Mortuary Law CH-3 Rights of parties undertaking disposition

Joint and several (individual) liability

Directly above the signature line designated for the signatures of the persons making the funeral arrangements, the funeral home should include a statement similar to the one that follows: "I/we the undersigned, severally and jointly, hereby authorize the above funeral contract and promise to make payment thereof". With this statement the funeral home is holding all persons signing the contract jointly and individually liable for the payment of the funeral bill

Cash transaction

Most funeral homes stipulate in the contract that the sale in a cash transaction and not a credit transaction. -Credit transactions involve many disclosures, which need not be made if the funeral home does not qualify as a creditor as defined in the Truth-in-Lending provision

Itemization

The FTC Funeral Rule requires price itemization of the components of the funeral service. (i.e the good and service purchased.) -Some states also have statutes or rules requiring price itemizations of funeral contracts. Therefore, the majority of the contract will spell out the goods and services purchased by the consumer

Right to Control the Funeral

The individual undertaking disposition has the power to exercise control over all matters relating to the funeral. -Free to choose whether to use a funeral home, which funeral home, what type of service, merchandise, and method of disposition. -May arrange the time and place of burial convenient to the individual and disregard the feelings of others. In this respect, the individual is subject only to the regulations and rules of the crematory and cemetery -The right to arrange the disposition is an *exclusive right*

Actual possession

Where the body is *physically* within his custody. The body is at home with the next of kin

Constructive possession

Where the body is *physically in custody of another*. The body is at a hospital or mortuary

Collection fees

A contract may stipulate that in the event of default, the undersigned (Person or persons making the funeral arrangements) agree to pay all the costs of collection including reasonable attorney's fees. State law should be consulted to insure that a collection provision is permissible

Right of Custody

A dead body is not property in the ordinary sense of the word, but it is a tangible object over which dominion is granted to the party undertaking the disposition The person exercising the right of disposition is granted the right to take possession and control of the body. The possession may be actual or constructive -Custody of a dead body may be had only for the purpose of disposing of it in a lawful manner -Possession and control of the body attaches from the moment of death and it may be continued for a *reasonable length of time.*

Disclaimer or warrenties

A funeral contract may include a disclaimer of the implied warranties of merchantability and fitness for a particular purpose. These implied warranties basically means that the casket and other goods sold will fulfill their intended uses, e.g that the casket will be sufficiently strong to hold the body and allow the body to be transported. If the bottom of the casket falls out, the warranty has been breached and the funeral director will be liable for damages. -To avoid liability for implied warranties, funeral directors may disclaim the warranties.

Late payment charge or penalty charge

A funeral home may charge this or a penalty charge for unanticipated late payment. If this charge is imposed, state law should be reviewed to determine if any ceiling to the penalty applies. Example: "This is a CASH transaction due in full on (due date) and without exception becomes past due and delinquent on the due date. A penalty of ___% per month (_____% Per annum) on the unpaid balance for the unanticipated late payment will be charged effective (date)"

Exclusive right of arranging disposition

*If an individual has the paramount right of disposition, he or she is not compelled by law to share it with others.* This being the case, the individual may elect to hold a private funeral and invite or exclude those whom he or she chooses. The courts have made clear that the right to exclude others from the funeral extends even to services conducted in cemeteries. -If the next of kin wishes to exclude others from a visitation or a funeral, the funeral director is advised to impose certain conditions on the next of kin. If there is an obituary, it should note that the funeral service is *private*. No announcement of the time or place of the funeral service should be made. -Funeral director should also have the NOK sign an indemnification form to cover any personal injury or property damage in the event the exclusion leads to violence -Funeral director should require the NOK to hire a security service to exclude uninvited individuals from the services

Funeral contract: Disclosures

In addition to the disclosures required by the FTC (chapter 14) and the Truth-in-Lending provisions (Chapter 15), some states have laws and regulations that certain written disclosures must be given to the person making the funeral arrangements. -Generally these disclosures are as follows: (1) The price of the funeral and a list of all services and merchandise included in the funeral (2) The price of each supplemental item of service or merchandise (3) a list of the cash advances made by the funeral director on behalf of the person making the arrangements (4) the method of payment -In states with these requirements, the funeral director may not simply enter into an oral funeral contract with the other party, but is required to give a written memorandum of the transaction. Written contracts are more legally sound, is explicit as to method of payment, is easier to prove in the case of default by the purchaser, and is proof of a valid contract

Estate liability

In many states the primary liability for payment of a funeral bill is the estate of the decedent (CH6). A funeral contract should include a statement that the person signing the contract is liable for payment of the funeral contract in addition to the liability imposed by the law upon the estate. By doing this, the consumer signing the contract will be held responsible for payment in the even the estate is insolvent. Also, funeral homes charge a late payment fee as stipulated in the contract even though the estate is liable or the payment of the contract. This charge could be substantial because many times payment is held up for several months on account of the administration of the estate

Funeral contract: In general

Is an agreement between a funeral director and another competent party of legal age , whereby the consumer purchases and the funeral director agrees to furnish merchandise and services. -May be written or oral -May be between the funeral home and the (1) decedent's estate, (2) family or (3) an unrelated third party. -*The decedent's estate is generally responsible for the decedent's funeral bill, it is an implied party to the contract* -Funeral directors will often have the next of kin or surviving spouse execute the funeral contract also to show that the funeral home has authority to conduct the contracted services and to provide another source of payment in the event the estate is insolvent. -Third parties that are unrelated to the decedent may also arrange for the funeral, such as employers, armed forces, or governmental agencies.

Funeral Director with Right of Disposition

The lawful right of the funeral director undertaking a funeral are primarily derived from two sources. There are those rights which are granted and imposed by statute and those arising from funeral contract. -There are laws and licensing regulations which authorize the funeral director to practice his profession. Generally they empower him to take those actions which are incident to the funeral. I.E; transporting, embalming, conducting funeral services, and arranging dispositions in cemeteries or crematories -The second source: The funeral directors authority arises from the *contract entered into between the funeral director and the individual with the paramount right of disposition.* The funeral director has no rights in his professional capacity with respect to a dead body until such time as a valid contract is entered into between himself and another, either expressly or implicitly

Right to Choose Disposition

The paramount right to take custody of the body includes the right to choose the method of disposition.

In general

The party who legally undertakes to dispose of a dead body is vested with certain rights and charged with certain duties; the rights and duties granted and imposed by the law for the protection of the decedent's survivors and the protection of the public

Reasonable length of time

The reasonableness of the length of time during which a body may be held pending final disposition is determined by the circumstances of the case. -In the usual case several days may suffice. -Under a different set of facts in may be necessary to withhold disposition for a longer time and such delay is not unwarranted where the cause if justifiable. *Contagious disease, however, the law may stipulate the maximum time during which the body may be held.*