3rd Quarter Mortuary Law Test 1 Flashcards Preview

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Flashcards in 3rd Quarter Mortuary Law Test 1 Deck (116):
1

Rules of civil conduct commanding what is right and prohibiting what is wrong “Blackstone’s definition.”

LAW

2

Branch of law which relates to matters concerned with disposal of the dead.Text book definition (Stueve/Gilligan)- Rules and principles that society has established for handling and disposition of the dead.

Mortuary Law

3

Mortuary Law is also known as mortuary ________________

Jurisprudence

4

“The Pyramid of Law”

Stare decisisCase lawOrdinancesAdministrative lawPolice powerStatutory law/statutesConstitutional lawCommon law

5

-Non-legislated principles and rules of action.-Predicated upon usage and customs.-Rooted in English and early colonial law.-Customs which have become recognized by the courts as binding on the community (Business Law definition)

Common law

6

-Written document containing fundamental principles of government.-Detailing the Powers and duties of a government.-Guarantees certain Rights of the people – societies evolved from small family units to groups-These two principles constitute the “Law of the land” – the needs of the basic / common need for survival-Embodying both Federal and individual state constitutions

Constitutional law

7

-Particular law enacted by a legislative body.-United States Congress / Federal Government-State legislatures / State Government

Statutory law - statutes

8

Inherent power of every government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens.

Police power

9

-Body of law created by federal and state administrative agencies.-Implements their power and duties.-Rules, regulations, orders, and decisions.

Administrative law

10

Appointed governmental body charged with implementing particular legislation and have rule making authority.

Administrative agency

11

OSHA is an example of

Funeral Administrative Agencies

12

Developed naturally as societies evolved from small family units to groups, tribes, villages, etc. Which met the basic and common need for survival.Based on human experience and the good for all members of society

Common Law

13

EXAMPLES of Police Power in Mortuary Law

Licensure requirements Health Standards Business Operations

14

Law passed by a municipal governing body.Village, town, cityRelated to matters not already covered by federal or state law.

Ordinance

15

Municipal Laws in Mortuary Law...

Zoning- Commercial vs. ResidentialBuilding Code- Electrical; Plumbing; etc.Safety Code- Exits signs, Emergency Evacuation Routes

16

Court decisions that established precedent principles.Determines the “constitutionality” of a statute, rule, or regulation.

Case law

17

Determines if the Supreme Court will hear the case.

Writ of certiorari

18

When an issue is resolved by a courtEstablishes a “precedent” or “principal”Controls future court decisions“Like cases” decided in “like manner”Very important in mortuary law

Doctrine of Stare Decisis

19

Sources of mortuary law

State laws and regulationsCase law and stare decisisCommon lawFederal law

20

Principle regulators of the funeral service profession.Based on a state’s “police power.”Delegated to an administrative agency (TFSC)

State laws and regulations

21

Applied to matters related to mortuary law.Property rights in a dead human body.Liability for payment of funeral expenses.General Rule of descent with regards to rights & duty of disposition – spouse, children, etc

Common law

22

Federal Trade Commission to protect consumers / prevent monopoliesOccupational Safety and Health Administration-concerned mostly with refineries / petroleum industriesAmerican with Disabilities Act – make accessible for those who are disabled. Federal Wage and Hour

Federal laws

23

Body of a human being (identified or unidentified)Deprived of lifeNot yet entirely disintegrated

Dead human body

24

Antiquated term for dead human bodySynonymous term used for dead bodyMust also meet all 3 conditions to be legally dead

Corpse

25

Would dust of a "long dead body" be classified as a dead human body?

NO

26

State of complete and irreversible cessation of metabolic (chemical & physical) processes.Leading ultimately to dissolution of the organs.In 1950 court case it was defined as the cessation (stoppage) of circulation (heart) and respiration (lungs)

Death (the new legal/medical definition)

27

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

Brain death

28

electroencephalogram abbreviated is

EEG

29

Measures electrical activity in the brain. “An individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem.”

EEG = electroencephalogram

30

Organs, tissues, eyes, bone, arteries, blood, other fluids, and any other portion of a human body for transplantation.

Uniform Anatomical Gift Act (UAGA) definitionof Body parts

31

UAGA stands for

Uniform Anatomical Gift Act

32

After removal of a body part, without unnecessary mutilation. Custody of the remainder of the body rests with the ______________________

person who otherwise has the right to control final disposition.

33

Property and property rights in a dead human body.

No property theoryProperty theoryQuasi-property theory

34

Based on early English law.Dead human body within exclusive control of the church.No individual had property rights in a dead body.Therefore, dead body is the property of no one.No “property” in a dead body.

No property theory (Ecclesiastical Theory)

35

No longer an accepted theory!Opposite ideaDeveloped as law became more “secular” or non-religious.Rather than “ecclesiastical” or church based.Dead body now seen as “property” of the surviving family member.

Property theory

36

Currently 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 final disposition only.

Quasi-property theory

37

The bundle of rights is the:Right to ____________ for the purpose of _____________.Right to ________________ to be used within ___________ of the law.Right to _____________ from __________ of the body.Right to _____________ of the body.

take the body final disposition.allow body parts confines exclude others possession dispose

38

police power of the government requires proper ___________________________________

disposition of a dead human body.

39

“statutes which impose criminal penalties for the failure to _______or________ a corpse within a _____________ after death have been applied to ______________.”

Bury or incinerateReasonable timeFuneral directors

40

Methods of final disposition

Burial Entombment Cremation Burial at sea Anatomical donation

41

Most common form of disposition.Lawful in property dedicated as a public or private cemetery.Or private property in some rural areas.Land dedicated as a “family cemetery.”

Burial

42

Second most common form of disposition.CryptMausoleumBuilding dedicated for this purposeIndividual or family structures

Entombment

43

Legal if crematory is properly licensed.Compliant with state and local laws.Due diligence (3rd party crematories)Not “technically” a method of disposition.But a step in a mode of final disposition. TEXAS states must hold remains 121 days before declaring them abandoned.

Cremation

44

Inurment - cremains placed in an urn.Placed in a niche in a columbarium.Buried in a cemetery.Scattered.

Disposition of cremains

45

Scattering gardenCemeteryOpen seaThree nautical miles from shoreline. (6,080 ft)Must be reported to Environmental Protection Agency (EPA)

Scattering cremains

46

Provided under Maritime Law.Protect health and safety of crew and passengers.Death aboard a ship at sea.At least three nautical miles from the shoreline.Body must be weighted.Placed in a special shroud.Or weighted casket.With holes drilled in casket shell.Banded to prevent opening.Remains must sink rapidly and permanently to ocean floor.Notify Environmental Protection Agency (EPA)

Burial at sea (Death aboard a ship at sea)

47

All states have ________ when concerning anatomical donation.Which is a legal requirement for disposition of a dead human body.

statutes

48

Community standards for a decent burial

Protection of public healthPublic morality and common decencyRespect for the dead

49

Placing cremated remains in an Urn.Placing cremated remains in a Niche in a Columbarium.

Inurnment

50

Funeral homes are liable for the actions of ________________ crematories, so they must do their ______________________.

3rd partyDue diligence

51

Dead human body intended solely for scientific study and dissection.

Cadaver

52

all states have statutes allowing the decedent or his/her survivors to ______________________

make a gift to medical science.

53

Law permitting a person of legal age and sound mind to give all or any part of his/her body.

Uniform Anatomical Gift Act.

54

When does the Uniform Anatomical Gift Act take effect?

upon his/her death.Or gives the right to another.

55

requirements for a decent burial/final disposition

community standardsconsiderationsstatutes

56

this is an obligation...

duty

57

this is a privilege

right

58

primary duty of final disposition rest with the...

householdersurviving spousenext of kin

59

one who owns or controls real estate where death occurs. Duty is to notify the proper authorities

householder

60

widow (female) or widower (male)NOT a blood relative

surviving spouse

61

one's relatives collectively- Referring to BLOOD relationship or adopted into the family.

next of kin

62

Legally, a surviving spouse is NOT considered...

kin/next of kin

63

order of Next-of-kin

Children of proper age (18 or older)Parent(s)Sibling(s) -Typically the oldest brother(s) or sister(s)More distant kin -Aunts, uncles, cousins, etc.

64

some states do REQUIRE the signature of both...

ParentsSiblings

65

The order of next of kin is based on...

general rule of priority or statute of descent & distribution

66

The general rule of priority or statute of descent & distribution is NOT...

an iron clad rule in all states

67

The duty of burial rests with the...

spouse or next-of-kin

68

secondary duty of final disposition falls upon...

Public authorities such as:StateOr other governmental body or authority

69

possession and control of the body attaches at the....

moment of death

70

primary right of final disposition and general rule of priority

wishes of decedentsurviving spousenext of kinpersonal representativeguardianvolunteerfuneral director

71

Considerations of WISHES OF DECEDENT...

Pre-need/if writtenWillOther document or declarations -Written or Orally

72

making funeral arrangements in advance with no payment

pre-planned

73

making funeral arrangements in advance with payment

pre-funded

74

instrument executed with required formality by a person making disposition of his/her property to take effect upon his/her death.

will

75

other documents or declarations

written instructionsoral instructions

76

important factors to consider about wishes of decedent

Decedent's mental capacityProximity of expression of preference to time of death. -Ex: If the preference was expressed in close proximity to death, courts will give greater weight than if preference was made years prior to death.

77

Primary right of final disposition generally goes to...

Surviving spouseWidow/Widower

78

Based on general rule or priority or statute of descent & distribution, how is a DEGREE OF KINDRED COUNTED?

Each generation is one degree, counting to a common ancestor

79

If a child is legally adopted they are ______________

considered KIN

80

person who represents and settles the estate of deceased person(s)

personal representative

81

individual appointed by the will to carry out its provisions and settle the estate

executor/ executrix

82

types of personal representatives

executorexecutrixadministrator administratrix

83

An Executor is a____________

male

84

anyone who agrees to assume the right of final disposition.

volunteer such as:FriendNeighborCo-worker

85

if the family doesn't act concerning secondary right of final disposition then ___________ will step in.

Government: State County (Texas) Local

86

An Executrix is a ___________

female

87

Individual appointed by the probate court to settle an estate.

Administrator/Administratrix

88

Who will step up concerning Secondary Right of final disposition ,as far as government, is contigient on....

the jurisdiction when and where death occurred

89

funeral director undertaking the funeral has lawful rights from what two sources....

1. Those granted and imposed by statutes, ordinances, and regulations. - Licensing regulations allowing the FD to practice profession2. Those arising from the funeral contract. - Rights authorized by the person with paramount right of disposition.

90

An Administrator is a _________

male

91

An Administratrix is a _________

female

92

Judicial appointed person to administer the affairs of another person who is incompetent by virtue of age or legal disability.Prior to decedent’s death.

Guardian

93

FUNERAL DIRECTOR’S DUTY IN CASE OF CONFLICT

1. Hold body until proper party authorizes its disposition2. Should not decide or attempt to influence the decision3. Should inform the family no action will be taken until parties come to a settlement4. Or until courts decide5. Above all remain neutral

94

A funeral director should continue to ____________________ until a family reaches an agreement.

offer options

95

What are these....Laws and licensing regulationsAuthorize and empower the funeral director to practice the profession.Related to all actions required for the funeral process.

Statutes, ordinances, and regulations

96

There should be a ________________between the funeral director and the individual with the right of disposition. It is REQUIRED.

funeral contract

97

“The funeral director has __________in his professional capacity with respect to a _________ until such time as a _____________is entered into between himself and another, either ________ or _________.”

no rightsdead bodyvalid contractexpresslyimplicitly

98

What type of contract is a First Call?

Implied

99

What type of contract is a statement of funeral goods and services selected?

Express

100

if a person dies testate, they__________

had a will

101

if they die intestate, they ____________

did not have a will

102

mortuary law is also known as Funeral ____________Law

service

103

mortuary law is also known as _______________ law.

funeral

104

FTC is an example of.......

funeral administrative agencies

105

TFSC- Texas Funeral Service Commission is an example of......

funeral administrative agencies

106

Would bones of a skeleton be classified as a dead human body?

no

107

Would a partially dismembered body be classified as a dead human body?

YES

108

must meet all three of these conditions to be "legally" dead.

1. body of human2. deprived of life3. not yet entirely disintegrated

109

“Property is often conceptualized as a__________________

bundle of rights

110

The ‘bundle of rights’ which have been associated with property include the right to _____________.

possess useexcludeprofitdispose

111

Dead human body is the __________of the surviving family member with a _____________.

quasi-property “bundle of rights.”

112

Promote and protect the public health.Public morality for a “decent” burial.Necessitates the disposition of the dead by regulated methods

Necessity of final disposition:

113

three nautical miles from shoreline must be reported to environmental protection agency (EPA)

burial at open sea

114

provided under maritime lawprotect health and safety of crew and passengers

death and burial at sea

115

Receiving institution of a cadaver has the right to _________________refuse the donation.

refuse the donation.

116

Anyone who agrees to assume the right of final disposition.

Volunteer