job titles of all persons attending the sessions

3

While all states have their own laws describing the requirements of a valid will, most include

Testamentary Capacity, Freedom from Duress, Freedom from Fraud, Freedom from Undue Influence, In Writing, Witnesses

The _____ is up to the family and in accordance with the law, if any

Disposition of Cremated Remains

The Fair Labor Standards Act covers WOTF areas of employment law that are important to funeral service

Minimum Wage, Overtime Compensation, Equal Pay

Duties of the personal Representative

Inventory, Pay Claims, File and Pay Tax

A proportional reduction of a legacy under will when assets out of which such legacy are payable are not sufficient to pay it in full

Abatement

In most states, a will must be signed in the presences of _____, depending on the state

two or three witnesses

One who inherits REAL ESTATE under a will

Devisee

The cancellation of an instrument, act, license, or promise

Revocation

One type of special will is that made by a person on active duty in the Armed Forces. It may be oral or written

Soldiers and Sailors Will

A method of dividing an estate by which an equal share is given to each of a number of persons, all of whom stand in equal degree to the decedent

Per Capita

The state or condition of dying w/out having made a will

Intestacy

An oral will

Nuncupative Will

To prevent the cremation of the wrong body, _____ is of the utmost importance

Identification

A man appointed in the will to carry out the provisions thereof and settle the estate

Executor

A gift of personal property by will

Legacy, Bequest

A will written completely in the maker's handwriting and then signed and dates

Holographic Will

The PROving of a will

PRObate

Forfeiture of a decedent's property to the state in the absence of heirs

Escheat

A will written entirely by the testator with his own hand

Holographic

A federal statue that governs express and implied warranties

Magnuson-Moss Act

A legal document directing how real and personal property should be distributed after the death of the person making the document

Will

An instrument in writing authorizing one person to act as agent for another

Power of Attorney

Generally, the purpose of the employment provisions of the _____ is to prohibit employers from discriminating against disabled individuals in all phases of the employment relationship

ADA

Cremation of the wrong body, wrong, cremated remains returned to the family is considered a

Tort

Insolvent estate (state statute controls priority of claims) - usual priority of claims

Funeral Expense, Administration Expense, Taxes, Last Illness

Be used to make way for a new highway or some other structure that will benefit the majority of the public

Eminent Domain Proceeding

A _____ is a wrongful act committed by one person against another person or their property

Tort

Case Law has established that primary liability for funeral expenses is upon the

Estate

In WOTF cases have claims against funeral directors traditionally allowed for mental anguish. Cases involving a/n

Outrageous Act, Intentional Act, Act Involving Gross Negligence

The failure to perform a manifest duty or performing that duty with reckless disregard of the consequences as affecting the life or property of another

Gross Negligent Act

WOTF might impose restrictions on funeral establishments

Ordinances, Building Codes, Restrictive Covenants (Dead Restrictions), Covenants Not to Compete, Nuisance Laws

Failure to perform any and all obligations specified or implied in a contract

Breach

Failure to perform a manifest duty or performing that act with TOTAL disregard for the consequences of that act

Intentional Act

The performance of an act with COMPLETE disregard for proper conduct that transcend the bounds of common decency

Outrageous Act

WOTF might be considered desecration of a grave

Vandalism, Sacrilege, Defilement

WOTF are types of contracts recognized at law relative to the funeral bill

Implied, Express, Quasi

A Funeral Director is liable for the actions of _____ if he or she holds out such cars and drivers as his or her own

Livery Drivers

A landowner's use of property that interferes the pubic or another landowner's use of property

Nuisance

WOTF are duties recognized by the law that impact directly on the Funeral Director

Duty not to interfere with the right of burial (disposition), Duty of exercising reasonable care in regard to the body and the funeral home premises

For a Covenant Not to Compete to be valid at law the terms must be reasonable with respect to

Geographical Area, Length of time of Restriction, Scope of Activity

Private reasons for disinterment might include

Consolidate burial plot of family members at cemetery, Disinterment and reinterment at another place, To recover improperly buried valuables

Act, occupations or structures that are nuisances at all times and under all circumstances

Nuisance per se

The degree of the duty of care a landowner owes to a person on the landowner's property depends on the status of the persons. Put these visitors improper order of care from highest level to lowest

Business Visitor, Social Guest, Trespassor

WOTF cemeteries may discriminate

Private

Written premise, or obligation; promise made by the grantor in a warranty deed or as terms of employment such as not to compete

Covenant

The term _____(from Greek; sleeping place) implies that the land is specifically designated as a burying ground

Cemetery

A law passed by a municipality by virtue of the police that regulates and prescribes the kind of building, residences, or business that shall be built and used in different parts of the municipality

Zoning Laws

Express Contracts employed in funeral service may be

Pre-need, At Need

The funeral home is typically not liable for the actions of volunteer drivers because

They are not an agent of the funeral director, The driver had not been drinking

Embalming is not required by law

In any state, U.S. possession or the Dist. Of Columbia, Except in certain special cases

Typically, a driver is liable for his or her own torts provided

No agency has been established with the funeral home

WOTF is true of agent drivers

The Funeral Director has liability & Control

WOTF agencies might impose Federal standards on the regulatory specifications on the operation of funeral homes

OSHA, EPA, ADA

Some municipalities have restrictions on funeral processions. These restrictions may include

Police or other escort required, Marking of the cars required, Number of cars allowed

It is well-established that the state has power to seek an exhumation for the purposes of gathering evidence for a/n

Criminal or Civil Case

When is embalming required by law?

Public Visitation (other than immediate family members), Transportation across state or county lines, Death due to certain communicate diseases, Body to be held more than 24 hrs. w/out benefit of refrigeration

When an individual buys a cemetery plot they

Acquire License/NOT REAL Property

A funeral home owes the duty of _____ to each invitee to the funeral home to maintain the premises in a/n _____ safe condition for its intended use

Care - reasonable

Items may be deemed necessary for a funeral based upon

Custom, Religion, Fraternal Requirements, Legal Requirements, Cemetery Requirements

There must be a reasonable assumption that information can be obtained for disinterment to be ordered in the

Public Interest

A straight forward contract - I promise to pay - may be oral or written

Express Contract

The location of a cemetery may be determined by

Zoning Ordinances, Eminent Domain

Bodies have been disinterred in the PUBLIC interest where they may constitute a threat to

Public Health

The removal of a human remains previously buried in the earth

Exhumation, Disinterment

A place in which dead bodies and cremated remains are buried

Cemetery

A covenant not to compete is a permissible restraint of trade as long as

It is a part of a valid contract for employment or sale of a business, Terms are reasonable

WOTF may be allowable cost items of a funeral

Embalming, Professional Service, Facilities, Casket, Clothing, Transportation, Cemetery or Cremation Cost, Headstone or Monument, Flowers, Newspaper Notices, Outer Burial Container

At which of these particular premises would the funeral director be expected to offer the highest level of care

Funeral Home

WOTF might the funeral home be able to look to for the payment of the funeral bill

The estate of the decedent, Surviving Spouse, Parent of a minor, the Gov't

Act, occupations or structures that are not nuisances per se, but many become nuisance by reason of the location or manner in which is operated

Nuisance in fact

Which is the proper order for imposing liability for family necessities

Spouse for spouse, Parents for minor &/or dependent children, Volunteer, Public Authorities

This type of contract is not a contract at all, but one imposed by law for a need that the individual is unable to contract for him or herself

Quasi Contract

Type of contract imposed by law on an accident victim needing medical attention, but the victim is unable to contract for themselves

Quasi Contract

Cemeteries may be classified as

National, Private, Public

WOTF may the court use to place limitations on the funeral bill

Size of Estate, Status in Life, Reasonableness of charges, Funeral Director's knowledge of decedents financial condition, Local or Ethnic customs

These are interrelated, but they are completely separate and distinct from one another. Frequently, they may be vested in one person or distributed among as many as three different people

The right and duty of final Disposition

A Person engaged in learning the Practice of funeral directing and or embalming under instruction, direction or personal supervision of a fully licensed funeral director and or embalmer

Apprentice, Intern, Resident

The reduction of the body to inorganic bone fragments by intense heat in a specifically designed retort or chamber

Cremation

WOTF has historically been a concept of property rights in a dead human body

Property Theory, Quasi Property Theory & No Property Theory

Currently accepted view of the property rights concerning a deceased human body in the United States of America

Quasi Property Theory

Under modern day business law, all states have adopted the _____, although Louisiana has adopted on portions of it

Uniform Comercial Code

Most of the definitions of death from among the various states no contain the word

Irreversible

Merchant Law dating back many thousands of years evolved into modern day

Business Law

The inherent right of the governmental bodies (state and federal freely elected by the people) to make reasonable laws to protect the safety, health, and general welfare of its citizens

Police Power

The physical possession of the dead human body

Actual Custody

An agency put in place by the various states to over see the activities of the specialized professions serving the citizens of that state

State Boards

May be actual or constructive

Custody of the body

In most cases of _____ the body becomes a cadaver for anatomical study

Donation

The "conclusive" performance of services with respect to the dead human body

Final Disposition

A law permitting a person of legal age and sound mind to give all or any part of his/her body to take effect upon his/her death or gives that right to another

Uniform Anatomical Gift Act

Laws enacted by Congress of the United States of America are _____ laws

Federal

An act of police power held by the states in an effort to protect the citizens of that state from unknowledgeable, untrained or unscrupulous individuals _____ laws

Licensure

Funeral Service law is sometimes referred to as

Mortuary Jurisprudence

A federal statute prohibiting discrimination against the disabled in employment, public transportation, telecommunications services and public accommodations and services operated by private entities

ADA (American Disability Act)

A policy of courts to stand by a precedent and apply it to all future cases where the facts are substantially the same

Stare Decisis

The body of a dead human being deprived of life, but not yet entirely disintegrated

a dead human body at law

Under federal law

Bills are passed

A third party with actual custody (like a funeral director) becomes a _____ and the legal protector of the dead human body from the time of removal until final disposition

Custodian

WOTF would make the wishes of the decedent known

Pre-Arrangements, Other Declarations & Will

WOTF are rules to be followed after a divorce in today's society

Kids are NEVER divorced from parents (but may become estranged), The custodial parent has prior rights in controlling a child's funeral, Divorce only affects spouses( Not their relatives)

Place in their proper order (1st, 2nd, 3rd) the following degrees of kinship

Adult Children, Surviving parent/s (absent ANY ADULT children),
Siblings (brothers/sisters - absent ANY adult children),
Aunts/Uncles

WOTF may be considered as sources of law that could impact funeral home operations

Constitution of U.S., Statutes, Administrative Agencies, Ordinances, Case Law, Common Law

A person, properly licensed, who disinfects, preserves, or restores a dead human bodies

Embalmer

These practices are under the control of the various governmental agencies in an effort to insure that there is fair and equitable treatment of all individuals

Business operations

A Governmental agency with environmental protection, regulation and enforcement authority

EPA (Environmental Protection Agency)

Absent any wishes from the decedent and any kin, the secondary right to control the funeral would fall to the

County, Local Government (City/Town/Village), State

In order to be considered a dead human being, the remains must be

Recognizable as those of a human

Burial in the ground

Interment

Laws enacted by the various STATE LEGISLATURES are _____ laws

State

The total and IRREVERSIBLE cessation of brain function as indicated by the flat EEG reading

Brain Death

A governmental agency with the responsibility for regulation and enforcement of safety and health matters for most employees

OSHA

The right control of the funeral for this person is absolute no matter how many ex-spouses, or adult children there are and in the absences of written direction from the deceased

Surviving Spouse

When one spouse kills the other, this is the _____ which would deny any rights to control the funeral

Ultimate Estrangement

Laws enacted by legislative bodies (both Federal & state) are called

Statutes

The concept that the dead human body had _____ and belonged to the person who, by marriage or kinship, had the right and duty of disposition

Property Rights

A dead human body at law

Corpse

WOTF are examples of agencies (may be federal & or state)

FTC, OSHA, EPA, ADA

Under Canon Law, the body was held to belong to the Church or to God and therefore had ____ belonging to any individual

No Property Rights

The only way that a spouse may be defeated is express directions of the decedent, or

Estrangement

Case Law had made it clear that the right to _____ has a definite order or preference

Control final disposition

Laws passed by municipal governing bodies (cities/towns/villages)

Ordinances

Where a party had a right to acquire possession although another party has actual possession

Constructive Custody

An agency of the federal government created in 1914 to promote free and fair competition by prevention of trades restraints, price fixing, and other unfair methods of competition

FTC (Federal Trade Commission)

A judicial appointment of a person to administer the affairs of another person who is incompetent the virtue of age or legal disability

Guardian

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