Flashcards in 3rd Quarter Mortuary Law Test 3 Deck (136):
Laws passed by a municipal governing body.
TOWN or CITY
Zoning, building, safety, etc.
Special Use Permits
Matters not already covered by federal and/or state laws.
Laws passed by a municipality by virtue of the police power which regulates the kind of building, residences, or businesses that may be built and used in different parts (zones) of the municipality
Issued by local municipalities.
Grant permission to use a building or facility for a special or specified use or purpose.
Special use permits
requirements for construction, maintenance, operation, occupancy, use, and appearance of the building.
a FIXED PLACE of business used in the care and preparation for the funeral and/or disposition of dead human bodies.
the _________________ of the state and______________authorizes the licensing and regulating of __________________ and funeral establishments...
Funeral establishment RESTRICTIONS
In some municipalities there may be either __________ or _____________________
Combination of Residential & Commercial
Funeral Establishments...are classified as ____________ or ____________ of property.
Generally not allowed to operate in____________.
_______________ zoning ordinances may affect existing uses
new or changed
allows existing non-conforming uses to stay with restrictions
Issued by local municipalities.
Grant permission to use a building or facility for a specified use or purpose such as hospitals, churches, etc.
Special Use Permits
regulations which control requirements for business and residential buildings
building codes regard...
fire & safety.........
maintenance & operation........
occupancy & use......
Provisions in a deed limiting the use of property and prohibiting certain uses.
example of restrictive covenants
contracts dealing with transfer of ownership...seller agrees not to compete.
covenants not to compete
what are requirements in NOT TO COMPETE covenant with...
For a specified period of time........
Nor in a specified geographical area........
Both are enforceable by law if deemed reasonable
Invasion of a Landowner’s use of property which interferes with the public or another landowner’s use and enjoyment of his/her property.
Acts, occupations, or structures which are nuisances at all times and under all circumstances.
May be prejudicial to public morals, dangerous to life, or injurious to public rights.
nuisance per se
Funeral homes are not _______
nuisance per se
Acts, occupations, or structures which are not nuisances per se, but may become this by circumstances of the location or manner in which it is operated.
Nuisance in fact
A funeral home may become a _______________________
nuisance in fact
types of federal administrations
Rules related to embalming procedures, funeral home personnel protection and safety.
Rules concerning the use and control of formaldehyde and chemicals used by embalmers.
to provide individuals with full use and enjoyment of public accommodations, requires businesses to remove architectural, communication and transportation barriers for physically impaired, provided it can be done without much difficulty and expense
Passed July 1990 – establishes two standards: building built after January 26, 1993 must comply to all ADA requirements and buildings built before January 26, 1993 have four priorities
AMERICANS WITH DISABILITIES ACT...(ADA)
EPA stands for...
environmental protection agency
The ADA require these things on any building built BEFORE January 26,1993,
1. ramps, widen doors, cut curbs, put in handicap parking.....
2. provide public access to areas where goods and services are provided.....
3. provide public access to restrooms i.e., toilet seats, mirrors, sinks, towel dispensers and grab bars.......
4. any other modifications i.e., water fountains, phones, etc,.
Individuals with AIDS or other such diseases shall not be refused service.
Nor should there be a surcharge for such service.
THIS IS AN EXAMPLE OF........
It withholding services occur...
It is a violation of the ADA......
Family can file action under ADA.
withholding services is ENFORCED by....
U.S. Attorney General......
penalties for WITHHOLDING SERVICES
1. Remove the violation.....
2. First violation is $50,000.....
3. Subsequent violations is $100,000
State Standards for Funeral Homes are as follows....
Licensed personnel – FCIC – however, owner of the funeral home doesn’t have to be a licensed funeral director.........
Access to rolling stock - livery..........
Facilities for conducting funerals.........
Display room with proper number and selection of caskets.
Adequate preparation room
State Standards for the Prep room
Designed and equipped for embalming and otherwise preparing dead human remains........
Secluded from the public.......
Walls, ceiling, and floor non-porous and easy to clean......
Proper ventilation (OSHA)........
Sewer and disposal facilities..........
Hot and cold running water.........
Instruments and chemicals...........
Meet local and state sanitary codes.
area of ground set aside and dedicated for the final disposition of dead human bodies
______________regulates cemeteries as of ____________________
Texas Funeral Service Commission ........September 2003
_______________ cemeteries are regulated under the ________________________
Department of banking
classifications of cemeteries
1. Accessible for burial by any member of the public.
2. May include designated “sections”
3. Veterans, children, specific religious groups (Jewish, Roman Catholic, Protestant, etc.)
Types of ownership and operation of public cemetery
1. Private individual, company, or corporation....
2. Local municipality, such as village, town, city, or county
accessible for burial only by those who are granted permission
types of ownership of private cemetery
1. Private individual, company, or NON-PROFIT corporation....
2. Restrictions for religious beliefs and/or customs
Cemetery created by an act of the US Congress
national cemetery is typically restricted to eligible vets of what armed forces?
Eligible dependents in National cemetery
in a national cemetery burial is...
next available & spouses are stacked
eligibility for national cemetery should be...
established prior to interment....
what is required for burial in National cemetery
Proof of service in military....
Veteran's service record (VA form DD-214)...
discharge from military should be...
under conditions OTHER THAN dishonarable
cemetery location is based on...
police power to protect public health........
just compensation to property owners.....zoning ordinances
inherent power of a government to take private property for public use.
zoning ordinances for cemeteries is the same as ______________, because they are NOT allowed in __________.
a cemetery is NOT a___________________
nuisance per se
enactments by an administrative body governing jurisdiction of that agency......
must be reasonable.....
dictates cemetery location & operation.....
related to police power
rules & regulations of cemeteries....
rules and regulations of cemeteries includes both....
state & local rules & regulations
discrimination concerning cemeteries
1. restrictions on interment....
2. religious beliefs and/or customs
3. military service
4. more restrictions on private cemeteries
5. differences in ownership and/or rules & regulations
rights of ownership concerning plots are considered ________________ even though it is _______________ used for a specific purpose.
license for interment....
right of interment....
use of an OBC...
marker or monument (as allowed by cemetery)
plot owners have the right to.....
have plot cared for & protected.....
perpetual or endowed care......
sell the plot
in order to sell a plot the plot owner must ....
meet cemetery requirements....
obtain permission from cemetery owner
Right to Inter is subject to....
use of OBC.....
specific types of markers (flat or uprights)
desecration of graves is....
a criminal offense.
graves are based on....
public sentiment dictates that cemetery is ______________ and should not be disturbed. Generally speaking that is how the LAW sees it also
a grave should only be disturbed if there is.....
once a cemetery ______________
always a cemetery
typically disinterments are looked at _____________________, unless there is a compelling reason..
Removal of a human corpse previously buried in the earth.
Removal of entombed body or cremains from their repository.
disinterment also means...
exhumation is typically....
exhumation is typically not permitted due to .....
respect for human desire to not have remains disturbed...
sentiment of survivors....
protection of public health
disinterment may be permitted for...
These are examples of what????
One of two principal grounds upon which disinterment may be authorized by law.............
Disinterment and reinterment occur in same location..........
Used to further some matter of public interest........
Gather evidence for criminal or civil case............
State has power to request exhumation..........
Affirm/disaffirm cause of death.......
Protection from insurance fraud.........
Greater burden of proof is required than for evidence in a criminal trial............
Provide access to a public street..........
Or remains pose a threat to public health (contaminate water supply)..............
Reinterment will occur in a different location.
public interest concerning disinterment
Second ground upon which disinterment may be authorized by law........
Disinterment for purpose of reinterment in another location.
private reasons for disinterment
private reasons for disinterment is due to...
Dissatisfaction with place of interment.....
Relocation of family.....
Interment in wrong location (not a family plot).......
Abandoned or neglected cemeteries
private reasons for exhumation is a matter of ________________ in most states or ______________________
requirements to authorize exhumation for private reasons
Spouse or next of kin make request in writing to trustee of cemetery..........
Funeral director may be required to attend......
Restrictions may be placed for public health reasons.
These are concerning what?????
Factors related to “reasonable cause” for dininterment......
Degree of relationship to decedent........
Express wishes of decedent.........
Conduct of persons seeking or preventing disinterment......
Length of time since original interment........
Strength of reasons for or against disinterment.........
Integrity and compassion to provide a secure and comparable resting place for decedent..........
Right and principals of religious body or other institution which granted right to original disposition...........
contractual purposes of disinterment
Affirming/disaffirming cause of death......
Payments of benefits under an insurance policy........
Prevent insurance fraud
right of disinterment may be __________________________ and applies to ______________________
governed by state statute......
disinterment for public & private reasons
right to control rests with....
State when required for evidence in criminal trial....
Spouse or next of kin in most other cases
disinterment WILL NOT occur _________________________ except upon ___________ & ________________ evidence that persuades a court of _________ that the disinterment is required by justice.
against the will of other relatives.....
disinterment permits must be obtained from _________________
in Texas, written order (permit) must be from _______________ and obtained by the _________________
state registrar or designee........
four parts of necessary permits....
all four parts are required unless....
re-interment is in same cemetery
if done without proper authorization, disinterment will be_________________
in violation under statute and common law
improper disinterment is usually considered...
Some exceptions are allowed to zoning ordinances for professions such as doctors & dentists. These permits are called?
Special use permits
Funeral directing is considered a _____________ not a ______________.
Funeral directing would not qualify for .....
special use permits
model law enacted to achieve uniformity in probate proceedings throughout the United States, not adopted by all states
uniform probate code (UPC)
act or process of proving a will
court having jurisdiction over estates
a gift of REAL ESTATE made by will
(sets the gift under a will) – One who inherits real estate under a will
a gift of PERSONAL PROPERTY under a will
bequest or legacy
(gets stuff by inheritance of personal property under will) – One who inherits personal property under a will.
an instrument executed with required formality by a person-making disposition of his/her property (estate) to take effect upon his/her death.
Requirements for Will:
Legal Age /
Testamentary Capacity /
“legal adult”, age 18 or older, in most states
Testator / Testatrix must know the intent, know the nature and extent of estate, know natural object of bounty
generous gift, given freely
real and/or personal property of a deceased person
Signed by person who makes a will
Witnessed by two or more disinterested witnesses
Usually signed in presence of each other
person who makes a will...
Special kinds of Wills –
Soldiers & Sailors
an oral will, dictated by testator/trix during last illness, before appropriate witnesses, disposes of personal property, afterwards written down.
a type of will; hand-written by testator/trix, legal if signed by appropriate witnesses
a type of will; informal nuncupative (oral) will by a soldier in the field or a sailor at sea, DISPOSES OF PERSONAL PROPERTY ONLY
Soldiers & Sailors will
Amendments or Revocation of Wills by
By act of Testator /
Operation of the Law /
deliberately destroying a will, prior to death constitutes
an addition or amendment of a LAST WILL and Testament executed with the same formality as the will
wills in regards to marriage or remarriage
REVIEW THIS A FEW TIMES
if a person makes a Will and later marries, the marriage may revoke the will in whole or in part. Or the will may be presumed to be revoked unless made in contemplation of the marriage or unless it makes provision for a future spouse.
In some states a marriage will not revoke a Will completely, but so that the spouse will get the estate that would have been received in the absence of a Will.
a distribution problem under the will– proportional reduction of a legacy under a will when assets out of which such legacy are payable are not sufficient to pay it in full.
a distribution problem under the will– Extinction or withdrawal of legacy by testator’s act.
a distribution problem under the will– Spouse’s election to take against the Will
in some states surviving spouse may elect to take one-third to one half of decedent’s property instead of the share provided.
Distribution of Property equal share is given to each of a number of persons, all of whom stand in equal degree to decedent.
per capita (by the head)
Distribution of Property – property divided into lines of descent, share of each line then divided by way of representation, not all parties received an equal share
per stripes (by the root)
Distribution of Property state or condition of dying without having made a will.
Distribution of Property –succession of an heir at law to property and estate of his/her ancestor when the latter had died without a will
spouse, next of kin, if no spouse or children, grandchildren, parents, siblings, grandparents, aunts, or uncles.
DISTRIBUTION OF PROPERTY-TITLE BY DESCENT
Distribution of Property – forfeiture of decedent’s property to the state in absence of heirs.
appointment of Personal Representative, which is the person who represents and settles the estate of deceased persons
administration of an estate
Personal Representatives; male or female, appointed by the will to carry out provisions thereof and settle the estate.
EXECUTOR / EXECUTRIX
Personal Representatives; male or female appointed by the court to settle an estate, estate representation due to intestacy.
Duties of representative
Listing and valuation of a decedent’s assets, Deduct security interest(s) from Real Estate Mortgage, secure loan on parcel of real estate, personal property.
unable to pay debts of decedent and / or the estate
PRIORITY OF CLAIMS AGAINST AND ESTATE IN INTESTACY
Funeral Expenses (preferred claim)......
Last Illness expenses.........
all other expenses.
Instrument in writing, authorizing another to act as one’s agent or attorney. Person is an agent in fact and by law terminates at the time of death of the principal; can be general or specific.
power of attorney
Principal executes a power of attorney, comes into and remains in effect when principal becomes disabled, duties may include but not limited to, Heath-Care decisions, admission to hospital; nursing home’ medical treatment – feeding tubes etc
durable power of attorney
Becomes effective at a future time, that is, it “springs up”, upon the happenings of a specific event chosen by the Power of Attorney (principal’s physician). Often that event is the illness or disability of the Principal, Principal’s physician will determine whether Principal is competent to handle his/her financial affairs.
springing power of attorney