FSE LAW chapters 3-4

1.) A person designated by the decedent ---->(authorized to direct disposition listed on DD form 93 if they died serving in the military) 2.) The designated agent of the decedent -----> as directed through a signed written document. 3.) The surviving spouse/ state-registered domestic partner. 4.) The majority of the surviving adult children of the decedent. 5.) the surviving parents of the decedent. 6.) The majority of the surviving siblings of the decedent. 7.) A court-appointed guardian for the person at the time of death.

The right to control final disposition of human remains follows a priority list:

Real Property vs. Personal Property

-Real property ---> is defined as the land, everything attached to the land, and everything appurtenant to the land. -Personal property ---->is defined as everything that is not real property

Quasi contract

A fictional contract created or implied by a court for a person who is unable to contract for himself (e.g. medical care, death) an obligation which law creates in the absense of agreement; it is invoked by courts where there is unjust enrichment.

Dependents guardian

A person appli Ted by a court to administer the affairs of another person to his incompetent by virtue of age or legal disability.

Funeral director

A person properly licensed, engaged in, conducting, or holding himself/ herself out as being engaged in preparing, other than by embalming, for the burial or disposition of dead human bodies

Tort

A private or civil wrong against a person or his/her property, other than by breach of contract for which there may be action for damages.

Replevin

An action to recover possession of wrongfully withheld personal property. (human remains are not real/personal property and therefore not subject).

Autopsy (post-mortem examination)

An examination of a human body, organ, or other body part following death to determine the cause and manner of death.

Will

An instrument executed with required formality by a person making disposition of their property to take effect upon their death.

Mutilation

Any altering or change made to a dead human body from the time of death, other than by natural causes. ---> (any deliberate change to the condition from when it was first received requires permission/authorization including emb.)

negligent mutilation

Embalming or any restorative procedures without permission/ authorization may expose the FD to a tort action, and that action may extend to a claim for ____ _____.

Negligent tort

Exists when an individual carelessly or negligently engages in, or fails to engage in, conduct that results in an unintentional damage or loss to another. ----> this type of tort has many potential sources, including failure to exercise due care (negligence), failure to perform a required or promised duty, carelessness, and inattentiveness.

Intentional tort

Exists when an individual knowingly and intentionally engages in conduct with the intended result that another will suffer some form of damage or loss.

Prefunded Funeral Arrangements

Funeral arrangements made in advance of need that include provisions for funding or prepayment

Volunteer

Generally found near the bottom of the priority list, a volunteer may be granted the right to control the disposition of human remains when all other classes preceding them are, for one reason or another, eliminated.

1.) Custody of the human remains (actual/ constructive custody). 2.) The right/ ability to convey actual custody to a FS practitioner. 3.) The right to control, manage, and arrange for themselves/ others to provide for the care, preparation, transportation, funeral, and final disposition of the remains.

Once priority right to control the disposition of remains is established, they are afforded certain legal rights to accomplish the necessary tasks to provide for the disposition, including:

Kin

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

Guardian

Person appointed by the court to administer the affairs of another person who is incompetent by virtue of age of legal disability

probate law

Pertains to settling the financial affairs of a person after he or she has died.

Strict liability

Provides an individual or entity may be held liable for their conduct without the need to prove the act was either intentional or negligent.

Degree of Kindred

Relationship of decedent to blood relatives

Liability

Responsibility for actions and/ or other debts: the quality or state of being legally obligated or accountable

Custodian

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

1.) The subject of a court-order or other similar legal directive protecting the decedent; 2.) Under arrest/ charged with a crime related to the death of the decedent (such as homicide or manslaughter) 3.) Not reasonably available to serve; 4.) Unwilling to serve; 5.) Not legally competent to serve.

Statutory exception affecting the general priority list: ---> When a person has the priority right to control a final disposition , they may lose that right if at the time of death they are:

Primary Right of Disposition

Surviving spouse, next of kin, nearest and dearest.

True

T/F there is called the no-property theory as it relates to human remains

police power

The inherent power of a government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens. ---> Through this power, states have codified the duties and responsibilities of providing for the proper disposition of human remains.

Next of kin

The kin of a descendant are those family members with a biological blood relationship such as a mother, son, or sister. Does not include anything that has no blood relation, with one exception being a legally adopted person.

Priority

The order in which claims will be paid when there are insufficient assets to pay all of the claims, or the order in which certain classes of people have the right to make decisions concerning the disposition of the dead body

Estrangement

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

insolvency:

The position of being unable to pay money owed to others.

Estate

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

Decedent estates

The property, assets, and debts of a deceased person make up their estates. ----> the funeral bill is a debt owed by the estate of a decedent; the estate has the primary obligation to pay the F. expenses when there is no contract or other statutory contract provision to the contract.

1.) The standard of care expected in the FS profession and affiliated groups. 2.) Community standards which may include local, regional, and national values, morals, ethics, rites, and customs. 3.) Considerations, including wishes of the dead, the survivors, and the need to protect public interest. 4.) Statutes and ordinances that require decent/proper disposition of human remains. ----> states have taken the responsibility to provide laws that directly address this.

The requirements for a decent final disposition are developed from 4 sources:

Right of non-interference (right of sepulcher)

The right of a family to provide for a decent and proper funeral w/out any unreasonable interreference from others; right to plan, execute, and attend common activities, such as visitation, FS, and cemetery burial. ---> (if a FD unreasonably denies these rights, they may be subject to a civil claim for damages based on interreference).

Constructive Custody

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

Secondary right of disposition

The state

unjust enrichment

When an individual receives a material gain at the expense of another persons that the law sees as unjust

Lien

a claim or charge against real or personal property for payment of some debt (there can be no lien against a dead human body for it is not property).

Mental anguish

a condition which may result from an outrageous intentional or grossly negligent act and may be accompanied by physical injury.

Medical Examiner

a forensically trained physician whose duty is to investigate questionable or unattended deaths (has replaced the coroner in some states)

tort

a private or civil wrong against a person or his or her property, other than by breach of contract, for which there may be action for damages ---> An action taken by 1 party to pursue compensation for an injury/loss they believe was the result of an act or omission by another party

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.

Elements of a Contract

agreement, consideration, capacity, legality

outrageous act

an act with complete disregard for proper conduct which transcends the bounds of common decency

Outrageous act

an act with complete disregard for proper conduct which transcends the bounds of common decency.

Implied Contract

an implied to exist, it does not need to be confirmed or written orally

Cause of death

diseases, injuries, or complications that resulted in death

Negligence

failure to exercise reasonable care.

Malpractice

failure to perform a professional service with the ability and care generally exercised by others in the profession. (professional negligence)

Sources of Funeral Service Law

federal and state constitution, federal and state statutory laws, municipal ordinances and local laws, administrative law, case law, common law.

volunteer

found at the bottom of a priority list, a volunteer may be granted the right to control the disposition of human remains when all other classes preceding them are for one reason or another eliminated

Pre-planned funeral arrangements

funeral arrangements made in advance of need that do not include provisions for funding or prepayment

no

is the dust of a long dead body or the bones of a skeleton considered a body?

1.) Intentional inflictioin of emotional distress, 2.) An outrageous act, 3. A gross negligent act.

mental anguish claims may arise from:

Due Diligence

the attention reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.

Due diligence

the attention reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.

Final disposition

the conclusive performance of services with respect to the dead human body broadly including the care, disposal, transportation, burial, cremation, or embalming of the body of a decease person in any associated measures.

Gross negligent act

the intentional failure or the reckless disregard of the consequences with respect to conduct affecting the life or property of another

Manner of death

the mode of death, such as accident, homicide, natural, suicide, or unknown

Actual custody

the physical possession of the dead human body or other property

Aftercare

those appropriate and helpful acts of counseling, personal and/or written contact that come after the funeral. ---> (may present potential liability exposures to the FH)>

statutory law

written and passed by congress grants the federal trade commission the authority to oversee government efforts to prevent unfair methods of competition.

Secured claim

A debt which is supported by a pledge, mortgage or lien on assets belonging to the debtor.

1. Receive payment for goods/ services. 2. Extract payment for any debt 3. Seek compensation/ material gain 4. Exercise control over another for any purpose.

No person, including a FD may withhold human remains or cremated remains in an attempt to:

Criteria of a corpse:

1. Remains must be human (identified or unidentified) 2. Remains must be deprived of life 3. Remains must not be entirely disintegrated

1.) intentional torts: 2.) Negligent torts: 3.) Strict liability:

3 basic types of torts:

Preferred claim

A claim which is accorded a priority, advantages, or privilege over others.

Unsecured claim

A claim which is not supported by a pledge, mortgage, or lien on other assets.

Express Contract

A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.

Cadaver

A dead human body intended solely for scientific study and dissection

Implied contracts

Contractual agreements are legal long binding on the parties by virtue of the actions, acts, or conduct of a least one of the parties. ----> it does not need to be confirmed in writing or orally. Ex> casket warranty

The government therefore has the right and duty to provide proper disposition: --> state, country, or local government official may be identified by title on a secondary right list. ---> EX> governments may name officials such as a state commissioner of public health, a county administrator, or a municipal director of SS as having the right, duty, and responsibility to ensure all deceased persons are afforded a decent and proper final disposition. ----> Statutes mandate the responsible government pay any expenses related to carrying out these duties.

If the general priority list is exhausted, with no one in the various classes identified to control final disposition, a SECONDARY PRIOROTY RIGHT is usually included in the same statute. who may provide final disposition on the secondary priority list:

1.) State or local law requires embalming under the particular circumstances, regardless of any wishes the family might have. 2.) The FD has obtained prior approval for embalming from a family member or other authorized person. 3.) The FD is unable to contact a family member or other authorized person after exercising due diligence; has no reason to believe the family does not want embalming performed; and after embalming the body, obtains subsequent approval from the family for the embalming.

The FTC Funeral rule identifies 3 circumstances under which a funeral establishment may charge a family for embalming: ---> If the funeral establishment embalms w/out first receiving permission from the person with priority right to control the disposition, or fails to exercise due diligence in attempts to reach someone and ask for permission to embalm, it may face a civil tort claim.

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 properly for the purpose of disposition only. --> This theory provides an exception following death for human remains to be treated as if they are property for the purpose of DISPOSITION ONLY, while still maintaining the no-property theory assoc. with a dead human body.

Corpse

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

Death

The cessation of life, permanent cessation of all vital functions and signs

1.) Reasonable and prudent actions: ---->the ordinary conduct of the practitioner must be such that no reasonable person would: have an objection, find such conduct to be overbearing, or perceive the conduct to be anything less than satisfactory/ acceptable. 2.) Establish and follow standards of care: 3.) Training and communications: ----> training and communication strengthen due diligence efforts in the areas of regulatory compliance and risk management. 4.) Documentation: ----> all related records and documentation assoc. with the actions/ activities undertaken by staff are properly maintained. this may help mitigate any damage awards when defending a civil claim in court.

There are 4 key components establishing due diligence that can, when consistently applied, reduce the liability exposure of FD's:

1.) Contracts: ----> express contracts. ----> implied contracts. ----> quasi-contracts. 2.) Decedent estates: ----> limitations on claims for payment under insolvency. ----> Certain items deemed necessary. ----> Claims against the estate for FS's. ----> Priority of claims on estate assets. 3.) Volunteer: ----> employers, charities, religious entities, donors, etc. 4.) Public authorities: ----> public authorities pay limited expenses to provide basic FS's for the indigent and needy.

There are 4 sources through which the identity of who is legally responsible for making payment may be established:

Express contract

These are contracts in which the parties have clearly and plainly set out and agreed to the terms of the agreement. ---> Each service/ item of the contract is specifically described and stated, and the purchaser offers and express promise to pay when signed. ex> at-need and refunded arrangments = express contracts.

1.) Family has a right to all details/ info about a death case (full disclosure). 2.) Failure to provide info, withholding info, or providing misinformation = causes of mental anguish. 3.) Families have the right to exercise "informed consent" for all procedures involving the handling of the remains/ aspect of F being provided. 4.) Any breaches in the F contract may cause mental anguish (thus a liability exposure). 5.) Public policy requires FD to adhere to high standards of care in order to avoid psychological devastation resulting from mistakes.

To avoid claims alleging mental anguish:

Brain death

Total and irreversible cessation of brain function as indicated by a flat EEG reading. ---> The accepted medical standard to conclude lide has been lost and may not be restored, even when machines are still providing circulation and respiration w/in the body. ---> plays an important role in the medical community if there is any uncertainty that life has ceased.