Funeral Law - Lesson 1.1

List the formalities required in the Uniform Anatomical Gift Act

(a) requires the decedent be sound of mind, majority age, and the written instructions must be signed by 2 witnesses. (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. (c) the donation takes wither the entire body or body parts for scientific or educational purposes

List the 5 modes (methods) of disposition

1. Burial 2. Entombment 3. Cremation 4. Burial at sea 5. Anatomical donation

Be able to know the order or persons who have the right of disposition as well as the order of persons if only those of consanguinity is considered

1. Children 2. Parents 3. Siblings 4. Grandchildren 5. Grandparents

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

Adopted children enjoys the same right as natural (biological) children

Consanguinity

Blood relation of persons (determines who is the closest next of kin to a deceased person).

Constructive custody

Have the authority to control disposition although another party has physical possession

Stare decisis

Once a particular issue is resolved by a court, a precedent of principle is established which will control future decisions by courts

Actual custody

Physical possession of the dead human body

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

Be able to list the order or persons who have the right of disposition. This includes knowing the rights of spouses, divorces spouses, separated spouses, children, adopted children, step children, siblings and parents

Spouse, the children or great grand nieces. Divorces spouse - gives up all rights Separate spouse - retains the right of disposition until the divorce is finalized. Adopted children - enjoys the same rights as natural (biological) children. Step-children (or step-parents) not normally included in the list, but may possess the paramount right in some cases

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

States that though there is no personal property in the body, there are certain rights that a next of kin or person with the authority has the right to direct the disposition, but may not sell the body for a profit.

Mr. Smith dies in Pleasant pasture nursing home and Mrs. Smith asks them to call the funeral home. If the funeral home is not yet to the nursing home to make the transfer of remains, who has the actual and constructive custody

The family and the funeral home

Paramount right

The highest right among other lesser rights

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

The person with the paramount right giving the funeral home permission to remove their loved one from the hospital or place of death back to the funeral home.

With whom does the secondary right of disposition rest

With the state (i.e. with government)

Define police powers as it refers to statutory law

Licensure, health standards, and business operations

Zoning laws fall under which source of funeral service law

Local ordinances

In the Uniform Determination of Death Act, does skeletal remains constitute a corpse

No

Be prepared to determine who has the right of disposition if a dispute arises. Know the difference between a dispute between 2 persons within the same right of disposition, such as sisters of the deceased, and a dispute between 2 persons of different rights of disposition, such as the parent and the daughter

1. Dispute between 2 persons within the same right of disposition - the funeral director will wait until a mutual agreement between the two has been established otherwise a court issues an order as to the disposition. If the disagreement is between two people who are not in the same order the funeral director should follow the wishes of the person with the highest right of disposition

List 3 federal agencies which have enacted administrative rules and regulations that pertain to funeral services

1. Federal trade commission 2. Occupational safety and health administration 3. Environmental protection agency

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

3 miles

According to the environmental protection agency, what is the required water depth to bury a body at sea

600 ft

The medical term for a dead human body

Cadaver

What source of law is based upon what is the right thing to do?

Common Law

The legal term for a dead human body

Corpse

Preemption

If a dispute exists between state and federal law, federal law is enacted

Ordinance

Includes zoning laws, building codes, and any law enacted by local governments

Statutory law

Law created as statutes (state and federal) are enacted by legislative bodies

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

The church was the only entity who had the right to take possession of a dead body.

Define property theory as it relates to dead bodies

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.