- A growing acceptance by the public
- The relocation of the elderly to Florida, Arizona, and other areas in the sunbelt
- The influx of immigrants from cultures that prefer this method of disposition
- A higher level of education in the American public
- Environmental concerns
- Recessionary woes
Factors Which have led to the Increase of Cremation
Cremation is irreversible. This irreparable nature of cremation is the underlying reason why funeral directors must be extremely cautious in conducting business in this area.
Cremation Greatly Increases Potential Liability of Funeral Directors
One of the keys to protecting the funeral home from liability is to utilize a detailed one of these.
Cremation Autorization Form
To document in wiriting:
- The consent to the cremation
- The authority of the agent authorizing the cremation
- The identity of the decedent
- Information on medical devices and personal effects, and the ultimate disposition of the cremated remains.
Purpose of the Cremation Form
The genesis of the cremation authorization form used by most funeral homes.
- Has been adopted in one form or another by a majority of the states.
The Model Cremation Law Drafted by the Cremation Association of North America (CANA)- mid 1980's
Requires funeral homes and crematories to obtain detailed information from the authorizing agent in written consent form.
The Model Cremation Law
- Identification of the Decedent
- Identification of Authorizing Agent
- Authority of Authorizing Agent
- Medical Devices
- Authorization to Cremate, Process and Pulverize
- Disposition of Personal Property
- Instructions of Final Disposition
- Authority to Dispose of Unclaimed Cremains
- Recycling Metal
- Certification and Indemnification
Most Important Provisions of the Consent Form:
The funeral director lists basic information regarding the decedent including the:
- place of death
- date and time of death
- social security number
- Personally identified the decedent or has authorized his or her personal representative to identify the decedent at the funeral home.
Identification of the Decedent
By viewing the body is crucial to reducing liability in the event that there is a misidentification.
The person authorizing the cremation provides information such as:
- His or her relationship to the decedent
Identification of Authorizing Agent
The authorizing agent either represents that he or she has the paramount right to authorize the cremation or, if another person holds that right, the authorizing agent lists that person and certifies that the agent was unable to contact that person after trying to do so and has no reason to know that person would be opposed to the cremation.
Authority of Authorizing Agent
The authorizing agent will disclose whether there are any medical devices implanted in the body of the decedent and, if so, authorize their removal.
- Extremely important since some implants (lithium powered pacemakers) may explode in the retort.
It is important to provide a detailed description of the cremation process. In order for the agent to provide informed consent to the cremation process, it is necessary for the agent to have a full explanation of what takes place in the cremation process, including the pulverization of the cremated remains.
Authorization to Cremate, Process and Pulverize
To avoid liability, it is important for funeral directors to recieve information as to what is to remain on the body during cremation and what disposition is to take place of items removed from the body prior to cremation. Examples:
- Hair Pieces
Disposition of Personal Property
One of the most significant areas of liability concerns the misdelivery of cremated remains. It is vital that the funeral director recieve definitive instructions from the authorizing agent as to the ultimate disposition of the cremated remains. If they are to be shipped, the funeral director should obtain permission to ship them by a delivery service that has internal tracing capabilities and requires a written receipt from the recipient.
Instructions of Final Disposition
Authorizes the funeral director to lawfully dispose of the cremated remains if they are not claimed by the authorizing agent or his or her designee within a specified time period.
Authority to Dispose of Unclaimed Cremains
Over two-thirds of the states have a law that authorizes the disposition of unclaimed cremated remains if they are not retrieved within a certain period. (Anywhere from 60 days to one year).
It is Important to Check the Applicable State Law Prior to Disposing of any Unclaimed Cremated Remains
It is very common for surgical metal parts and implants to be removed from the retort after cremation. Many of these parts and implants contain valuable metals or ceramics which can be recycled. Funeral homes and crematories that intend to recycle metals or other marterials must always recieve written consent from the authorizing agent to retrieve the materials and recycle them. It is also important to insure that recycling is permitted by state law.
A provision by which the authorizing agent certifies the accuracy of all statements on the form. In addition, the authorizing agent should indemnify the funeral director from any liability in the event any of the information on the cremation authorization form is incorrect.
Certification and Indemnification
Many of the cremation authorization laws adopted by the states provide funeral directors with an immunity from lawsuits if they ___________ upon the information provided to them by the authorizing agent in the cremation authorization form.
Rely in Good Faith
- When a body is delivered to the crematory, a receipt form should document the transfer and possession.
- When the funeral home obtains the cremated remains from the crematory and returns the cremated remains to the authorizing agent, written receipts should be filled out and signed.
- If there is any change in the method of disposition after the cremation authorization has been signed, it should be documented.
- If the authorizing agent wishes the cremated remains shipped or scattered by the funeral home, those decisions should be documented in a form.
- Any decision to commingle cremated remains should be detailed and authorized in a written form.
Other Cremation Forms
Because many decisions in the cremation process are irreversible, _______ is an absolute necessity throughout the cremation process.
___________ that operate a crematory will be responsible for any wrongdoing or omission at the crematory.
Even for funeral homes that do not operate a crematory,_______ for crematory wrongdoing may be imputed to the funeral home.
- Because the funeral home often conracts with the crematory and because of the funeral home's overall supervisory responsibility in caring fo rthe body, some courts have allowed families to sue funeral homes for the misdeeds of independent crematories.
The funeral home should be able to demonstrate that it routinely investigates and checks the policies and procedures of the crematory and its methods of operation.
- If the crematory commits a wrongful act that harms a family that the funeral home is serving, the funeral home may be able to defend itself in a lawsuit.
To Protect Itself from Liability
- Crematory Records Request
- Interview of Crematory Management
- Crematory Inspection
Three Components of Due Dilligence Investigations of the Third Party Crematory
At least once a year, the funeral home should request and obtain from the crematory copies of:
- State crematory license or permit
- Policy and procedure manual for crematory
- Membership certificates from CANA, Better Business Bureau, or other organizations.
- List of crematory operators employed by the crematory and a copy of any operator certification
- Copies of liability insurance policies and professional liability insurance policies carried by crematory.
- Copies of cremation authorizations, releases, and recepit forms used by the crematory.
- Copies of any state inspection reports to the crematory
- Copies of the most recent maintenance/inspection reports or logs used internally by the crematory for its equipment.
Crematory Records Request
Should be recieved and reviewed to insure that the crematory is in compliance with state licensing laws and is utilizing proper procedures in carrying out cremation.
Interview the management of the crematory to obtain information on its personnel, facilities and operation. Funeral home personnel conducting the interview should take written notes of the interview. If any response from the crematory is unsatisfactory or raises concerns, the funeral home should address the issue with the crematory manager immediately.
Interview of Crematory Management
- Who owns the crematory
- What experience does the current ownership have in running the crematory
- How many employees does the crematory have
- What experience and training is required of operators
- Who conducts the training
- Information on the crematory's retort, processing and refrigeration equipment, their age and condition, and service schedule.
- Detailed explanation of all steps taken by the crematory from the time the body is recieved until the time that the cremated remains are delivered by the crematory.
Topics Covered by the Crematory Management Interview
This is the most important of the due diligence process. Conduct an unannounced inspection of the crematory during normal business hours.
- Use a checklist- note any problems observed during the inspection.
- raise concerns in writing to management of the crematory
- Make sure the problems are remedied
- Whether the crematory has posted licenses and permits
- Whether operators are dressed appropriately and conducting business in a professional manner
- Whether the facilities are neat, clean, and orderly
- Whether human remains awaiting cremation are held in a dignified and clean holding area
- The operational condition of the retort, processing and refrigeration equipment
- Whether the crematory maintains a crematory log that is up to date and up to date equipment maintenance schedule.
Checklist Utilized in Crematory Inspection