MOR 315 - Funeral Law II - Ultimate Midterm Set - CJF

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

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

(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 of a dead body and directed the disposition without the input of the family

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

Guardian

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

Uniform Anatomical Gift Act (UAGA)

A law permitting a person of legal age and sound mind to give all or any part of his body to take effect upon his/her death or gives the right to another.

Cohabitation

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

Uniform Determination of Death Act

A model law intended to achieve uniformity among the states regarding when/how a medical professional determines when death occurs.

Bailor.

A person who delivers personal property to another as a bailment.

Bailee

A person who receives personal property from another as a bailment

Morgue

A place where dead human bodies are kept until identified and/or released for final disposition.

Tort

A private or civil wrong, other than breach of contract, for which there may be action for damages.

Justice of the Peace

A public officer whose duties may include among other things the investigation of death.

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.

Medical Examiner

A public officer whose duty it is to investigate questionable or unattended deaths.

Ethics

A set or moral principles or values governing individuals or groups; conforming to accepted professional standards of conduct.

Durable Power of Attorney

A situation in which one person appoints an agent; agent status which will become or remain effective in the event the original part should later become incapacitated.

Common-law Marriage

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.

Springing Power of Attorney

A written instrument authorizing one person to act as an agent for another effective only upon a certain event occurring.

General Power of Attorney

A written instrument authorizing one person to do anything for the principal.

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

What are the two of the precautions offered by the textbook regarding aftercare?

All FH employees that participate in aftercare programs should have grief facilitating training. The grief facilitator should be advised to report any serious or apparently serious problems to a psychologist or psychiatrist. The grief program should be covered by the FH malpractice insurance.

Common Carrier

Any carrier required by law to convey passengers or freight without refusal if the approved fare or charge is paid

Consanguinity

Blood relation of persons. For our purposes, the term that determines who is the closest next of kin to a deceased person

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

Currently in place. 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

Constructive custody

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

What level of care is owed to an invited guest on a funeral home property?

Highest degree of care

Stare decisis

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

Kin

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

Kin

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

Compensatory damages.

Payment imposed by a court upon an individual or entity to be paid to a harmed person to compensate for the loss the person suffered.

Nominal damages.

Payment imposed by a court upon an individual or entity to make the statement that the person did commit a tort of some kind, but the tort had no significant loss to the harmed person.

Define punitive damages and tell when they may be awarded.

Payment imposed by a court upon an individual or entity to punish the individual (entity) for wrongdoing or gross negligence. -The type of damages which is paid by the funeral home if a court finds them guilty of misplacing a decedent's diamond ring.

Clinical Death/Legal Death

Phase of somatic death lasting from 5-6 minutes during which life may be restored.

Actual custody

Physical possession of the dead human body

Preemption

Pre-emption dictates that if a dispute exists between state and federal law, federal law is enacted

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

Degree of Kinship/Kindred

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

Custodian

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

List the 3 sources of Duties of a Funeral Director.

Statutory Duties Contractual Duties Common Law Duties

Administrative Law

That body of law created by Federal and State administrative agencies to implement their powers and duties in the form of rules, regulations, orders, and decisions (OSHA, FTC, STATE BOARD RULES)

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

While making arrangements for a lady whose husband 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?

The funeral director is advised to wait until they can come to an agreement or a court issues an order as to the disposition

What steps should a funeral director go through to minimize the tort liability owed to guests on the funeral home property?

The funeral director should take care to remove any known hazards, such as snow and ice from the sidewalk, and should inspect for unknown hazards, such as the broken glass in the family lounge.

What is meant by safeguarding a body?

The funeral director's duty to keep the body in at least the same condition in which they received it

Paramount Right

The highest right among other lesser rights

Paramount right

The highest right among other lesser rights

The warranty which is defined as the implied warranty that the product which is purchased will function in the ordinary way that the average consumer would expect it to function

The implied warranty states that the product which is bought will function in the ordinary way that the average consumer would expect it to function

Crematory

The location of the retort/cremation chamber which will perform the cremation process.

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. The implied oral contract would be that the family assumes the funeral home will take the proper and necessary steps in taking care of their loved one to the best of their ability

Estrangement

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

Actual custody

The physical possession of the dead human body or other property.

Indemnification

The promise of one person to protect another person from a lawsuit.

Cremation

The reduction of a dead human body to inorganic bone fragments by intense heat in a specifically designed retort or chamber.

Can the surviving spouse of a deceased refuse to allow a person to attend the funeral of the decedent if a funeral notice was placed in the local newspaper and didn't say the visitation was private? Explain why or why not

The right to control funeralization. If a surviving spouse chooses, he/she may exclude an estranged child of the deceased. While it may 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 with it

Constructive Custody

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

With whom does the secondary right of disposition rest

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 FL, this is commonly done through cremation, while other states, such as IA and other midwest states, burial may be more common

Personal Representative

a person who represents and settles the estate of deceased persons, i.e., executors and administrators

What level of care is owed to a trespasser on a funeral home property?

low degree of care

Householder

one who owns or controls real estate where a death occurs

Corpse (Dead Human Body)

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

Dead Human Body

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

Live Birth

the complete expulsion or extraction from its mother of a product of conception which, after such separation, breathes or shows any other evidence of life

Cremated Remains

the final product remaining after completion of the entire cremation/pulverization process. The product is never referred to as "cremains".

Entombment

the placing of remains in a crypt in a mausoleum

Expressed Contract a.k.a. explicit contract

• Parties express their intentions, either orally or in writing, at the time of the agreement

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

Not entirely disintegrated - typically dust of a decomposed body and the bones of a skeleton are not considered as a body

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, such as sisters of the deceased - 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 (parent and the daughter) the funeral director should follow the wishes of the person with the highest right of disposition (in this case the spouse rather than the child)

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

Implied Contract

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

Cadaver

A dead human body intended solely for scientific study and dissection.

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

List the 3 criteria of the Uniform Determination of Death Act, which is the basis for most state definitions of death

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

Consanguinity

Consanguinity is the blood relation of persons. For our purposes, consanguinity is the term that determines who is the closest next of kin to a deceased person.

The legal term for a dead human body

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

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

Highest right of disposition. Bestowed upon whenever has the highest right, which could be the spouse, the children or great grand nieces. Divorces spouse - gives up all rights at the time of divorcement. 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

Body Parts

In the Uniform Anatomical Gift Act part is defined as organs, tissues, eyes, bones, arteries, blood, other fluids, and other portions of a human body for transplantation.

Ordinance

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

What are 4 acts that generally are regarded as causing mental anguish?

Intentional acts Outrageous acts Gross negligence Breach of personal service contract

Statutory law

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

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 property for the purpose of disposition only

Burial (Interment / Inhumement)

The act of placing the dead human body in the ground.

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.

Property Theory

The belief 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.)

Death

The cessation of life; permanent cessations of all vital functions and signs.

Final Disposition

The conclusive performance of services with respect to the dead human body by one of the legally recognized methods.

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. This has never been held as a valid property law

Non-property Theory

This belief holds that death is a spiritual matter, as such, the church is the only entity entitled to possession of the dead human body. (This is no longer practiced.)

Merchantability Warranty.

This implied warranty states that the product which is bought will function in the ordinary way that the average consumer would expect it to function.

The warranty which is defined as the implied warranty that the product which is purchased will function in the specific way for which it was purchased

This implied warranty states that the product which is bought will function in the specific way for which it was purchased

Fitness for a Particular Purpose.

This implied warranty states that the product which is bought will function in the specific way for which it was purchased.

Aftercare.

Those appropriate and helpful acts of counseling, personal and/or written contact that come after the funeral.

Agent Driver

Those drivers under the directions and control of the funeral establishment which is liable for the driver's negligent actions

Brain Death

Total and irreversible cessation of brain function as indicated by a flat EEG reading.