3rd Quarter Mortuary Law Test 3 Flashcards Preview

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Flashcards in 3rd Quarter Mortuary Law Test 3 Deck (136):
1

Laws passed by a municipal governing body.
Such as:
TOWN or CITY
Zoning, building, safety, etc.
Special Use Permits
Matters not already covered by federal and/or state laws.

Ordinances

2

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

zoning ordinances

3

Issued by local municipalities.
Grant permission to use a building or facility for a special or specified use or purpose.

Special use permits

4

requirements for construction, maintenance, operation, occupancy, use, and appearance of the building.

Building codes

5

a FIXED PLACE of business used in the care and preparation for the funeral and/or disposition of dead human bodies.

funeral establishment

6

the _________________ of the state and______________authorizes the licensing and regulating of __________________ and funeral establishments...

police power....
local government......
funeral directors

7

Funeral establishment RESTRICTIONS

Ordinances........

Building codes.........

Restrictive covenants........

Nuisance........

Regulatory Specifications

8

municipality zonings...

Residential........

Commercial

9

In some municipalities there may be either __________ or _____________________

No zoning...........

Combination of Residential & Commercial

10

Funeral Establishments...are classified as ____________ or ____________ of property.
Generally not allowed to operate in____________.
_______________ zoning ordinances may affect existing uses

commercial use........

business use.........

residential zones.......

new or changed

11

allows existing non-conforming uses to stay with restrictions

Grand-father clause

12

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

13

regulations which control requirements for business and residential buildings

building codes

14

building codes regard...

fire & safety.........
maintenance & operation........
occupancy & use......
appearance

15

Provisions in a deed limiting the use of property and prohibiting certain uses.

restrictive covenants

16

example of restrictive covenants

deed restrictions

17

contracts dealing with transfer of ownership...seller agrees not to compete.

covenants not to compete

18

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

19

Invasion of a Landowner’s use of property which interferes with the public or another landowner’s use and enjoyment of his/her property.

Nuisance

20

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

21

Funeral homes are not _______

nuisance per se

22

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

23

A funeral home may become a _______________________

nuisance in fact

24

regulatory specifications....

Federal standards......
State standards.......
Health codes

25

types of federal administrations

OSHA.....
EPA.....
ADA

26

Rules related to embalming procedures, funeral home personnel protection and safety.

OSHA

27

Rules concerning the use and control of formaldehyde and chemicals used by embalmers.

EPA

28

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

ADA

29

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)

30

EPA stands for...

environmental protection agency

31

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,.

32

Individuals with AIDS or other such diseases shall not be refused service.

EX: embalming.

Nor should there be a surcharge for such service.


THIS IS AN EXAMPLE OF........

WITHOLDING SERVICES

33

It withholding services occur...

It is a violation of the ADA......
Family can file action under ADA.

34

withholding services is ENFORCED by....

U.S. Attorney General......
Private individuals

35

penalties for WITHHOLDING SERVICES

1. Remove the violation.....
2. First violation is $50,000.....
3. Subsequent violations is $100,000

36

State Standards for Funeral Homes are as follows....

Fixed location........
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

37

State Standards for the Prep room

Designed and equipped for embalming and otherwise preparing dead human remains........
Sufficient size.......
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.........
Operating table.........
Instruments and chemicals...........
Meet local and state sanitary codes.

38

area of ground set aside and dedicated for the final disposition of dead human bodies

cemetery

39

______________regulates cemeteries as of ____________________

Texas Funeral Service Commission ........September 2003

40

_______________ cemeteries are regulated under the ________________________

Perpetual......
Department of banking

41

classifications of cemeteries

Public.....
Private.....
National

42

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.)

Public cemetery

43

Types of ownership and operation of public cemetery

1. Private individual, company, or corporation....
2. Local municipality, such as village, town, city, or county

44

accessible for burial only by those who are granted permission

private cemetery

45

types of ownership of private cemetery

1. Private individual, company, or NON-PROFIT corporation....
2. Restrictions for religious beliefs and/or customs

46

Cemetery created by an act of the US Congress

national cemetery

47

national cemetery is typically restricted to eligible vets of what armed forces?

Army....
Navy....
Air force....
Marines....
Coast Guard

48

Eligible dependents in National cemetery

Spouse
Minor children

49

in a national cemetery burial is...

next available & spouses are stacked

50

eligibility for national cemetery should be...

established prior to interment....

51

what is required for burial in National cemetery

Proof of service in military....
Veteran's service record (VA form DD-214)...
Discharge certificate

52

discharge from military should be...

under conditions OTHER THAN dishonarable

53

cemetery location is based on...

police power to protect public health........
eminent domain.......
just compensation to property owners.....zoning ordinances

54

inherent power of a government to take private property for public use.

eminent domain

55

zoning ordinances for cemeteries is the same as ______________, because they are NOT allowed in __________.

funeral homes......
residential areas

56

a cemetery is NOT a___________________

nuisance per se

57

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....

58

rules and regulations of cemeteries includes both....

state & local rules & regulations

59

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

60

rights of ownership concerning plots are considered ________________ even though it is _______________ used for a specific purpose.

personal property.....
real estate

61

plots require...

license for interment....
right of interment....
use of an OBC...
marker or monument (as allowed by cemetery)

62

plot owners have the right to.....

have plot cared for & protected.....
perpetual or endowed care......
sell the plot

63

in order to sell a plot the plot owner must ....

meet cemetery requirements....
obtain permission from cemetery owner

64

Right to Inter is subject to....

cemetery rules....
use of OBC.....
specific types of markers (flat or uprights)

65

desecration of graves is....

a criminal offense.

66

graves are based on....

high regard....
respect...
morality

67

public sentiment dictates that cemetery is ______________ and should not be disturbed. Generally speaking that is how the LAW sees it also

sacred ground

68

a grave should only be disturbed if there is.....

compelling reasons

69

once a cemetery ______________

always a cemetery

70

typically disinterments are looked at _____________________, unless there is a compelling reason..

Unfavorable

71

Removal of a human corpse previously buried in the earth.
Removal of entombed body or cremains from their repository.

Disinterment

72

disinterment also means...

exhumation

73

exhumation is typically....

not permitted

74

exhumation is typically not permitted due to .....

respect for human desire to not have remains disturbed...
sentiment of survivors....
protection of public health

75

disinterment may be permitted for...

public interest...
private reasons....
contractual purposes

76

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..........
“Police power”.......
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

77

Second ground upon which disinterment may be authorized by law........
Disinterment for purpose of reinterment in another location.

private reasons for disinterment

78

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

79

private reasons for exhumation is a matter of ________________ in most states or ______________________

statutory regulation......
case law

80

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.

81

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...........

private disinterments

82

contractual purposes of disinterment

Mentioned previously......
Affirming/disaffirming cause of death......
Payments of benefits under an insurance policy........
Prevent insurance fraud

83

right of disinterment may be __________________________ and applies to ______________________

governed by state statute......
disinterment for public & private reasons

84

right to control rests with....

State when required for evidence in criminal trial....
Spouse or next of kin in most other cases

85

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.....
strong.....
convincing.....
equity

86

disinterment permits must be obtained from _________________

proper authorities

87

in Texas, written order (permit) must be from _______________ and obtained by the _________________

state registrar or designee........
funeral director

88

four parts of necessary permits....

state registrar....
local registrar.....
funeral director.....
cemetery

89

all four parts are required unless....

re-interment is in same cemetery

90

if done without proper authorization, disinterment will be_________________

in violation under statute and common law

91

improper disinterment is usually considered...

simple larceny

92

Some exceptions are allowed to zoning ordinances for professions such as doctors & dentists. These permits are called?

Special use permits

93

Funeral directing is considered a _____________ not a ______________.

Business...
profession

94

Funeral directing would not qualify for .....

special use permits

95

model law enacted to achieve uniformity in probate proceedings throughout the United States, not adopted by all states

uniform probate code (UPC)

96

act or process of proving a will

probate

97

court having jurisdiction over estates

probate court

98

a gift of REAL ESTATE made by will

devise

99

(sets the gift under a will) – One who inherits real estate under a will

devisee

100

a gift of PERSONAL PROPERTY under a will

bequest or legacy

101

(gets stuff by inheritance of personal property under will) – One who inherits personal property under a will.

legatee

102

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

will

103

Requirements for Will:

Legal Age /
Testamentary Capacity /
Formaility

104

“legal adult”, age 18 or older, in most states

legal age

105

Testator / Testatrix must know the intent, know the nature and extent of estate, know natural object of bounty

Testamentary Capacity

106

generous gift, given freely

bounty

107

real and/or personal property of a deceased person

estate

108

Will Formalities:

In writing....
Signed by person who makes a will
Witnessed by two or more disinterested witnesses
Usually signed in presence of each other

109

person who makes a will...

TESTATOR/TESTATRIX

110

Special kinds of Wills –

Nuncupative /
Holographic /
Soldiers & Sailors

111

an oral will, dictated by testator/trix during last illness, before appropriate witnesses, disposes of personal property, afterwards written down.

Nuncupative will

112

a type of will; hand-written by testator/trix, legal if signed by appropriate witnesses

Holographic will

113

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

114

Amendments or Revocation of Wills by

By act of Testator /
Operation of the Law /
Codicil

115

deliberately destroying a will, prior to death constitutes

revocation

116

an addition or amendment of a LAST WILL and Testament executed with the same formality as the will

Codicil

117

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.

118

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.

abatement

119

a distribution problem under the will– Extinction or withdrawal of legacy by testator’s act.

ademption

120

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.

121

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)

122

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)

123

Distribution of Property state or condition of dying without having made a will.

INTESTACY (intestate)

124

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

INTESTATE Succession

125

spouse, next of kin, if no spouse or children, grandchildren, parents, siblings, grandparents, aunts, or uncles.

DISTRIBUTION OF PROPERTY-TITLE BY DESCENT

126

Distribution of Property – forfeiture of decedent’s property to the state in absence of heirs.

ESCHEAT

127

appointment of Personal Representative, which is the person who represents and settles the estate of deceased persons

administration of an estate

128

Personal Representatives; male or female, appointed by the will to carry out provisions thereof and settle the estate.

EXECUTOR / EXECUTRIX

129

Personal Representatives; male or female appointed by the court to settle an estate, estate representation due to intestacy.

ADMINISTRATOR /ADMINISTRATRIX

130

Duties of representative

INVENTORY.
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.

131

unable to pay debts of decedent and / or the estate

insolvent estate

132

PRIORITY OF CLAIMS AGAINST AND ESTATE IN INTESTACY

Funeral Expenses (preferred claim)......
Administration expenses.......
Taxes.........
Last Illness expenses.........
all other expenses.

133

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

134

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

135

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

136

written documents that governs, withholding, and withdrawal of life – sustaining treatment, for individuals with incurable or irreversible condition that will cause death

living will