Flashcards in 3rd Quarter Mortuary Law Test 2 Deck (93):
Agreement between two or more competent persons which is enforceable by law.
Elements of a contract:
Expression of willingness to enter into a contractual agreement
agreement to an offer resulting in a contract
What the promisor demands and receives as the price for a promise.
How one will pay cash, check, money order, property, etc.
parties to a contract
party who initiates or makes an offer
example of an offeror...
person to whom an offer is made
example of an offeree
family in a funeral home that accepts or rejects
types of contracts
parties express their intentions at the time of the agreement...either written or oral
examples of express contracts
At need funeral
contract terms are assumed by acts or conduct of the parties
examples of implied contracts
implied contracts become_____________
fictional contract applied by a court for a person who is unable to contract for himself.
Raises an obligation in law where, in fact, the parties made no promises.
example of quasi contract
emergency medical care
liability for funeral expenses
property of a deceased person
anything attached to land or land itself
tangible or intangible property, such as personal effects, furniture, vehicles, jewelry, money, stocks & bonds
personal property can be....
tangible or intangible
condition of leaving a WILL at time of death, may or may not provide for funeral expenses.
state or condition of dying without having made a will...NO WILL
not able to meet debts
liabilities EXCEED the assets
estate is unable to pay debts of the decedent or estate
limitations of the estate
size of estate
reasonableness of charges
local & ethic customs
status in life
decedent's financial condition
Amount of money available to pay funeral expenses.
Are the funeral expenses proportional to the size of the estate?
Related to “solvency”
size of the estate
one can meet its debts...assets EXCEEDS the liabilities...more cash than expenses (bills)
STUDY THIS CARD IN DETAIL...
SIZE OF THE ESTATE...
“As a rule, the estate is primarily responsible to pay the reasonable and necessary expenses for disposing of the body. If the estate has property, the funeral director may look to it for payment of the funeral bill. The funeral bill is not a debt of the decedent but is a charge against the estate and must, at least in part , be paid before any debts left by the decedent are met. The amount of the funeral bill which receives this preferential treatment depends upon state law.”
COURTS consideration when determining reasonableness of charges...
status in life
examples of "status (station) in life"
standard of living
examples of "lifestyle"
Size and solvency of the estate
Right of creditors to collect payment
Station in life of the deceased
Decedent's religious faith
Decedent’s fraternal memberships
Local and contemporary customs
reasonableness of the charges
The decedent’s financial conditions
Solvency or insolvency of the estate
Related to reasonableness of the charges
Funeral director’s knowledge
What type of funeral arrangements are “customary” for the area?
“Traditional” vs. “non-traditional”
Related to station in life
Local and ethnic customs
allowable cost items of a funeral includes but not limited to...
uses of facilities
cemetery or cremation cost
allowable cost items of a funeral may be affected by...
Funeral bill typically the first claim against and estate that will be paid.
Charges must be “reasonable”
Amount may be dictated by state law.
Allowable” vs. “preferential”
priority of claim
May determine who has liability to pay the funeral bill.
Spouse for the spouse
Parents for minor and/or dependent children.
Parent is not liable for the expenses of an adult child..
individual or individuals who volunteer to pay the funeral bill
state or county government who pay the funeral bill
wrongful act committed by one person against another person and/or their property
invasion of rights
obstruction of funeral arrangements
two duties recognized by law that directly impact the funeral director...
1. not to interfere with the right of burial
2. exercise reasonable care to keep funeral home premises in a reasonably safe condition
Unauthorized photos of deceased
Burial in the absence of the Next of Kin
right to privacy & Confidentially
Failure to comply with wishes.
invasion of rights
STUDY THIS CARD...
ACCORDING TO THE FTC...
“Except in certain special cases, embalming is not required by law. Embalming may be necessary, however, if you select certain funeral arrangements, such as a funeral with viewing.” Also, “If you do not want embalming, you usually have the right to choose an arrangement which does not require you to pay for it such as direct cremation or immediate burial.”
In order to embalm you should always have ___________, from _____________________________.
individual w/ right to authorize embalming
examples of obstruction of funeral arrangements by hospital or other institutions..
wrongfully holding or refusing to release remains beyond necessary time to complete autopsy, paperwork, etc
examples of obstruction of funeral arrangements by public officials...
not releasing body within reasonable period of time when the body is held for forensic and/or legal purpose.
Regarding questionable deaths (murder, suicide)
examples of obstruction of funeral arrangements by funeral director...
failure to proceed with selected funeral arrangements...especially due to non-payment of the funeral
LEGALLY, embalming is _________
a form of mutilation
altering of an object or dead human body from its original condition
right of possession implies receiving the _________________ in the same condition as at_________. Until permission to embalm is given
receiving the body
time of death
unauthorized removal of
tissue, organs, & medical devices
what types of restorative art procedures are mutilation?
Invasive beyond normal RA processes
Postmortem examination of organs to determine cause of death.
Postmortem examination of tissues to determine cause of death.
exceptions to UNAUTHORIZED AUTOPSY...
Payment of insurance benefits
Required to determine cause of death
Duty to investigate cause of death
Question or accident, suicide, or homicide might be evident
Or no physician in attendance
Justice of the Peace
Liens, attachments, and replevin do not apply to a dead human body.
Body is not “property.”
Related to refusal to surrender upon demand.
A claim or charge against property for payment of some debt.
an action to recover possession of personal property...example a car
other torts involving the FD
Failure to exercise ordinary care
Lack of due care
Exercised by a wrongdoer who has not acted as a reasonable person would.
Act of omission.
Act of commission.
doing something which a reasonable prudent person WOULD do under ordinary circumstances...
doing something which a reasonable and prudent person would NOT do under ordinary circumstances
types of negligent acts...
Inadequate disinfection, preservation, and restoration.
Especially when shipping remains.
Not maintaining the body in a “suitable condition” pending final disposition such as not embalming or refrigerating.
Failure to honor family requests
Improperly supervising cemetery burial
negligent funeral director
Safeguarding the body
Body and personal effects
Privacy and confidentiality
Information about the decedent, family, etc.
Implied warranties of “merchantability” and fitness for a particular purpose, the funeral director is liable, unless a disclaimer is made on the casket and Outer Burial Container Price List
Funeral Home as a PRIVATE CARRIER is charged with conveying
Body of the deceased and passengers
Safe and non-negligent manner
All funeral home livery (rolling stock)
Failure to exercise ordinary care will result in a breach of contract and the liability.
Proper training and credential for personnel.
“Grief facilitator” vs. “grief counselor” – Funeral Home personnel are Grief Facilitors
Included with malpractice insurance policy
make these cards
Errors in final disposition
Wrong manner and/or placed of final disposition
Wrong grave or wrong cemetery
No outer burial container when one is purchased.
Cremated when should be buried.
Other negligent conduct
Any act of omission or commission
Performed by the funeral director
While completing the duties and responsibilities of professional licensure.
Responsibility for wrongful acts (torts)
Certain restrictions apply
Depending on the relationship between the funeral director and the driver (s).
Some characteristics of a funeral procession:
Cars in close formation of each other / Usually have head lights on
liability for the funeral procession
Drivers that are Not under the direct control of the funeral director
Not funeral home employees or agents
Funeral director has no control
Usually has no liability
Drivers Under the direction and control of the funeral director
Liable for their actions
Funeral home employees or agents
Automotive equipment made available for hire.
Funeral director is liable
When such cars and drivers are held as their own.
Place of business used in the care and preparation for the funeral and/or final disposition of dead human bodies.
Related to general duty clause and general workplace safety provisions (OSHA)
types of specific premises...
other facilities where funeral rite is held
level of care depends on...
status of the visitor
not invited...very little degree of care is necessary...
those who attend the visitation and/or funeral service.
entitled to a very high degree level of care
technically NOT an invitee..
still require a HIGH degree level of care
these two require HIGH DEGREE LEVELS of care...
very little degree level of care is required for...
Resulting from grief, wounded pride, severe disappointment, indignation, shame, public humiliation, despair, etc.
mental suffering is usually accompanied by __________ or an __________ or ________________ act.
committed with the intention or purpose of causing harm.
committed with complete disregard for proper conduct
committed with complete disregard for acting as a prudent person would under ordinary circumstances.
gross negligent act
gross negligent act
are all applicable to...
personal service contract