- Right of custody
- Right to control the funeral
- Right to choose disposition
- Funeral director with right to disposition
- Funeral Contract
Rights of Parties Undertaking Disposition
The party who legally undertakes to dispose of a dead body is vested with certain rights and charged with certain duties:
- The rights and duties granted and imposed by law for the protection of the decedent's survivors and for the protection of the public.
Would be empty and meaningless without a grant or certain specific rights necessary to effect disposition free from interference from others.
The paramount right to arrange the disposition of a dead body
A ___ ____ is not property in the ordinary sense of the word, but is a tangible object over which domination is granted to the party undertaking the disposition.
This right is not absolute.
- A limited right, given for a specific purpose, and subject to revocation if the party possessing it does not exercise it or utilize it for a proper purpose.
Right to Custody
The person exercising this is granted the right to take possession and control of the body. The possession may be actual or constructive.
The Right of Disposition
Where the body is physically within his custody.
Where the body is physically in the custody of another.
May be had only for the purpose of disposing of the dead body in a lawful manner.
Custody of a Dead Body
Failure to dispose of the body in a lawful manner not only takes away an individual's right of custody, but can also lead to ____ ____ against such individual.
Attaches from the moment of death and may be continued for a reasonable length of time.
Possession and control of the body
During which a body may be held pending final disposition is to be determined by the circumstances of the case.
- In the usual case, several days may suffice.
- It may be necessary to withhold disposition for a longer time and such delay is not unwarranted where the cause is justifible.
- In a case of death by contagious disease, the law may stipulate the maximum time during which the body may be held.- The rule of reason is abrogated by the statutory provisions.
Reasonableness of the Length of Time
Has the power to exercise control over all matters relating to the funeral.
- Free to choose whether to use a funeral home
- Which funeral home to use
- What type of service, if any, will be held
- What funeral merchandise will be purchased
- What the eventual method of disposition will be.
- May arrange the time and place of burial convenient to the individual and disregard the feelings of others.
- Subject only to the regulations and rules of the crematory and cemetery.
The Individual Undertaing Disposition
This is an exclusive right. If an individual has the paramount right of disposition, he or she is not compelled by law to share it with others. This being the case, the individual may elect to hold a private funeral and invite or exclude those whom he or she chooses.
Right to Arrange the Disposition
Extends even to services conducted in cemeteries.
The right to exclude others from the funeral
If the next of kin wishes to exclude others form a visitation or funeral, the funeral director is advised to impose certain conditions on the next of kin:
- If there is an obituary, it should note that the funeral services are private. No announcement of the time or place of the funeral ceremony should be made.
- Have the next of kin sign an indemnification form to cover any personal injury or property damage in the event the exclusion leads to violence.
- If a disruption by excluded family members is possible, the funeral director should require the next of kin to hire a security service to exclude uninvited individuals from services.
Certain Condtions of the Next of Kin when Excluding Individuals from a Visitation or Funeral Service
The paramount right to take custody of the body includes the right to choose the method of disposition. The person found to have the paramount right has unfettered discretion in selecting if the decedent will be buried, cremated, or disposed of by some other method.
Right to Disposition
Primarily derived from two sources:
- Those rights which are granted and imposed by statute.
- Those arising from the funeral contract
The Lawful Rights of the Funeral Director Undertaking a Funeral
- Those rights defined and provided by the statutes, ordinances and regulations of the jurisdiction where the funeral director practices.
- The laws and licensing regulations which authorize the funeral director to practice his profession.
- Empower him to take those actions which are incident to the funeral (Transporting the dead, embalming, conducting funeral services, and arranging disposition in crematories and cemeteries).
Those Rights Which are Granted and Imposed by Statute
Arises from the contract entered into between the funeral director and te individual with the paramount right of disposition.
- The funeral director has no rights in his professional capacity with respect to a dead body until such time as a valid contract is entered into between himself and another, either expressly or implicitly.
Those Arising from the Funeral Contract
An agreement between a funeral director and another competent party of legal age, whereby the consumer purchases and the funeral director agrees to furnish merchandise and services.
- May be oral or written
The Funeral Contract
It may be expressed or implied.
When an individual dies in a nursing home and the family has left instructions to call a particular funeral home, that funeral home has an implied contract with that family to carry out the removal of the body.
Example: Implied Oral Contract
The contact may be between the funeral home and the decedent's estate, his family, and/or an unrelated third party.
Other Parties that could be in the Contract
Generally responsible for the decedent's funeral bill, it is an implied party to the contract.
- Funeral directors will often have the next of kin or surviving spouse execute the funeral contract also to show that the funeral home has authority to conduct the contracted services and to provide another source of payment in the event that this is insolvent.
Funeral directors will often have the next of kin or surviving spouse execute the funeral contract also to show that the funeral home has authority to conduct the contracted services and to provide another source of payment in the event that the estate is insolvent.
May include employers, the armed forces, or government welfare agencies.
Third Parties Unrelated to the Deceased
- FTC Funeral Rule
- Truth-in-Lending Provisions
- State laws and regulations
- The price of the funeral and a list of all services and merchandise included in the funeral.
- The price of each supplemental item of service or merchandise.
- A list of the cash advances made by the funeral director on behalf of the person making the funeral arrangements
- The method of payment.
Generally, The Disclosures are as Follows:
In states with these requirements, the funeral director may not simply enter into an oral funeral contract with the other party, but is required to give a written memorandum of the transaction.
Intended to be in the best interest of the consumer, but are also beneficial to the funeral director- the written contract is legally more sound, is explicit as to method or payment, is easier to prove in the case of default by the purchaser, and is proof of a valid contract.
The insure that the contract is enforceable and is in accordance with the state law prescribing certain disclosures and proscribing certain practices, the funeral director should use a contract form that has been reviewed by ___ ___.
- Cash Transaction
- Late payment charge or penalty charge
- Collection fees
- Estate liability
- Joint and several (individual) liability
- Disclaimer or warranties
The FTC funeral rule requires this for the components of the funeral services (i.e. the goods and services purchased). Some states also have statutes or rules requiring price________ of funeral contracts. Therefore, the majority of the contract will spell out the goods and services purchased by the consumer.
Most funeral homes stipulate in the contract that the sale is a ____ ___________and not a credit transaction. Credit transactions involve many disclosures, which need not be made if the funeral home does not qualify as a creditor as defined in the Truth-in-Lending Provisions.
A funeral home may charge a ___ ______ ____ or ____ _____ for unanticipated late payment. If this charge is imposed, state law should be reviewed to determine if any ceiling to the penalty applies. An example of the penalty clause is a follows: "This is a cash transaction due in full on (due date). A penalty of __% per month (___% per annum) on the unpaid balance for the unanticipated late payment will be charged effective (date)."
Late Payment Charge or Penalty Charge
A contract may stipulate that in the event of default, the undersigned (person or persons making the funeral arrangements) agree to pay all costs of collection including reasonable attorney's fees. State laws should be consulted to insure that a collection provision is permissible.
In many states, the primary liability for payment of a funeral bill is the estate of the decedent. A funeral contract should include a statement that the person signing the contract is liable for payment of the funeral contract in addition to the liability imposed by law upon the estate. By doing this, the consumer signing the contract will be held responsible for payment in the event the state is insolvent. Also, funeral homes may charge a late payment fee as stipulated in the contract even though the estate is liable for the payment of the contract. This charge could be substantial because many times payment is held up for several months on account of the administration of the estate.
Directly above the signature line designated for the signature(s) of the person(s) making the funeral arrangements, the funeral home should include a statement similar to the one that follows: "I/we the undersigned, severally and jointy, hereby authorize the above funeral contract and promise to make payment thereof." With this statement the funeral home is holding all persons signing the contract jointly and individually liable for the payment of the funeral bill.
Joint and Several (Individual) Liability
A funeral contract may include a disclaimer of the implied warranties of merchantability and fitness for a particular purpose. These implied warranties basically mean that the casket and other goods sold will fulfill their intended uses.
Disclaimer of Warranties
To avoid liability for implied warranties, funeral directors may ______ the warranties. Prior to ____ing these arranties, funeral directors should consult state law to ensure that such a disclaimer is permissible.
- District of Columbia
- New Hampshire
- West Virginia
Not Lawful to Disclaim Warranties in these States
Funeral directors should ensure that consumers understand that the warranties are made by the ______ and not by the funeral home.