Mortuary Law Ch. 3

Second source

arises from the contract with the person with right of disposition; funeral director has no rights with respect to the dead body until a valid contract is entered into with another, either expressly or implicitly

3rd parties are also empowered to:

arrange and authorize services; includes employers, the armed forces, or government welfare agencies

possession/control of dead body begins;

at the moment of death and may be continued for a "reasonable" period of time

pros of written contracts

best interest of the consumer and funeral director 1. more sound legally 2. explicit as to method of payment 3. easier to prove in case of default 4. proof of a valid contract

constructive custody

constructive possession; is retained by the person with the power of disposition even when the dead body is in the actual custody of someone else

cash transaction

contract should stipulate is a "cash transaction" not a "credit transaction"

collection fees

contract should stipulate that person(s) signing contract agree to pay all collection costs including reasonable attorney fees. Some states do not allow collection provisions on contracts

right of custody

custody is granted to the party undertaking disposition but custody is not absolute; custody is granted for a specific purpose and subject to revocation if not utilized properly PIERCE V. PROPRIETORS OF SWAN POINT CEMETERY

Custody to a Funeral Director

custody of a dead body is granted only for the purpose of disposing of it in a lawful manner

Funeral Director's legal rights

derived from two sources: 1. rights granted and imposed by statute 2. rights arising from the funeral contract

reasonableness

determined by the circumstances of each case but usually is defined as "several days"; some cases require withholding disposition for a longer period of time and is not unwarranted if the cause is justifiable.

individual with power of disposition

has the power to control all matters relating to the funeral and final disposition, power is called "bundle of rights"

First source

includes laws and licensing regulations that authorize the funeral director to take those actions incident to the funeral and legal disposition of the dead body

power of disposition

includes the power to control where and how the funeral and final disposition is conducted

cases of contagious disease

law may dictate the maximum time period before disposition

late payment charge (penalty charge)

may be imposed on late payments. is subject to state laws regulating ceilings to these charges.

disclaimer of warranties

may void liability for implied warranties of merchandise sold.

estate liability

most states place primary liability for payment on the decedent's estate

who executes the contract?

person with power of disposition or surviving spouse/next of kin. 1. to verify authorization to conduct the contracted services 2. provide another source of payment if estate is insolvent

credit transaction

require many disclosures required by the Truth-in-Lending provisions

written contract/ memorandum

required in states with additional disclosure requirements

itemization

spells out the goods and services provided in the contract (req. by the FTC funeral rule)

failure to legally /properly dispose of dead body

takes away the right of custody and can lead to criminal sanctions

funeral contract

the contract is an agreement between the funeral director and another "competent" party of "legal age"; may be oral or written, expressed or implied (removal of a dead body is example of an implied contract where a 3rd party carries out oral instructions to contact a funeral home"

Funeral contract may be between a funeral home and;

1. Decedent's state 2. Decedent's family 3. Unrelated 3rd party

types of disclosures required by state laws

1. price of funeral & a listing of all services and merchandise provided 2. price of any supplemental services or merch. 3. listing of all cash advances 4. method of payment

bundle of rights

1. right to use/choose a funeral home 2. right to whether or not to have a service and/or to control the type of service 3. type of merch. purchased 4. method of disposition 5. right to exclude all other from possession of the body or participation in the funeral or final disposition (Rader v. Davis and Ross v. Forest Lawn)

Joint and Several (Individual) Liability

hold everyone signing contract jointly and individually liable for payment

decedent's state

in an implied party to the contract since it is generally responsible for the decedent's funeral expenses

disclosures

*FTC Funeral rule * Truth-in-Lending *some state laws require certain written disclosures to person making arrangements

estate liability should:

*contracts should included a statement making the signer's liable for payment in addition to liability imposed by law *the signer(s) will be held responsible for payment in event estate is insolvent *funeral homes may stipulate late payment fees on estates but may or may not be honored

regards to disclaimer of warranties

*some state laws prohibit the use of such disclaimers *make sure consumers understand that warranties are made by the manufacturer and not by the funeral home

Actual custody

actual possession; means the dead body is within your physical control, typically the coroner or funeral director. may be revoked by person with POWER OF DISPOSITION.