Lesson 1.2 - Dead Bodies, Disposition, and Right of Disposition

The right to custody and ability to convey custody to others including the funeral director

1. Actual custody 2. Constructive custody 3. Custodian

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

1. Burial 2. Entombment 3. Cremation 4. Burial at Sea 5. Anatomical Donation

The five methods of Final Disposition are:

1. Burial 2. Entombment 3. Cremation along with the processing and placement into an urn - though the placement of the urn or the scattering of the cremated remains are not included in the final disposition -Crematory -Cremated Remains 4. Burial at Sea - the placement of human remains into a sea / ocean 5. Anatomical Donation - Giving of one's body for scientific dissection and research, generally to a university medical school.

There are some special considerations for some relationships:

1. Divorced spouse 2. Separated spouse or estrangement 3. Adopted children 4. Step-children (or step-parents) 5. In some states, the wishes of the decedent as listed in a will or pre-need contract are given priority over the family. 6. Common-law spouses under a common-law marriage

examples of application questions:

1. Give an example of an implied oral contract that is binding relative to funeral services. 2. 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? 3. 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?

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

Each state has adopted a definition of dead body, but they typically have the following three criteria:

1. Human 2. Deprived of life 3. Not entirely disintegrated - typically dust of a decomposed body and the bones of a skeleton are not considered as a body

forms of funeral contracts

1. Implied contract 2. Express contract a.k.a. Explicit contract 3. Quasi contract

types of rights

1. Paramount right 2. Primary right of disposition 3. Secondary right of disposition

Death may be pronounced by:

1. Physician 2. Coroner - an elected official who may be (but usually is not) a trained physician. 3. Medical Examiner - a physician who is trained in forensic pathology. -Some jurisdictions allow the following to pronounce a person to be dead: a Justice of the Peace, a nurse, or a hospice worker.

order of priority-while every state will determine the priority of those who may have a right to control final disposition, it will generally fall in this order:

1. Surviving spouse 2. Next of Kin as determined by Consanguinity in the degree of kinship 3. Personal Representative such as a Power of Attorney (General or Durable) 4. Guardian 5. Volunteer

rights surrounding the deceased, What rights does a next of kin have relating to a dead body?

1. The right to custody and ability to convey custody to others including the funeral director 2. The right to control funeralization 3. The right to choose disposition

There are three sets of property rights that have been espoused over the centuries:

1. non-property theory 2. property theory 3. Quasi-Property Theory

While the order in which a person has the right to dispose of the deceased, the general order of the duty to dispose of the deceased follows this order generally:

1. surviving spouse and then next of kin 2. Public authorities 3. Householder

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

3 nautical miles

How many bands must be placed on the casket prior to burial at sea?

6 bands

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

600 feet. However, in certain areas, the requirement is 1800 feet

Define implied contract

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

Define Guardian

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

Define Cohabitation

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

example of custody:

After the death of a loved one, a family asks the hospital staff where the loved one died to call a funeral home. Until the funeral director arrives, the hospital staff places the body in the Morgue. While the body is in the morgue, the hospital has actual custody of the body, but the family and the funeral home each have constructive custody of the body (i.e. a right to the body even though they do not have possession of the body.) Once the deceased was transferred from the hospital to the funeral home, the funeral home now has actual custody as well as being a custodian of the body. As a custodian, it is the funeral home's responsibility to protect the body from any harm.

Define Consanguinity

Blood relation of a person. Determines the next of kin

Define personal representative

Person who represents and settles the estate of deceased people

Define Actual custody

Physical possession of the dead body

primary right of disposition

Primary right of disposition is said to rest upon the family as they are given the right before the state assumes the responsibility

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

Quasi-Property Theory

Define Degree of Kindred

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

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

Same rights as a biological child

secondary right of disposition

Secondary right of disposition rests 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 (usually through the state or local governing bodies) will pay for disposition. In some states, such as Florida, this is commonly done through cremation, while other states, such as Iowa and other Midwest states, burial may be more common

The term defined by 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

common law marriage

The term which is defined by a public officer whose duty it is to investigate the cause of death when the question of accident, suicide or homicide may be evident or where there was no doctor in attendance:

coroner

The legal term for a dead human body

corpse

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

cremation

From Death (and time funeral home was called) to time picked up by the funeral director

Family: constructive Hospital: actual Funeral director: constructive

During transport to the funeral home

Family: constructive Funeral home: actual

Once the body was at the funeral home

Family: constructive Funeral home: actual

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

Human Deprived of life Not entirely disintegrated

adopted children

enjoys the same rights as natural (biological) children

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

environmental protection agency

The term defined by a contract in which the parties express their intentions, either orally or in writing, at the time of the agreement:

express contract

divorced spouse

gives up all rights at the time of divorcement

The term defined by one who owns or controls real estate where a death occurs:

householder

public authorities

if there is no family, many governmental entities (usually county governments) have made provision for some form of disposition, though it is generally not an expensive option as they are often paying for it

Quasi-Property Theory

is currently in place. It states that though there is no personal property in the body, there are certain rights that a next of kin possesses with regard to the disposal of the dead body. The next of kin or person with the authority has the right to direct the disposition, but may not sell the body for a profit

it does not matter who is paying the bill, as the responsibility to pay because?

it generally does NOT impact the order of priority.

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

nobody can

step children or step parents

not normally included in the list, but may in very rare instances possess the paramount right

paramount right

of disposition is the highest right of disposition. This is bestowed upon whomever has the highest right, which could be the spouse, the children, or great grand nieces

Define Kin

one's relatives collectively; referring to blood relationship (not the surviving spouse)

separated spouse of estrangement

retains the right of disposition until the divorce is finalized

All persons within the same level of priority (e.g. all biological children or all siblings) would have the same:

right under law. Therefore, the youngest child of the decedent has the same rights as the oldest child

property theory

says 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

What to do in the event of conflict...If the disagreement is between two people who are not in the same order, (e.g. a spouse and a child disagree) the funeral director should:

should follow the wishes of the person with the highest right of disposition, (in this case the spouse rather than the child.)

If there are multiple persons with the same right of disposition, the funeral director may wish to get:

signatures on the contract or authorizations for embalming, burial, or cremation, from all persons with equal rights to minimize the risk of a lawsuit against the funeral home -If the funeral home does not get signatures from all persons with paramount right, the funeral home may wish to have the person authorizing the disposition services to sign an indemnification clause on the statement of goods and services

common law spouses

some states recognize the common-law spouse, while many do not

Cryogenics

the placement of the human body or body part into a frozen state. The purpose is often to allow for advances in medical research in the future to allow the body to be brought back to life, or allow the body / body parts to be used for some living purpose

Resomation a.k.a. Bio Cremation a.k.a. alkaline hydrolysis

the use of an alkaline solution to dissolve the body into a bone chalk and a sludge that would be flushed into the waste system. This is now allowed in approximately 20 states

surviving spouse and then next of kin

these generally follow the same order as people who have the Right of Disposition

composting

this is the newest form of disposition and is not allowed in most states as a form of disposition

has right of disposition:

-separated spouse -estranged spouse -spouse

Define Constructive custody

One party has the rights but another party has physical possession. Ex: Funeral Home

The Medical term for a dead human body that is, a dead human body intended solely for scientific study and dissection

cadaver

Uniform Determination of Death Act

"Death" means the condition determined by the following standard: A person will be considered dead if in the announced opinion of a licensed physician, a licensed physician assistant, or a registered nurse or a licensed practical nurse, based on ordinary standards of medical practice, that person has experienced an irreversible cessation of spontaneous respiratory and circulatory functions. In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of two physicians, based on ordinary standards of medical practice, that person has experienced an irreversible cessation of spontaneous brain functions. Death will have occurred at the time when the relevant functions ceased

non property theory

(no property) rights were used in Europe hundreds of years ago. This right said since death was a spiritual matter, the church was the only entity who had the right to take possession of a dead body. In practice, the church usually took possession and directed the disposition without the input of the family.

The right to choose disposition

-The right of disposition rests with the person with paramount right -Each state will by law determine who has the paramount right of disposition. -The right of disposition can only be exercised one time, since the right of disinterment does not necessarily exist as a result of having the right of disposition.

may have right of disposition:

-child of deceased -common law spouse -step child of deceased -adopted child of widowed parent

has no right of disposition:

-divorced spouse

Since early 2000, a number of states have enacted laws which allow some form of personal representative to be moved ahead of the surviving spouse or next of kin in the order of priority

An example would be if a person decided they wanted a form of disposition that their spouse did not want them to have, the person (obviously while alive) could sign a legal authorization giving someone else the priority to control the disposition instead of the surviving spouse or next of kin

The term defined by the phase of somatic death lasting from 5-6 minutes during which life may be restored:

Clinical Death

Terms related to types of death:

Clinical death Brain death Live birth

Define the non-property theory as it relates to dead bodies

Considered a spiritual matter, therefore the church had the right to take possession of the body. This was done in Europe hundreds of years ago.

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

Coroners are elected officials, Medical examiners are physicians, sometimes forensically trained to perform autopsy

dead body

Corpse is a legal term, where Cadaver is a medical term

The term defined by the status associated with a funeral service practitioner / establishment who becomes legal protector of a dead human body from the time of removal until final disposition:

Custodian

List the formalities required in the Uniform Anatomical Gift Act

Decedent must be of sound mind, over the age of 18, and 2 witness must also sign. Relatives do not supersede the decision of the decedent.

Define property theory as it relates to dead bodies

The dead body is property of the next of kin. The next of kin could sell body if desired. This has never been held as a valid property law.

The right to control funeralization

I list funeralization because this includes several rights relating to disposition, ceremonies, possession of the body and merchandise. This means the person with the right of disposition may choose to have a private visitation or funeral, and exclude friends or other family members if they desire. Example 1: 1912 case law cited in the text Example 2: If a surviving spouse chooses, he/she may exclude an estranged child of the deceased. While it will be difficult for some funeral directors, especially in small towns where you may know the person being excluded, the funeral director does not have the right to tell others about the funeral if the person with the right of funeralization does not wish it. Word of Caution: Once you advertise the visitation/ funeral in the newspaper, it is considered public and the person with paramount right may not have the right to exclude people from the visitation/funeral.

example of rights and duty:

If a person died on the interstate highway near you, there would be both rights and duties associated with disposition. The Duty is the fact that we are not going to leave that body on the highway without moving it. It is someone's duty to dispose of the body in some legal manner. The Right of disposition is the family's ability to choose how (when, and where) to dispose of the deceased.

Seven (7) Suggested portions of a funeral contract

Included among the seven portions are the liability disclaimers for joint and several liability, and warranty disclaimers for merchantability and fitness for a particular purpose, which will be covered in future lessons

The term defined by the promise of one person to protect another person from a lawsuit:

Indemnification

disposition of the dead

It is necessary that those with custody of the body dispose of that body. Some states allow for a criminal charges against anyone who does not dispose of a body of which they are obligated to dispose. This brings us to a discussion of the words Right versus Duty of disposition. Generally right is the option to act; while the duty is the requirement to act.

With whom does the secondary right of disposition rest?

It rests with the State

Define the Quasi-property theory as it relates to dead bodies

The body is not personal property. Rights go the next of kin in regards of having authority of direct disposition

Define a Dead Body

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

Define Cremated Remains

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

What rights does the funeral director have relating to a dead body?

The funeral director's rights relating to disposition derive either by statute (the law requires it) or by contract (the family instructed you to do it.) -the funeral contract

Define Paramount right

The highest right, usually the surviving spouse

Define estrangement

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

Define Power of Attorney

Written instrument appointing an agent

uniform anatomical gift act

a. Formalities / Requirements: requires the decedent be of sound mind, majority age, and the written instructions must be signed by 2 witnesses. Majority age is an interesting topic. To be of majority age, most states say the person must be either 18 years old or emancipated (freed) from their parents. Emancipated can be accomplished in two ways: legal proceedings in which a minor petitions the court to allow them to be free from their parents; the other way is for someone under the age of 18 to get married. The court holds that if you are mature enough to get married, you should be mature enough to make other life decisions. b. 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. This means that if a person donates his/her body to science, the family cannot change it after the death. c. The donation takes either the entire body or body parts for scientific or educational purposes.

If the disagreement is between two people in the same class, (e.g. two children disagree) the funeral director is:

advised to wait until they come to an agreement or a court issues an order as to the disposition

householder

an option if there is no family and the federal, state and local governments do not have any funds to provide for the disposition, the householder could be liable. In the number of years I have been around funeral service, I have never heard of this being the ultimate person who was responsible