Mortuary Law & Ethics

Intentional Infliction of Mental Distress

When the defendant's conduct is "intentional, wrongful, outrageous, reckless, and malicious and done with the intention of causing plaintiff severe emotional distress."

Liability of the State

Where the funeral home is ordered by public official in the performance of the duties of his/her office, the state or one of its subdivisions may be rendered liable to the funeral director for the funeral.

the surviving spouse or NOK

Where the gift is of the entire body, __________________________ may, subject to the terms of the gift, authorize embalming and use the body in a funeral service.

Duty of a funeral director in the case of conflict

Where the right of disposition is in question, it is the obligation of the funeral director to hole the body until the proper party authorizes its disposition.

Common Law....

________ is that a husband and father are primarily liable to pay the funeral expenses of the wife and dependent children.

Probate Court

a court having jurisdiction over estates.

Precedent

a decision of a court which is thereafter followed as an example in subsequent similar cases.

Executor

a man appointed by the will of a deceased person to carry out the provisions thereof and settle the estate.

Resident trainee

a person engaged in learning the practice of funeral directing and/or embalming under instruction, direction, or personal and/or embalmer supervision of a duly licensed funeral director and/or embalmer.

Personal Representative

a person who represents and administers the estate of deceased persons (e.g. executors and administrators)

Funeral Establishment

a place of business used in the care and preparation for the funeral and/or final disposition of dead human bodies

Executrix

a woman appointed by the will of a deceased person to carry out the provisions thereof and settle the estate.

Administatrix

a woman who has been appointed by the court to settle an estate

Personal Service Contract

contract which involves such personal knowledge, skills or confidence that it can only be performed by the person with whom it is made; a contract whereby both parties should recognize that any breach will usually cause anguish.

Rules and Regulations

enactments by an administrative body within the jurisdiction of that agency.

Bequest

(law) a gift of personal property by will

Malpractice

A breach of contract by a professional person; failure to perform a professional service with the ability and care generally exercised by others in the profession.

Codicil

A change to a will that adds or subtracts provisions or clarifies portions of the document.

Quasi Contract

A fictional contract imposed on the parties by a court in the interests of fairness and justice; usually imposed to avoid the unjust enrichment of one party at the expense of another

Negligence

A finding of failure to act properly in a situation in which there was a duty to act, that needed care as would reasonably be expected of the EMT was not provided, and that harm was caused to the patient as a result.

Administrator

A man appointed by the court to settle the estate

Apprentice

A person who works for another in order to learn a trade

Embalmer

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

Durable Power of Attorney

Exists when a person executes a power of attorney which will become or remain effective in the event he or she should become disabled.

Preparation Room

that facility in a funeral home especially designed and equipped for embalming.

Final Disposition

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

Gross negligent act

the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another.

Statutory exceptions to the general rule of priority

New Jersey enacted a law which reaffirmed that the surviving spouse has the paramount right of disposition.

Probate Estate

the property of a decedent that is subject to administration by the executor or administrator of an estate.

Contractual Liability

The person who requests a funeral director to undertake a funeral does not automatically make himself/herself liable for the funeral expenses unless the law implies liability on his/her part because of his/her legal relationship to the decedent.

Estate

The property of a deceased person, both real and/or personal.

what are 3 important factors that can affect the General Rule of Priority?

1. Wishes of the decedent 2. Special Relationships 3. Waiver

Try to Name all the Tort Liabilities

1. Wrongfully withholding a body. 2. Loss of the body 3. Mutilation of the body 4. Injury to invitees 5. Injury to pallbearers and clergy

What are the 7 factors in determining the reasonableness of a funeral bill?

1. The size and solvency of the estate. 2. The right of the creditors. 3. The station in life of the decedent. 4. The decedent's religious faith. 5. The decedent's fraternal memberships 6. Local and contemporary customs. 7. The funeral director's knowledge of the financial condition of the decedent.

Probate

- the process where the estate of a decedent is administered. The act or process of proving a will.

What are the steps you can take to avoid claims of malpractice for grief counseling?

1. Do not refer to grief counseling as therapy or the counselor as a therapist. Terminology such as grief facilitator is recommended. 2. All funeral home employees that participate in the aftercare program should have grief facilitation training. 3. The grief facilitator should be trained to refer any serious or apparently serious problems to a psychologist or psychiatrist. 4. The grief counseling or aftercare program should be covered by the funeral home's malpractice insurance.

Contractual Obligations

1. Negligent Embalming 2. Negligent Funeral Directing 3. Safeguard the Body 4. Privacy 5.Defective Merchandise 6. Transportation 7. Aftercare (counseling)

Statutory Duties

1. Permits (D.C's,Burial & Transit) 2. Health Laws & Regulations

Try to name all the mental anguishes

1. Physical impact 2. Intentional infliction of mental distress 3. Contractual Breaches 4. Negligent Infliction of Mental Distress 5. Punitive Damages

Name of the Liabilities of the Estate

1. Primary Obligor 2. Reasonableness of the Funeral Bill 3. Collection against an estate

What are 2 duties recognized by the law which impact directly on the funeral director?

1. The duty not to interfere with the right of burial. 2. The duty of exercising reasonable care to keep the funeral home premises or other places under the control of the funeral director in a reasonably safe condition.

Coroner

A public officer whose chief duty is to investigate questionable deaths.

Personal Property

Any tangible or intangible property such as personal effects, furniture, automobiles, jewelery, money, stocks, bonds, insurance proceeds payable to the estate, and the like.

Liability

Anything for which a person is legally bound or responsible.

Punitive Damages

Awarded by a court to a plaintiff not to compensate the plaintiff for damages suffered, but to punish the defendant.

Anatomical Gifts can be made to?

Hospitals, medical or dental schools, surgeons, physicians, medical storage bins, designated persons who need transplantation, education.

Liability of the Executor of Administrator

If the executor or administrator pay for the funeral from his/her own funds,, he/she may be reimbursed by the estate for the reasonable expense of the funeral.

Collection Against an Estate

It is advisable for funeral directors to have additional parties execute the funeral contract.

Real Property

Land and anything attached to it.

Paramount Right of Disposition

Provides an individual with broad authority in regard to the funeral and ultimate disposition of a dead body.

General Rule of Priority

That the surviving spouse has the primary right of disposition and in the absence of a surviving spouse, the right is given to the next of kin. (ie: Surviving spouse, adult son or daughter, either parent, adult brother or sister, guardian of the decedent at the time of his/her death, other person authorized or under obligation to dispose of the body)

Funeral Director

The ____________ should not undertake to make legal decisions as to whom has the paramount right of disposition.

Anatomical Gift Act

The _______________ has been enacted in all 50 states.

Anatomical Gift Act

The act generally provides that any individual of: Sound mind and legal age can donate all or part of his/her body upon his/her death. The person may designate the gift in his/her last will and/or testament.

Kin

one's relative collectively: referring to blood relationship (legally, surviving spouse is not a kin).

Body Parts

in the Uniformed Anatomical Gift Act body parts is defined as organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of a human body for transplantation. After removal of a body part, without unnecessary mutilation, the custody of the remainder of the body rests with the person who otherwise has the right to control final disposition.