Mortuary Law Exam 2

Question 1

obligation according to law; responsible

Answer 1

liability

Webster’s Dictionary

Question 2

condition of being actually or potentially subject to an obligation; condition of being responsible for an expense

Answer 2

liability

Blackstone’s Law Dictionary

Question 3

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

Answer 3

Contract

Question 4

Elements of a contract

Answer 4

Offer
Acceptance
Consideration

Question 5

Expression of willingness to enter into a contractual agreement. (Funeral Home)

Answer 5

Offer

Question 6

Agreement to an offer resulting in a contract. (Family)

Answer 6

Acceptance

Question 7

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

Answer 7

Consideration

Question 8

Parties to a contract

Answer 8

Offeror

Offeree

Question 9

party who initiates or makes an offer.

Answer 9

Offeror (FH) -

Question 10

person to whom an offer is made.

Answer 10

Offeree (Family accepts or rejects) -

Question 11

Types of contracts

Answer 11

Express
Implied
Quasi

Question 12

Parties express their intentions at the time of the agreement. Oral or written
Funeral contract should be in writing
Examples: At need funeral Prefunded funeral (also referred to as Pre-Financed)

Answer 12

Express contract

Question 13

Contract terms are implied by acts or conduct of the parties.
Example
First call
This type of contract becomes an express contract.

The person contracting is not necessarily the one responsible for bill
Doing so on behalf of the estate

Answer 13

Implied contract

Question 14

Fictional contract applied by a court for a person who is unable to contract for him/herself.
Raises an obligation in law where, in fact, the parties made no promises, but imposes liability on injured party
Example
Emergency medical care, death, etc.

Answer 14

Quasi contract

Question 15

Land

Anything attached to land

Answer 15

Real property

Question 16

Tangible or intangible property

Person effects		Jewelry
Furniture			Money
Automobiles		Stocks/bonds

Answer 16

Personal property

Question 17

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

Answer 17

• Testate

Question 18

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

Answer 18

• Intestate

Question 19

(NOT able to meet debits)
Liabilities exceed the assets
Estate is unable to pay debts of the decedent or the estate is unable to pay the debt/bills of the estate

Answer 19

Insolvent estate

Question 20

Amount of money available to pay funeral expenses.
Are the funeral expenses proportional to the size of the estate?
Related to “solvency”

Answer 20

Size of the estate

Question 21

(One can meet its debits)

Answer 21

Solvency of the estate

Question 22

Assets exceeds the liabilities / more cash than expenses – bills.

Answer 22

Solvent estate

Question 23

Liabilities exceed the assets, less cash than expenses – bills.

Answer 23

Insolvent Estate

Question 24

**

Answer 24

“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.”

Question 25

Courts consideration when determining reasonableness of charges:

Answer 25

Status in life

Question 26

Status in life Standard of living Religious

Answer 26

“Station in life”

Question 27

Status in life Economic Social

Answer 27

“Lifestyle”

Question 28

Reasonableness of the charges

Answer 28

``` 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 ```

Question 29

Funeral director’s knowledge

Answer 29

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

Question 30

Local and ethnic customs

Answer 30

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

Question 31

FILING OF CLAIMS Allowable cost items of a funeral Recognized by courts Includes but not limited to -

Answer 31

``` Embalming Professional services Use of facilities Casket Clothing Transportation Cemetery or cremation costs Headstone or monument Flowers Newspaper notices Outer burial container ```

Question 32

FILING OF CLAIMS Allowable cost items of a funeral Recognized by courts may be affected by

Answer 32

``` Custom Religion Fraternal requirements Legal requirements Cemetery requirements ```

Question 33

Priority of claims

Answer 33

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”

Question 34

Wrongful act committed by one person against another person. | And/or their property.

Answer 34

tort

Question 35

Torts include -

Answer 35

Invasion of rights. Obstruction of funeral arrangements. Mutilation. Wrongful withholding.

Question 36

Two duties recognized by law directly impact the funeral director.

Answer 36

1. Not to interfere with the right of burial. | 2. Exercise reasonable care in keeping the funeral home premises in a reasonably safe condition.

Question 37

Invasion of rights:

Answer 37

``` Unauthorized embalming - When is embalming required? Unauthorized photos of deceased Burial in the absence of the Next of Kin Right to privacy & confidentiality Failure to comply with wishes. ```

Question 38

ALWAYS have written permission to embalm. | From ?

Answer 38

individual with RIGHT to authorize embalming.

Question 39

Duty vs. Right

Answer 39

Duty - Obligation | Right - Privilege

Question 40

altering of an object or dead human body from its original condition. Based on definition, embalming is mutilation – due to the fact that it alters the dead human body from its original condition.

Answer 40

Mutilation

Question 41

implies receiving the body in the same condition as at the time of death. Until permission to embalm is given

Answer 41

Right of possession

Question 42

Postmortem examination of ORGANS to determine cause of death.

Answer 42

Autopsy

Question 43

Postmortem examination of TISSUES to determine cause of death.

Answer 43

Dissection

Question 44

Exceptions to UNAUTHORIZED AUTOPSY Required to determine cause of death Payment of insurance benefits, life insurance, health insurance, accidental death

Answer 44

Contractual

Question 45

do not apply to a dead human body.

Answer 45

Liens, attachments, and replevin

Question 46

A claim or charge against property for payment of some debt. - Example: IRS places this on an individual’s home for back taxes. - Cannot be used to withhold a dead body

Answer 46

lien

Question 47

An action to recover possession of personal property, - Repossession of an automobile for nonpayment - Cannot be used to withhold a dead body

Answer 47

Replevin

Question 48

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.

Answer 48

Negligence

Question 49

Doing something which a reasonable prudent person would do under ordinary circumstances.

Answer 49

omission

Question 50

Doing something which a reasonable and prudent person would not do under ordinary circumstances.

Answer 50

commission

Question 51

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

Answer 51

Negligent embalming

Question 52

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

Answer 52

Negligent funeral directing

Question 53

Types of negligent acts

Answer 53

``` Negligent embalming Negligent funeral directing Safeguarding the body Privacy and confidentiality Defective merchandise Transportation Aftercare Errors in final disposition Other negligent conduct ```

Question 54

Responsibility for wrongful acts (torts).

Answer 54

Tort Liability

Question 55

Tort Liability | Duties and obligations originate from two sources.

Answer 55

- Funeral director should not interfere with right of burial | - Exercise reasonable care in keeping funeral home and other premises in safe condition.

Question 56

Is funeral director liable or not? | Volunteer drivers

Answer 56

no

Question 57

Is funeral director liable or not? | Agent drivers

Answer 57

yes

Question 58

Is funeral director liable or not? | Livery

Answer 58

yes

Question 59

Place of business used in the care and preparation for the funeral and/or final disposition of dead human bodies.

Answer 59

Funeral establishment

Question 60

Specific premises

Answer 60

Funeral Home Church Cemetery Other facilities where funeral rites are held

Question 61

Depends on “status” of the visitor Trespasser Invitee Business visitor

Answer 61

Level of care

Question 62

Level of care Not invited Very little degree of care if necessary

Answer 62

Trespasser

Question 63

Level of care Social guests Those who attend the visitation and/or funeral service; sales representatives—very high degree or “extraordinary level of care”, entrances & exits maintained in a safe condition Entitled to a very high degree level of care.

Answer 63

Invitee

Question 64

Level of care Technically not an invitee Still require a high degree level of care

Answer 64

Business visitors

Question 65

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

Answer 65

Mental suffering

Question 66

Mental suffering is Usually accompanied by

Answer 66

physical injury or an outrageous intention or grossly negligent act.

Question 67

committed with the intention or purpose of causing harm.

Answer 67

Intentional act

Question 68

committed with complete disregard for proper conduct

Answer 68

Outrageous act

Question 69

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

Answer 69

Gross negligent act

Question 70

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.

Answer 70

Personal service contract