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Funeral Law II

Pre-Midterm

QuestionAnswer
Three federal agencies which have enacted administrative rules & regulations that pertain to funeral service. Federal Trade Commission, OSHA, EPA
Zoning laws fall under which source of funeral service law? Local Ordinances
Define preemption. If a dispute exists between state and federal law, federal law is enacted.
Define police powers as it refers to statutory law. Laws determined by government regarding licensure, health standards, and business operations to protect its citizens.
Compare and contrast and ordinance and a statute. An ordinance is passed by a municipal body, covering things not already covered by federal or state law (zoning, building, safety, etc) while a statute is a law enacted by a legislative body.
Define property theory as it relates to dead bodies. Dead body is personal property of the next of kin, and therefore the next of kin could sell the body if desired. This has never been held as valid property law.
Define the non-property theory as it relates to dead bodies. Used in Europe hundreds of years ago -- since death was a spiritual matter, church was the only entity who had right to take possession of dead body. In practice, church usually took possession and directed the disposition w/o input from the family.
Define quasi-property theory as it relates to dead bodies. Currently in place; there's no personal property in the body, but there are certain rights next of kin possesses w/ regard to the disposal of body. Next of kin/person w/ authority has right to direct disposition but cannot sell the body for profit.
Which property theory (property, non-property, quasi-property) is the only accepted theory relative to the treatment of dead bodies? quasi-property
List five methods of disposition. burial, entombment, cremation, burial at sea, anatomical donation.
According to the EPA, what is the required water depth to bury a body at sea? 600 feet
Give an example of an implied oral contract that is binding relative to funeral service. Nursing homes - family has instructing facility to call a specific funeral home - this funeral home has an implied contract to do the removal.
Define consanguinity. Blood relation of persons -- for our purposes, consanguinity is the term that determines who is the closest next of kin to the deceased person.
List the order of persons who have the right of disposition. This includes knowing rights of spouses, divorces spouses, separated spouses, children, adopted children, step children, siblings and parents 1: surviving spouse, 2: children, 3: parents, 4: siblings, 5: grandchildren, 6: grandparents
Determine who has right of disposition if dispute arises. Know difference b/t dispute of 2 persons w/in same right of disposition, such as sisters of deceased, & dispute between 2 persons of different rights of disposition, such as parent & daughter. different rights of disposition: funeral director follows law disposition; same rights: wait til they come to an agreement, or the court decides.
Define stare decisis. Once a particular issue is resolved by a court, a precedent of principle is established which will control future decisions by the court.
According to the EPA, how many nautical miles offshore, must a ship be in order to bury a body at sea? 3
Define actual custody. Physical possession of the dead human body.
Define constructive custody. Having the authority to control disposition although another party has physical possession.
Mr. Smith dies in Pleasant Pastures 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 actual and constructive custody? Nursing home has actual custody; funeral home and family have constructive custody.
Define paramount right. The highest right among other lesser rights.
With whom does the secondary right of disposition rest? State (government)
List the formalities required in the Uniform Anatomical Gift Act. Decedent was of sound mind, majority age, and has written instructions signed by two witnesses.
If the decedent wishes to donate his body to science and expresses his/her wishes in writing, who can overrule that decision? Nobody
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
The medical term for a dead human body. Cadaver
List the 3 criteria of the Uniform Determination of Death Act, which is the basis for most state definitions of death. Body of a human being, not disintegrated, without life (brain/clinical death).
In the Uniform Determination of Death Act, does skeletal remains constitute a corpse? No
What right does an adopted child have with regard to the disposition of a parent? Same as biological children.
List the order in which duty to dispose of a dead body is required if no one else steps forward. Householder - surviving spouse - next of kin - public authorities
Define 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)
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. Fitness for a particular purpose.
Define kin. One's relatives collectively; referring to blood relationship (legally, the surviving spouse is not a kin).
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. Merchantability
While making arrangements for a lady whose husband had 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? Wait until they reach an agreement -- or until a court decides.
List the 3 sources of Duties of a Funeral Director. Statutory duties, contractual duties, common law duties.
Explain what is meant by Fitness for a Particular Purpose warranty and give an example. The expectation that merchandise which is purchased will function in the specific way for which it was purposed (casket for a large person).
Explain what is meant by Merchantability Warranty and give an example. Merchandise will function in the way an average consumer expects it to (casket will close properly)
Define tort. A wrongful act committed by one person against another person or his/her property.
Explain whether you can refuse to release a body to a family if they owe you a balance on a previous funeral bill. No -- the funeral director must surrender the body upon demand.
Explain what options you have for providing or not providing service to a family who owes you a balance on a previous funeral bill. You are not obligated to provide service in the future.
Distinguish between a common and private carrier. A common carrier must offer its vehicles to the public for a fee (i.e. an airline) but a private carrier uses vehicles for specific purposes and can decline that service.
Define compensatory damages. Payment imposed by a court upon an individual or entity to be paid to a harmed person to compensate for the loss they suffered.
Define punitive damages and tell when they may be awarded. Payment imposed by a court upon an individual or entity to punish them for wrongdoing/gross negligence.
Define 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.
Can a funeral home charge a fee for embalming a body with a contagious disease, such as a person dying with HIV / AIDS? No
Give another name for disinterment. Exhumation
Define disinterment. The removal of a human corpse previously buried in the earth; removal of a dead body or remains from its place of repose after disposition has been completed.
Define eminent domain and tell how this would apply to disinterment. The inherent power of a government to take private property for public use (aka government can order an exhumation)
List and describe three types of cemeteries. 1: public - for profit or municipal, open to anyone who purchases; 2: private - religious or family cemetery, must be a member; 3: national - fed gov't armed forces
Explain what is meant by disinterment for public purposes. Exhumation for evidentiary purposes - criminal or civil cases
Define indemnification. The promise of one person to protect another person from a lawsuit.
Is a fax authorization sufficient for cremation authorization? Dependent on the state - yes - but keep the original.
Give an example of statutory duties of a funeral director. Completing death certificates, health issues (embalming), complying with laws (statement of goods & services), knowledge of state laws
Give 3 examples of contractual duties of a funeral director. 1: safeguarding the body; 2: perform embalming/directing; 3: provide specific casket in contract
What is meant by safeguarding a body? Keep the body in at least the same condition it was received in.
Describe what is meant by a covenant not to compete? Contract with funeral home and former employees/owners that they won't open a business in the same service area for a specific period of time.
Is the following clause allowed in a covenant not to compete? The previous owner will never practice in the county of the funeral home, nor in any county in which the funeral home chooses to operate a funeral home in the future? No - has to have a REASONABLE time restriction.
Created by: jhammes1