1.2 Dead Bodies, Disposition, and Right of Disposition

While making the arrangements for a gentleman, a dispute arose between the widow and the son. (The son was paying the bill.) The widow desired a visitation and funeral. The son wanted a direct cremation. What should you (the funeral director) do legally?

According to law, the next of kin makes the decisions related to disposition. That means the widow has the right to decide the details of the disposition, rather than the son. The funeral director ultimately will have to abide by the wishes of the widow.

Consanguinity

Consanguinity is the blood relation of persons. For our purposes, consanguinity is the term that determines who is the closest next of kin to a deceased person

Give an example of an implied oral contract that is binding relative to funeral services.

Family makes notes with the nursing home that when the individual passes they are to call a specific funeral home. The family has implied contract that the particular funeral home will carry out the removal.

List the three criteria generally included in each state's definition of dead body.

Human Deprived of life Not entirely disintegrated - typically dust of a decomposed body and the bones of a skeleton are not considered as a body.

Kin

One's relatives collectively; referring to blood relationship (legally, the surviving spouse is not a kin)

Personal Representative

Person who represents and settles the estate of deceased people

Clinical death / legal death

Phase of somatic death lasting from 5-6 minutes during which life may be restored

List the formalities required in the Uniform Anatomical Gift Act.

Requires the decedent be sound of mind, majority age, and the written instructions must be signed by 2 witnesses. Anatomical donation takes precedent over all other desires of the family, that is, if the decedent donates his/her body to science, the relatives may not supersede that decision. The donation takes either the entire body or body parts for scientific or educational purposes

Custodian

Status associated with funeral service practitioner/funeral establishment who becomes legal protector of a dead human body from time of removal until final disposition

Quasi-Property Theory

The 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 disposition only

Property Theory

The belief that the dead human body is the personal property of the next of kin and therefore, the next of kin could sell the body if they desired. (This has never been held as a valid property law.)

Corpse/dead human body

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

Death

The cessation of life; permanent cessations of all vital functions and signs

Live birth

The complete expulsion or extraction from its mother of a product of conception which, after such separation, breathes or shows any other evidence of life

Final Disposition

The conclusive performance of services with respect to the dead human body by one of the legally recognized methods

Cremated Remains

The final product remaining after completion of the entire cremation/pulverization process

Brain death

Total and irreversible cessation of brain function as indicated by a flat EEG reading

While making arrangements for a lady whose husband had died three years ago, a dispute arose between the two surviving sons. One wanted a funeral with visitation and the other wanted direct cremation, what should the funeral director do?

Wait and let the sons decide among themselves. If you side with either son, you face possible litigation.

With whom does the secondary right of disposition rest?

With the state (i.e. with government) to dispose of dead human bodies. If there is no family willing to exercise the right of disposition, the government will pay for disposition. In some states, such as FL, this is commonly done through cremation, while other states, such as IA and other mid-west states, burial may be more common

What is the difference between a coroner and a medical examiner?

coroners are appointed, MEs are medically licensed

If the decedent wishes to donate his body to science and expresses his/her wishes in writing, who can overrule that decision?

no one

Which property theory (Property, Non-Property, or Quasi-Property) is currently the only accepted theory relative to the treatment of dead bodies?

quasi-property

What right does an adopted child have with regard to the disposition of a parent?

same as biological

To whom does a funeral director report any burials at sea?

to the EPA region in writing

Cohabitation

A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage

Durable Power of Attorney

A situation in which one person appoints an agent; agent status which will become or remain effective in the event the original part should later become incapacitated

List the five (5) primary modes (methods) of disposition.

Burial Entombment Cremation Burial at sea Anatomical donation

Householder

One who owns or controls real estate where a death occurs

Degree of Kinship/Kindred

Relationship to decedent of his relatives; each generation is one degree, counting to a common ancestor

Burial

The act of placing the dead human body in the ground

Paramount right

The highest right among other lesser rights

According to the EPA, how many nautical miles offshore, must a ship be in order to bury a body at sea?

3 nautical miles

List the order in which duty to dispose of a dead body is required if no one else steps forward.

1. Householder (the person who owns the property on which the deceased dies) must complete disposition if no one else will, though this is very rarely practiced 2. Surviving spouse 3. Next of kin 4. Public authorities

According to the Environmental Protection Agency, what is the required water depth to bury a body at sea?

600 feet

Expressed contract a.k.a. explicit contract

A contract in which the parties express their intentions, either orally or in writing, at the time of the agreement

Implied contract

A contract in which the terms of the contract are implied by acts or conduct of the parties

Cadaver

A dead human body intended solely for scientific study and dissection

Quasi contract

A fictional contract created or implied by a Court for a person who is unable to contract for himself; an obligation which law creates in the absence of agreement; is invoked by courts where there is unjust enrichment. Function of quasi contract is to raise obligation in law where in fact the parties made no promises.

Guardian

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

Uniform Anatomical Gift Act

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

Uniform Determination of Death Act

A model law intended to achieve uniformity among the states regarding when/how a medical professional determines when death occurs

Morgue

A place where dead human bodies are kept until identified and/or released for final disposition

Justice of the peace

A public officer whose duties may include among other things the investigation of death

Coroner

A public officer whose duty it is to investigate cause of death when the question of accident, suicide or homicide may be evident or where there was no doctor in attendance

Medical Examiner

A public officer whose duty it is to investigate questionable or unattended deaths

Ethics

A set or moral principles or values governing individuals or groups; conforming to accepted professional standards of conduct

Common-law marriage

A union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by cohabitation

Springing Power of Attorney

A written instrument authorizing one person to act as an agent for another effective only upon a certain event occurring

General Power of Attorney

A written instrument authorizing one person to do anything for the principal

Body parts

In the Uniform Anatomical Gift Act part is defined as organs, tissues, eyes, bones, arteries, blood, other fluids, and other portions of a human body for transplantation

Crematory

The location of the retort/cremation chamber which will perform the cremation process

Estrangement

The physical and/or emotional separation for a period of time showing the lack of affection, trust and regard

Actual custody

The physical possession of the dead human body or other property

Entombment

The placing of a human remains into a crypt in a mausoleum

Indemnification

The promise of one person to protect another person from a lawsuit

Cremation

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

Constructive custody

The situation whereby one party has a right to acquire actual custody/possession of the dead body although another party has actual physical possession

Non-property Theory

This belief holds that death is a spiritual matter, as such, the church is the only entity entitled to possession of the dead human body. (This is no longer practiced.)