3rd Quarter Mortuary Law Test 2 Flashcards Preview

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Flashcards in 3rd Quarter Mortuary Law Test 2 Deck (93):
1

Agreement between two or more competent persons which is enforceable by law.

Contract

2

Elements of a contract:

Offer
Acceptance
Consideration

3

Expression of willingness to enter into a contractual agreement

Offer

4

agreement to an offer resulting in a contract

acceptance

5

What the promisor demands and receives as the price for a promise.
How one will pay cash, check, money order, property, etc.

consideration

6

parties to a contract

Offeror
Offeree

7

party who initiates or makes an offer

offeror

8

example of an offeror...

FUNERAL HOME

9

person to whom an offer is made

offeree

10

example of an offeree

family in a funeral home that accepts or rejects

11

types of contracts

express
implied
quasi

12

parties express their intentions at the time of the agreement...either written or oral

express contract

13

examples of express contracts

At need funeral
Pre-need funeral

14

contract terms are assumed by acts or conduct of the parties

implied contract

15

examples of implied contracts

first call

16

implied contracts become_____________

express contracts

17

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.

quasi contract

18

example of quasi contract

emergency medical care

19

liability for funeral expenses

Decedent's estate
Real property
Personal property

20

property of a deceased person

estate

21

anything attached to land or land itself

real property

22

tangible or intangible property, such as personal effects, furniture, vehicles, jewelry, money, stocks & bonds

personal property

23

personal property can be....

tangible or intangible

24

condition of leaving a WILL at time of death, may or may not provide for funeral expenses.

testate

25

state or condition of dying without having made a will...NO WILL

intestate

26

not able to meet debts

insolvent estate

27

liabilities EXCEED the assets
estate is unable to pay debts of the decedent or estate

insolvent estate

28

limitations of the estate

size of estate
reasonableness of charges
local & ethic customs
status in life
director's knowledge
decedent's financial condition

29

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

30

one can meet its debts...assets EXCEEDS the liabilities...more cash than expenses (bills)

solvent estate

31

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.”

32

COURTS consideration when determining reasonableness of charges...

status in life

33

examples of "status (station) in life"

standard of living
religion

34

examples of "lifestyle"

economic
social

35

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

36

The decedent’s financial conditions
Solvency or insolvency of the estate
Related to reasonableness of the charges

Funeral director’s knowledge

37

What type of funeral arrangements are “customary” for the area?
“Traditional” vs. “non-traditional”
Related to station in life

Local and ethnic customs

38

allowable cost items of a funeral includes but not limited to...

embalming
uses of facilities
clothing
cemetery or cremation cost
flowers
OBC
professional services
casket
transportation
headstone/monument
newspaper notice

39

allowable cost items of a funeral may be affected by...

customs
fraternal requirements
cemetery requirements
religion
legal requirements

40

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

41

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..

common law

42

individual or individuals who volunteer to pay the funeral bill

volunteer

43

state or county government who pay the funeral bill

public authorities

44

wrongful act committed by one person against another person and/or their property

tort

45

torts include...

invasion of rights
mutilation
obstruction of funeral arrangements
wrongful withholding

46

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

47

Unauthorized embalming
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

48

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.”

49

In order to embalm you should always have ___________, from _____________________________.

written permission
individual w/ right to authorize embalming

50

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

51

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)

52

examples of obstruction of funeral arrangements by funeral director...

failure to proceed with selected funeral arrangements...especially due to non-payment of the funeral

53

LEGALLY, embalming is _________

a form of mutilation

54

altering of an object or dead human body from its original condition

mutilation

55

right of possession implies receiving the _________________ in the same condition as at_________. Until permission to embalm is given

receiving the body
time of death

56

mutilation includes...

unauthorized removal of
facial hair
tissue, organs, & medical devices

57

what types of restorative art procedures are mutilation?

Invasive beyond normal RA processes

58

Postmortem examination of organs to determine cause of death.

autopsy

59

Postmortem examination of tissues to determine cause of death.

dissection

60

exceptions to UNAUTHORIZED AUTOPSY...

Contractual
Payment of insurance benefits
Required to determine cause of death
Life insurance

61

Public officer
Duty to investigate cause of death
Question or accident, suicide, or homicide might be evident
Or no physician in attendance

Coroner
Medical Examiner
Justice of the Peace

62

Liens, attachments, and replevin do not apply to a dead human body.
Body is not “property.”
Related to refusal to surrender upon demand.

Wrongful withholding

63

A claim or charge against property for payment of some debt.

lien

64

an action to recover possession of personal property...example a car

replevin

65

other torts involving the FD

negligence
omission
commission

66

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.

negligence

67

doing something which a reasonable prudent person WOULD do under ordinary circumstances...

omission

68

doing something which a reasonable and prudent person would NOT do under ordinary circumstances

commission

69

types of negligent acts...

negligent embalming
Inadequate disinfection, preservation, and restoration.
Early decomposition
Especially when shipping remains.

70

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

71

Negligent Acts:
Safeguarding the body
Body and personal effects
Privacy and confidentiality
Information about the decedent, family, etc.

Defective merchandise
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

Transportation
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.

Aftercare
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

72

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.

73

Other negligent conduct

Any act of omission or commission
Performed by the funeral director
While completing the duties and responsibilities of professional licensure.

74

Responsibility for wrongful acts (torts)

liability

75

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

76

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

volunteer drivers

77

Drivers Under the direction and control of the funeral director
Liable for their actions
Funeral home employees or agents

agent drivers

78

Automotive equipment made available for hire.
Funeral director is liable
When such cars and drivers are held as their own.

livery

79

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)

funeral establishment

80

types of specific premises...

funeral home
church
cemetery
other facilities where funeral rite is held

81

level of care depends on...

status of the visitor
trespasser
invitee
business visitor

82

not invited...very little degree of care is necessary...

trespasser

83

social guests
those who attend the visitation and/or funeral service.
entitled to a very high degree level of care

invitee

84

technically NOT an invitee..
still require a HIGH degree level of care

business visitors

85

these two require HIGH DEGREE LEVELS of care...

invitee
business visitor

86

very little degree level of care is required for...

trespassers

87

Resulting from grief, wounded pride, severe disappointment, indignation, shame, public humiliation, despair, etc.

mental suffering

88

mental suffering is usually accompanied by __________ or an __________ or ________________ act.

physical injury
outrageous intention
grossly negligent

89

committed with the intention or purpose of causing harm.

intentional act

90

committed with complete disregard for proper conduct

outrageous act

91

committed with complete disregard for acting as a prudent person would under ordinary circumstances.

gross negligent act

92

intentional act
outrageous act
gross negligent act
are all applicable to...

personal service contract

93

Involves such personal knowledge, skills or confidence that it can only be performed by the person with whom it is made. Both parties should recognize that any breach will usually cause anguish.

Furthermore....
Involves any contract between the funeral director and family.
Torts we have already discussed.
Only a licensed funeral director qualified to provide professional service to the family.

personal service contract