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funeral law terms
| Question | Answer |
|---|---|
| A governmental body created by legislation empowered to regulate matters or implement laws. | Administrative agency |
| 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) | Administrative law |
| Laws, ordinances, and government regulations setting forth requirements for construction, maintenance, operation, occupancy, use or appearance of buildings. | Building code |
| Court decisions that establish precedented principles. | Case law |
| Customs which were held by a society that became binding in court due to the custom being seen as the right thing to do. Non-legislated principles and rules of action predicated upon usages and customs which the court considers binding on the community. | Common law |
| The fundamental law that establishes the government, limits what government can and cannot do and states the underlying principles to which the government will conform. | Constitution |
| An agreement between two or more competent persons which is enforceable by law. | Contract |
| An offense which is injurious to society as a whole. An action in violation of constitution, statutes, or ordinances | Crime (Criminal Acts) |
| A governmental agency with environmental protection regulatory and enforcement authority. | Environmental Protection Agency |
| The principles of morality, including both the science of good and nature of right, governing individuals or groups; conforming to accepted professional standards of conduct. | Ethics |
| Rules that govern society; A rule of action prescribed by an authority able to enforce its will. Blackstone's definition: Those rules of civil conduct commanding what is right and prohibiting what is wrong. | Law |
| An act showing inherent baseness or vileness of principle or action; shameful wickedness; depravity. | Moral turpitude |
| That branch of law which relates to matters concerned with the right of possession and control of dead human bodies, operation of funeral homes, burial of the dead, and the decedent's estates relating to burial charges | Mortuary law ; also known as or Funeral Service Law or Mortuary Jurisprudence. |
| A law passed by a local municipal governing body pertaining to matters not already covered by Federal or State law (e.g. zoning, building, safety ordinances, etc.). | Ordinance |
| The inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens. | Police power |
| A decision of a higher court which is thereafter followed as an example of other courts; a court decision that determines the decision in a subsequent, similar case. | Precedent |
| The right of the federal government to supercede a state or local government if the two governments disagree on a particular issue. | Pre-emption |
| Enactments by an administrative body governing the jurisdiction of that agency. | Rules and regulations |
| A policy of courts to stand by a precedent and apply it to all future cases where the facts are substantially the same; to stand by things decided. | Stare decisis |
| A law enacted by a federal or state legislative body. | Statute |
| Law created by legislative bodies in contrast to law generated by judicial opinions (case law) and administrative bodies. | Statutory law |
| A law passed by a municipality by virtue of the police power which regulates and prescribes the kind of building, residences, or businesses that shall be built and used in different parts of the municipality. | Zoning law |
| is the promise to protect from a lawsuit. | Indemnification |
| Here is an example: Through the indemnification | clause of the cremation authorization, those family members signing the form promises that any family members agrees to the cremation and they those signing will bear the lawsuit if other family members sue because of the cremation. |
| The physical possession of the dead human body or other property. | Actual custody |
| In the Uniform Anatomical Gift Act (UAGA) part is defined as "organs, tissues, eyes, bones, arteries, blood, other fluids, and any other portion of a human body for transplantation." | Body parts |
| Total and irreversible cessation of brain function as indicated by a flat EEG reading. | Brain death |
| The act of placing the dead human body in the ground; earth burial; also known as Inhumement or Interment. | Burial |
| Dead human body used for medical purposes, including transplantation, anatomical dissection, and study. | Cadaver |
| A phase of somatic death lasting from 5-6 minutes during which life may be restored; the absence of all vital signs | Clinical death / legal death |
| A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage. | Cohabitation |
| 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 | Common-law marriage |
| is the blood relation of persons. For our purposes, -is the term that determines who is the closest next of kin to a deceased person. | Consanguinity |
| The situation whereby one party has a right to acquire actual custody/possession of the dead body although another party has actual physical possession. | Constructive custody |
| Elected or appointed public official of a local community who may or may not have medical training and holds inquests concerning sudden, violent, and unexplained deaths. A public officer whose chief duty it is to investigate cause of death when the questi | Coroner |
| Legal term for a dead human body. The body of a dead human being, deprived of life, but not yet entirely disintegrated. | Corpse Dead human body |
| All remains of the cremated human body recovered after the completion of the entire cremation process including pulverization. | Cremated Remains |
| Method of disposing of the dead body via fire, first attributed to the ancient Greeks. The reduction of a dead human body to inorganic bone fragments by intense heat in a specifically designed retort or chamber. FTC Definition: A heating process which inc | Cremation |
| The location of the retort/cremation chamber which will perform the cremation process. | Crematory |
| Status associated with funeral service practitioner/funeral establishment who becomes legal protector of a dead human body from time of removal until final disposition. | Custodian |
| The cessation of life; irreversible, permanent cessation of all vital functions and signs. | Death |
| Relationship to decedent of his relatives; each generation is one degree, counting to a common ancestor. | Degree of Kinship/Kindred |
| A legal document authorizing an individual/organization to act as the agent on behalf of the principal that terminates upon revocation by the principal or death of the principal or agent and becomes effective upon the principal's becoming incompetent or u | Durable Power of Attorney |
| The placing of a human remains into a crypt in a mausoleum. | Entombment |
| The physical and/or emotional separation for a period of time showing the lack of affection, trust, and regard. | Estrangement |
| The principles of morality, including both the science of good and nature of right, governing individuals or groups; conforming to accepted professional standards of conduct. | Ethics |
| A contract in which the parties express their intentions, either orally or in writing, at the time of the agreement; | Expressed contract a.k.a. explicit contract |
| The conclusive performance of services with respect to the dead human body by one of the legally recognized methods. | Final Disposition |
| A written instrument authorizing one person to do anything for the principal. | General Power of Attorney |
| A judicial appointment of a person to administer the affairs of another person who is incompetent by virtue of age or legal disability. | Guardian |
| One who owns or controls real estate where a death occurs. | Householder |
| One in which terms of the contract are implied by acts or conduct of the parties. | Implied contract |
| The promise of one person to protect another person from a lawsuit. | Indemnification |
| A public officer whose duties may include among other things the investigation of death | Justice of the peace ; also known as Coroner or Medical Examiner. |
| One's relatives collectively; referring to blood relationship (legally, the surviving spouse is not a kin). | Kin |
| 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. | Live birth |
| An elected or appointed official of a local community, with a medical degree, who holds inquests concerning sudden, violent, unexplained, questionable, and unattended death | Medical Examiner |
| A place where dead human bodies are kept until identified and/or released for final disposition. | Morgue |
| 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.) | Non-property Theory |
| The highest right among other lesser rights. | Paramount right |
| Person who represents and settles the estate of deceased people (e.g. executors and administrators). | Personal Representative |
| 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.) | Property Theory |
| A fictional contract applied by a Court for a person who is unable to contract for himself (i.e. medical care, death); an obligation which law creates in the absence of agreement; is invoked by courts where there is unjust enrichment. Function of quasi co | Quasi contract |
| 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. | Quasi-Property Theory |
| A written instrument authorizing one person to act as an agent for another effective only upon a certain event occurring. | Springing Power of Attorney |
| 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. | Uniform Anatomical Gift Act |
| A model law intended to achieve uniformity among the states regarding when/how a medical professional determines when death occurs. | Uniform Determination of Death Act |
| if there is no family, many governmental entities (usually county governments) have made provision for some form of disposition, though it is generally not an expensive option as they are often paying for it. | Public Authorities |
| Giving of one's body for scientific dissection and research, generally to a university medical school. | Anatomical Donation |
| the placement of the human body or body part into a frozen state. The purpose is often to allow for advances in medical research in the future to allow the body to be brought back to life, or allow the body / body parts to be used for some living purpose. | Cryogenics |
| the use of an alkaline solution to dissolve the body into a bone chalk and a sludge that would be flushed into the waste system. This is now allowed in approximately 20 states. | Resomation a.k.a. Bio Cremation a.k.a. alkaline hydrolysis |
| this is the newest form of disposition and is not allowed in most states as a form of disposition | Composting |
| Those appropriate and helpful acts of counseling, personal and/or written contact that come after the funeral | Aftercare; also known as Follow-Up Services or Post-Need Services. |
| The party appointed by the principal to enter into a contract with a third party on behalf of the principal. | Agent |
| Those drivers under the directions and control of the funeral establishment which is liable for the driver's negligent actions. | Agent drivers |
| A person engaged in learning the practice of funeral directing and/or embalming under instruction, direction, or personal supervision of a duly licensed funeral director and/or embalmer; | Apprentice /also known as Intern or Resident Trainee. |
| The party who acquires possession, but not the title, of personal property by one party to another in a bailment. | Bailee |
| A delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract. | Bailment |
| The party who gives up possession, but not the title, of personal property in a bailment. | Bailor |
| One who publicly undertakes to transport from place to place for a stated compensation, the property of any person who may request his services up to the capacity of his facilities (airlines, train, etc.) | Common carrier |
| 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. An award paid to the injured party to cover the exact amount of their loss, but no more. | Compensatory damages |
| A sum of money a wrongdoer must pay to an injured party as compensation for loss or injury. | Damages |
| Research and analysis of a company or organization done in preparation for a business transaction. 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 |
| Situation requiring immediate action or urgency: when exigent circumstances exist the funeral provider might embalm without permission. | Exigent Circumstance |
| 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 |
| An individual, licensed by a state or states, engaged in, conducting, or holding himself out as being engaged in: (1) preparing, other than by embalming, for the burial or disposition of dead human bodies, and (2) maintaining or operating a funeral establ | Funeral director |
| A place of business used in the care and preparation for the funeral and/or final disposition of dead human bodies. | Funeral establishment |
| A printed or typewritten list of goods and services offered for sale by a funeral provider with retail prices. GPL is considered the keystone of the Funeral Rule. | General Price List (GPL) |
| Responsibility for actions and/or other debts; the quality or state of being legally obligated or accountable. | Liability |
| A claim or charge against property for payment of some debt. | Lien |
| A business which has vehicles that people or other businesses can hire. | Livery |
| A breach of contract by a professional person; failure to perform a professional service with the ability and care generally exercised by others in the profession; improper or negligent professional act by a professional person. | Malpractice |
| Mental suffering resulting from grief, severe disappointment, indignation, wounded pride, shame, public humiliation, despair, etc. usually accompanied by physical injury or by an outrageous intentional or grossly negligent act. | Mental anguish |
| 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. | Merchantability |
| Any altering or change made to a dead human body from the time of death, other than by natural causes. | Mutilation |
| Failure to exercise ordinary care; omission to do something which a reasonable prudent person would do under ordinary circumstances or the doing of something which a reasonable and prudent person would not do; the lack of due care (exercised by a wrongdoe | Negligence |
| Payment imposed by a court upon an individual to make statement that the person did commit a tort of some kindbut the tort had no significant loss to the harmed person. A token award to symbolize vindication of the wrong done to the plaintiff award $1 | Nominal damages |
| An act with complete disregard for proper conduct which transcends the bounds of common decency. | Outrageous act |
| Any individual, partnership, corporation, association, government or governmental subdivision or agency, or other entity. | Person |
| Contract which involves such personal knowledge, skills or confidence that it can only be performed by the person with whom it is made; a contract whereby both parties should recognize that any breach will usually cause anguish. | Personal service contract |
| Those who transport only in particular instances and only for those they chose to contact with (funeral home vehicles and livery). | Private (contract) carrier |
| Payment imposed by a court upon an individual or entity to punish the individual (entity) for wrongdoing or gross negligence, not to compensate the plaintiff. | Punitive damages |
| The relationship existing between two states whereby each extends privileges of licensure to licensees of the other state. | Reciprocity |
| An action to recover possession of wrongfully held personal property. | Replevin |
| An itemized written statement provided for retention to each person who arranges a funeral or other disposition. It must include the goods and services selected and prices paid for each, itemization of cash advance items and the total cost | Statement of Goods and Services Selected ; also known as Service Contract. |
| A wrongful act committed by one person against another person or his/her property. A private or civil wrong, other than by breach of contract, for which there may be action for damages. | Tort |
| A funeral director is required to complete certain duties by state statute. | Statutory Duties |
| Uniform Determination of Death Act 3 criteria | Human • Deprived of life – usually by no brain activity • Not entirely disintegrated – in a state such that death occurred “recently” |
| A person fell 4 floors and the responders were not able to get a pulse or for him to breathe on his own | Definition of dead body |
| A person who was in an automobile accident only has some basic brain functions on the EEG, though he is not able to speak or even open his eyes and his heart is still beating. | dead body after a few weeks |
| An arm is found in a wooded area. | not dead body |
| A skull bone is found buried in a cave. | complete a Carbon dating process to determine age. • If older than a set number of years, it is not a dead body, it is an archaeological find • If younger than that set number of years, it is a dead body and would need a death certificate. |
| Methods) of Disposition: | Cremation • Burial • Entombment • Anatomical Donation • Burial at sea |
| Additional Dispositions in some states | Cryogenics • Resomation a.k.a. Alkaline hydrolysis • Composting |
| Uniform Anatomical Gift Act Formalities: | Decedent of sound mind • Majority Age • Written instructions • Signed by 2 witnesses • In most states, Anatomical Donation takes precedence over wishes of the family. |
| The body of an anatomical donation is cremated. what is the method of Disposition | anatomical donation |
| The cremated human remains of a decedent are interred in a grave what is the method of Disposition | cremated |
| Primary right | family members |
| Secondary right | government/state |
| this law is based upon the probate code which regulates how property is distributed after death. | Probate Law |
| Statutory Duties of Funeral Directors examples | Filing Death Certificates • Presenting a General Price List and Statement of Goods and Services • Embalming contagious bodies |
| Contractual Duties of Funeral Directors examples | Safeguarding the body • Privacy • Warranties • Proper Embalming/funeral • Transportation • Aftercare • Bailments |
| Identify some examples of torts that a funeral home/director may commit. | Loss of body, mutilation, wrongfully holding body, injury to invitees, unauthorized photos, misidentification of the body, refusal to allow family to view body |
| To prove a Tort, you have to show harm, which may include mental anguish | t |
| Many administrative laws are enforced by an administrative agency examples | Federal Trade Commission Occupational Safety and Health Administration Environmental Protection Agency. |
| Why must Funeral directors obey federal laws even if there is a state law that is not as strigent? | Pre-emption |
| The Americans with Disabilities Act was passed in 1990 by the US Congress. | Statutory Law |
| The Federal Trade Commission requires each family be given a General Price List at the beginning of any discussion of goods, services or prices. | Administrative Law |
| The City of Ankeny zoning laws prohibits the placement of a crematory in a residential area. | Ordinances |
| The Iowa Supreme Court decided that Pre-need contracts were only valid if the family members chose to enforce them. | Case Law |
| When placing a body in the casket, the body should be placed face up (rather than face down). | Common Law |
| The family selected funeral services for a funeral which cost $13,125. | Contract Law |
| After the death of Mr. Smith, Mrs. Smith was given half of the estate and the otehr half was split among Mr. Smith's kids. | Probate Law |
| "Death" means the 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, |
| "Death" means the condition determined by the following standard: | ordinary standards of medical practice, that person has experienced irreversible cessation of spontaneous respiratory and circulatory functions. event that artificial means of support preclude a determination functions have ceased, |
| "Death" means the condition determined by the following standard: | 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 |
| It is necessary that those with custody of the body dispose of that body. Some states allow for a criminal charges against anyone who does not dispose of a body of which they are obligated to dispose. | t |
| right is the option to act | while the duty is the requirement to act. |
| If a person died on the interstate highway near you, there would be both rights and duties associated with disposition. | The Duty is the fact that we are not going to leave that body on the highway without moving it. It is someone's duty to dispose of the body in some legal manner. Right of disposition is the family's ability to choose how ) to dispose of the deceased. |
| Cremation along with the processing and placement into an urn - though the placement of the urn or the scattering of the cremated remains are not included in the final disposition | t |
| The Environment Protection Agency (EPA) has jurisdiction over burials at sea and have set these guidelines. | At least 3 nautical miles from shore At least 600 foot water depth for non-cremated remains flowers or wreaths which are buried also must be decomposable Caskets should be prepared with at least 6 stainless steel bands, drilled in the casket a 300 lbs |
| The Environment Protection Agency (EPA) has jurisdiction over burials at sea and have set these guidelines. | Must report the burial to the EPA within 30 days f. must have a permit to transport the deceased to sea for burial g. scattering of cremated remains on inland waterways is prohibited in some states. |
| Majority age is an interesting topic. To be of majority age, most states say the person must be either 18 years old or emancipated (freed) from their parents. | t |
| Emancipated can be accomplished in two ways | legal proceedings in which minor petitions the court to allow them to be free from their parents; the other way is for someone under the age of 18 to get married. The court holds that if you are mature enough to get married, |
| If a surviving spouse chooses, he/she may exclude an estranged child of the deceased. | funeral director does not have the right to tell others about the funeral if the person with the right of funeralization does not wish it |
| Once you advertise the visitation/ funeral in the newspaper, it is considered public and the person with paramount right may not have the right to exclude people from the visitation/funeral. | t |
| person decided they wanted a form of disposition that their spouse did not want them to have, the person (obviously while alive) | could sign a legal authorization giving someone else the priority to control the disposition instead of the surviving spouse or next of kin. |
| In both cases above, it does not matter who is paying the bill, as the responsibility to pay, generally does NOT impact the order of priority. | t |
| A funeral director is in a fiduciary relationship with his/her client families. | This means we hold a legal and ethical relationship of trust with our families. They should be able to trust us to look out for their best interests, including their financial interest |
| An example is that the average consumer expects the casket cap to close properly. | Merchantability |
| amily purchases a cardboard casket for a person who weighs 500 pounds, the funeral director has the responsibility to share with the family that this specific casket may not function properly for this specific deceased. | Fitness for a particular purpose |
| In order to have liability for injury, the person driving the car or causing the injury must be an agent of the funeral home. | This includes any agent drivers such as employees and those individuals who are asked by the funeral director to drive the car even if they are not an employee of the funeral home. This does not include volunteer drivers |
| Liveries are companies which provides vehicles to funeral homes for a specific funeral, though the Livery continues to own the vehicle. | t |
| If a person asks to borrow your car a bailment is created with the owner of the car being the bailor and the borrower being a bailee; | bailment |
| If someone gives you a coat to wear while on a trip, a bailment has been created; and | bailment |
| If someone asks you to hold their phone, you are now the bailee and are responsible / liable if anything happens to the phone. | bailment |
| The text tells us that this may mean in some jurisdictions that the plaintiff must show there was a physical injury, caused by one of the following acts: | ntentional acts 2. Outrageous acts 3. Gross negligent (negligence) act 4. Breach of personal service contract |
| The type of damages which is paid by the funeral home if a court finds them guilty of misplacing a decedent's diamond ring. | Compensatory damages |
| The type of damages which is paid by the funeral home if a court finds them guilty of starting a funeral at 10:05 am instead of 10:00 am as promised in the contract. | Nominal damages |
| The type of damages which is paid by the funeral home if a court finds them guilty of intentionally placing the decedent in the wrong casket. | Punitive damages. |
Created by:
jcowing