Mortuary Law Exam 3

Distribution Problems Under The Will

*Abatement *Ademption *Death of Legatee *Spouses Election To Take Against The Will

Unclaimed Cremated Remains

*Authorization form should state a "STORING FEE" will be charged for unclaimed cremated remains after specified period of time *Include authorization to dispose of "IN ANY LAWFUL MANNER" *After specified period of time *Funeral Home should have a crematory lot *Place unclaimed cremated remains in a vault *Family can recover at a later date

Types of Torts

*Commingling of cremated remains *Cremate only 1 Body at a time - Unless multiple family deaths where written authorization is obtained. *Ensure crematory has strict policy *cremation authorization form should state that small amount of commingling is inevitable.

Informed Consent

*Consumer must fully understand creation process *Authorization form should include detailed description of cremation process.

Necessary Permits

*Disinterment Permits must be obtained from proper authorities *In Texas, Written order(permit) from state registrar/designee *Obtained by Funeral Director *4 Parts(State Registrar, Local Registrar, Funeral Director, Cemetery) Unless re-interment in same cemetery.

Permits

*Disposition permit *Burial-Transit Permit *Certificate of Death(Death Certificate) -Requirements vary by state - also time frame for obtaining and filing

Changes In A Will May Occur By Operation Of Law

*Divorce *Marriage/Remarriage *Death of Legatee

Eligibility National Cemeteries

*Established prior to Interment *Proof of Service: Copy of Veterans service record(VA FORM DD-214) Or Veterans Discharge Certificate *Veterans must have been discharged under conditions OTHER THAN DISHONORABLE.

Regulatory Specifications

*Federal Standards: OSHA, EPA, ADA State Standards

Will Formalities

*IN WRITING *Signed by the TESATOR/TESTATRIX *Person who makes a will *Witnessed by 2/more eligible disinterested witnesses(Varies by state) *Usually signed in presence of each other

Desecration of Graces

*IS A CRIMINAL OFFENSE -Society has high regard, respect, and morality associated with final resting place of deceased individuals. -Police sentiment dictates that cemetery is "sacred ground" and should no be disturbed. *TEXAS LAW: -3rd degree felony for desecration of a body. -Class C misdemeanor for desecration of cemetery property.

Authorization for Cremation

*Identification *Written Authorization *Informed Consent Note: Best way to prevent liabilities is to do the above 3 steps.

Special Use Permits

*Issued by a local municipalities -Grant permission to use a building/facility for a specified use/purpose such as hospitals, churches, etc. -Allow exceptions to zoning ordinance for professions such as Doctors and dentists. *Funeral Director is considered a business and not a profession wouldn't qualify for a special use permits.

Requirements of Will

*Legal Age *Testamentary Property *Formality *Legal age: "legal adult" age 18/over in most states

Cremation & Torts

*Liability *Full Liability for Funeral Home owned and operated crematory. *Those who contract with an independent crematory - May still be sued for crematory "misdeeds"

Distribution of Property - Intestacy

*Methods of distribution when individual dies intestacy(NO WILL) Two methods: *Per Capita *Per Stirpes

Special Kind Of Wills

*Nuncupative *Holographic *Soldiers And Sailors

At the Crematory

*Present authorization forms and permits *Ensures written authorization to cremate *protects crematory and Funeral Home from liability

Identification

*Proper ID of remains *By spouse or Next-of-kin *Obtain written verification *Ensure body is cremated

Building Codes

*Regulations which control requirements for business and residential buildings regarding: -Fire & Safety -Maintenance & Operation -Occupancy & Use -Appearance - Designs, Materials used in construction, parking spaces, plumbing, electrical, RR's, signs, etc.

Rights and Cemetery Plots

*Rights of Ownership *Rights to Inter

Written Authorization

*Signed by individual with primary right to of disposition *Surviving spouse/Next-of-Kin *Signed by all parties if more than 1 individual *Obtain Via Fax individual(s) live in distant location

Requirements

*Spouse/Next-of-Kin, make request in writing to trustee of cemetery. -Funeral Director May be required to attend -Restrictions may be placed for public health reasons.

Testamentary Capacity

*Tesator/Testatrix must know the intent *Know nature and extent of estate *Know natural objects of bounty *is a generous gift, given freely

Probate Law Terminology

*UPC - Uniform Probate Code *PROBATE *PROBATE COURT *DEVISE *DEVISEE *BEQUEST/LEGACY *LEGATEE

Disposition of Cremated Remains

*Written Instructions - Included on authorization form

Public Interest

-1 or 2 Principle grounds upon which disinterment may be authorized by law. -Disinterment and re-interment occur in same location -Used to further some matter. -Gather evidence for criminal/civil cases -State has power to request exhumation *"POLICE POWER" -To affirm/dis-affirm cause of death -Protection from insurance fraud - Greater burden of proof is required than for evidence in a criminal trial. -Provide access to a public st. or remains pose a threat to a public health(contamination of water supply) -Re-internment will occur in a different location.

Revocation

-A will may be revoked by the testator at any time prior to the death of the testator. -A testator can deliberately destroy a will, this constitutes a revocation.

Nuisance Per Se

-Acts, occupation/structures which are nuisances at all times and under all circumstances -May be prejudicial to public morals, dangerous to life, or injurious to public rights. *FUNERAL HOME IS NOT A NUISANCE PER SE, BUT THEY MAY BECOME A NUISANCES IN FACT by circumstances of the location/manner in which it is operated *F.H. MAY BECOME A NUISANCE IN FACT

Amendments/Revocation of Wills

-By act of testator -Operation of the law -Codicil

Covenants NOT To Compete

-Contracts dealing with transfer of ownership -Seller agrees NOT TO COMPETE *Nor a special period or time nor in a specified geographical area *Both are enforceable by law if deemed reasonable

Shipping Cremated Remains

-Designate shipper and method on authorization form -Include release of liability for any loss during shipping -Pack cremated remains in temporary plastic urn with triple container. -Paper trail to track shipment

Prep Room

-Designed and equipped for embalming and preparing dead human remains. -Sufficient size -Secluded from the public -Walls, Ceiling, And floor nonporous for easy cleaning -Proper Ventilation(OSHA) -Sewer & Disposal Facilities -Hot and Cold Running Water -Prep Table -Instruments and Chemicals -Meet local and state sanitary codes.

OTHERWISE - If Done Without Proper Authorization

-Disinterment will be in violation under statute and common law, Usually considered simple larceny.

Private Reasons Due To:

-Dissatisfaction with place of internment -Relocation of family -Internment in wrong location(Not a family plot) -Abandoned/Neglected cemeteries *In these cases exhumation is a matter of statutory regulation(In most cases)/Case law.

Rules & Regulations

-Enactments by an administrative body governing the jurisdiction of that agency. -MUST BE "REASONABLE" -State and Local rules and regulations can determine both the cemetery locating & operation. -Related to POLICE POWER: When Protecting the public health.

Excess Cremated Remains

-Explain that some urns may not hold all cremated remains. -Authorization form should state that excess cremated remains will be returned in a temporary urn.

Scattering Cremated Remains

-Family may express wishes to scatter cremated remains -May be illegal in certain areas -Funeral Director should ensure local, state, and federal laws are reviewed prior to scattering.

State Standards

-Fixed location -Licensed Personnel(FDIC-Funeral Director In Charge) -Access to rolling stock -Facilities for conduction Funerals -Display room with proper number and selection of caskets -Adequate preparation room.

Rights to Inter

-Internment is subject to cemetery rules and regulations such as: -Outer burial container may be required -Flowers/Plants/Trees/Shrubs/etc. -Type of marker *Flats vs. uprights

Cemetery Location

-Location is dictated by: *POLICE POWER - Due to the need to dispose of the dead for public health reasons. *EMINENT DOMAIN - The inherent power of a government to take private property for public use in the U.S. - May be used to obtain land for a public cemetery -Requires just compensation to property owners. *Zoning Ordinances - Same as F.H. - Cemetery not allowed in residential. *REGARDLESS - CEMETERY IS NOT A NUISANCE PER SE.

Right of Disinterment

-May be governed by state statue, Applies to disinterment for public and reasons.

Failure to Removal All Cremains

-Not returning all cremated remains -When cremated remains will not fit in an urn -Remainder discarded in an unethical or careless manner.

Medical Devices

-Pacemakers and Radioactive implants -Ask family about presence of such devices -Authorize removal -Method of disposal -Embalmer should check body -Avoid damaging crematory retort.

Types of Ownership & Operations - Private

-Private Industrial -Company -Corporation (Not for profit and or for Profit) -Interments may be restricted for religious beliefs and or customs.

Types of Ownership & Operations - Public

-Private Industrial -Company -Corporations -Local Municipality: Village, Town, City, County

Cremation Services

-Provides new options -Increased liability due to the irreversible nature of cremation.

Cremation Growth Due To

-Public Acceptance -Higher level of education -Relocation of elderly to "SUNBELT" STATES(FL, AZ) -Immigrants from other cultures who prefer cremation.

ADA - Americans With Disability Act

-To provide individuals with full use and enjoyment of public accommodations. -Requires businesses to remove architectural, communications, and transportation barriers for physically impaired. -Provided it can be done without much difficulty and expense. Passed July 1990 Est. 2 Building Standards: Buildings built after 1-26-93 MUST comply to all ADA requirements. and Buildings built before 1-26-93 have 4 Priorities

Jewelry

-When the family wants jewelry to remain with the body -Have them authorize in writing -And specify in writing that cremation process will destroy jewelry.

Retrieval from the Funeral Home

-Who is authorized to obtain cremated remains from the Funeral Home? Individual(s) designated on the authorization form *Obtain signed receipt *Place in Funeral Home file.

4 Building Requirements For ADA

1st: Ramp; Widen Doors; Cut Curbs: and put in handicap parking. 2nd: Provide public access to areas where good and services are provided. 3rd: Establish access to RR's. 4th: Any other modifications i.e. water fountains; phones, etc.

Private Reasons

2nd Instance upon which disinterment may be authorized by law.

National Cemeteries

A Cemetery created by an act of the U.S. Congress -Burial is typically restricted to eligible veterans of the armed forces, And for eligible dependents.

Devise

A Gift of real estate mode by will

Divorce

A divorce automatically revokes a will to the extent of the property left to the divorced spouse if the court orders a division of property. *If no court ordered division - WILL IS NOT AFFECTED

Bequest/Legacy

A gift of personal property under will

Public Cemeteries

Accessible for burial by an member of the public. -May include: Veterans; Children; Specific Religious Groups(Jewish, Roman Catholic, Protestant, ETC.)

Private Cemeteries

Accessible for burial only by those who are granted permission.

Probate

Act or Process of proving a will

Codicil

An addition/amendment of a last will and testament executed with the same formality as the will.

Will

An instrument executed with required formality by a person making disposition of his or her property(estate) to take effect upon his or her death.

Cemetery

Area of ground set aside and dedicated for the Final disposition of dead human bodies.

Cemeteries

Cemeteries

Rights of Ownership

Cemetery properly is considered PERSONAL PROPERTY even though it is "real estate" used for a specific purpose Cemetery Property is: Licensed for internment and NOT ACTUAL OWNERSHIP OF LAND. -Owner has rights to: Internment/Bury. -Use Driveway for access. -Use an outer burial container. -Have a marker/monument *To have plot cared for and protected -Perpetual or Endowed care *To sell the plot -Must obtain permission from cemetery owner -If no internment in the grace

Probate Court

Court having jurisdiction over estates

Ademption

Extinction/Withdrawal of legacy by testators act.

Private Disinternment

Factors related to "reasonable cause" for disinterment: *Degree of relationship to decedent. *Expressed wishes of decedent *Conduct of persons seeking/preventing disinterment *Length of time since Internment. *Strength of reasons for or against disinterment *Integrity and compassion to provide a secure and comparable resting place for decedent. *Rights and principles of religious body/other institution which granted right to original disposition.

Generally Held Views

Generally speaking the law looks at cemeteries as sacred grounds. -Once a cemetery always a cemetery -Look at disinterments unfavorably unless there is compelling reason to do so.

Holographic

Handwritten by testator/testatrix *Legal if signed by appropriate witnesses

Marriage/Remarry

If a person makes a will and later marries, the marriage may revoke the will in whole or in part, or the will may be presumed to be revoked unless made in contemplation of the marriage or unless it makes provision for a future spouse. -In some states a marriage will not revoke a will completely, but so that the spouse will get the estate that would have been received in the absence of a will.

Spouse's Election to Take Against the Will

In some states surviving spouse may elect to take one-third(1/3) to one half of decedent's property instead of the share provided.

Withholding Services - ADA

Individuals with aids or other such diseases shall not be refused services, i.e. embalming, Nor should there be a surcharge for such services. *Doing so is a violation of the ADA, Family can file action under ADA. *Enforcement by U.S. Attorney General/Private individuals Penalties Remove the violation -1st Violation $50,000 -Subsequent violations $100,000

Soldiers & Sailors

Informal Nuncupative(oral) will by a soldier in the field/a sailor at sea. *DISPOSES OF PERSONAL PROPERTY

NUISANCE

Invasion of a land owners use of property which interferes with the public/another landowners use and enjoyment of his or her property.

Funeral Establishment

Is a FIXED PLACE of business used in the care and preparation of the funeral or disposition of dead human bodies. *The police power of the estate and local government authorized licensing and regulating of Funeral Directors & Funeral Establishments.

Nuncupative

Is an oral will -Dictated by Testator/Testatrix during last illness -Before appropriate witnesses *DISPOSES OF PERSONAL PROPERTY *Afterwards written down

Ordinances

Laws passed by a municipal governing body such as -Town -City -Zoning, Building, Safety, Etc. -Special use permits -Regulatory Specifications

Zoning Ordinances

Laws passed by a municipality by virtue of the police power which regulates the kind of building, residences, or businesses that may be built & used in different parts(zones) of the municipality, municipality zonings, residential, commercial *Note In some municipality there may be either NO ZOINING OR A COMIBNATION OF REDISENTIAL AND COMMERCIAL. *Funeral Establishments -Are classified as commercial use/business use of property, Generally not allowed to operate in residential zones. -New or Changed zoning ordinances may affect existing uses "Grand-Father" clause allows existing non conforming uses to stay with restrictions.

Contractual Purposes

Mentioned previously -Affirming/Dis-affirming cause of death -Payment of Benefits under an insurance policy -Prevent insurance fraud

Uniform Probate Code(UPC)

Model law enacted to achieve uniformity in probate proceedings throughout the U.S. - NOT ADOPTED BY ALL STATES.

Cremation

National Average is 25% - Increases each year.

Legatee

One who inherits person property under will

Death of Legate

One who inherits personal property under will.

Devisee

One who inherits real estate under a will

Funeral Establishments Restrictions

Ordinances Building Codes Covenants Nuisance Regulatory Specifications

Abatement

Proportional reduction of a legacy under a will when assets outs of which such legacy are payable are not sufficient to pay it in full.

Restrictive Covenants

Provisions in a deed limiting the use of property and prohibiting certain uses. *An example: Deed Restrictions

HOWEVER - Disinterment May Be Permitted For:

Public interest, Public cemeteries, Contractual purposes

Classifications of Cemeteries

Public; Private; National

Estate

Real and/or personal property of a deceased person

Disinterment

Removal of a human corpse previously buried in the earth. Removal of entombed body/cremains from their repository.

Typically Not Permitted

Respect for Human desire to NOT have one's remains disturbed. Sentiment(feelings) of survivors Protection of public health

Right to Control Disinterment

Rest with the state when required for evidence in a criminal trial, rest with SPOUSE OR NEXT-OF-KIN in most cases.

Discrimination

Restrictions on interment may be related to: -Religious Beliefs and or customs: Jewish, Roman Catholic, Protestant, ETC. -Military Services: National Cemetery *Most restrictions are WITH PRIVATE rather than public cemeteries due to difference in ownership and or rules and regulations.

EPA - Environmental Protection Agency

Rules Concerning the use and control of formaldehyde and chemicals used.

OSHA - Occupational Safety And Health Administration

Rules related to embalming procedures, F.H. personnel protection and safety.

Regulatory Specifications

State Standards, Prep Room