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Flashcards in Mortuary Law Exam 3 Deck (103):
1

a fixed place of business used in the care and preparation for the funeral and/or disposition of dead human bodies

funeral establishment

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authorizes licensing and regulating of funeral directors and funeral establishments

police power of the state and local government

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Funeral service establishments Restrictions:

OrdinancesBuilding codesCovenants NuisanceRegulatory specifications

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Laws passed by a municipal governing body such as town or city, Zoning, building, safety, etc. Special permits Matters not already covered by federal and/or state laws.

Ordinances

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Laws passed by 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:

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Municipality zonings

ResidentialCommercial Note: in some municipalities, there may be either no zoning or a combination of residential/commercial

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**

Funeral establishments are classified as commercial use or business use of property. They are generally not allowed to operate in residential zonesSome new/change zoning ordinances may affect existing uses“Grandfather” clause- allows existing non-conforming uses to stay with restrictions

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Issued by local municipalities. Grant permission to use a building or facility for a special or specified use or purpose; such as hospitals, churches, etc.Allow exceptions to zoning ordinances for professions such as doctors and dentists

Special use permits:

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**

Funeral Directing is considered a business and not a profession. It would not qualify for Special Use Permits.

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regulations which control requirements for business and residential buildings regarding fire and safety, maintenance and operation, occupancy and use, and appearance of the building. (Designs, materials used in construction, parking spaces, plumbing, electrical, restrooms, signs, etc.)

Building codes

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

Restrictive covenants:

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An example of restrictive covenants

Deed restrictions

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Contracts dealing with the transfer to ownership. The seller agrees not to compete; for a specified time, nor in a specified geographical area; both are enforceable by law if deemed reasonable.

Covenants not to compete

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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: p.56

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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

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**

Funeral homes is not a nuisance per se

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Acts, occupations, or structures which are not nuisances per se, but may become nuisances by circumstances of the location or manner in which it is operated.

Nuisance in fact:

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**

Funeral home may become a nuisances in fact.

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Federal and state standards – OSHA, EPA, ADA Health codes

Regulatory specifications

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Regulatory specifications Federal standards rules related to embalming procedures, funeral home personnel protection and safety.

OSHA – occupational Safety & Health Act

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Regulatory specifications Federal standards Rules concerning the use and control of formaldehyde and chemicals used by embalmers.

EPA – Environmental Protection Agency

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Regulatory specifications Federal standards 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 – American with Disabilities Act

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four priorities ADA – American with Disabilities Act

1. ramps, widen doors, cut curbs, put in handicap parking2. provide public access to areas where goods and services are provided3. 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,.

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Individuals with AIDS or other such diseases shall not be refused service i.e., embalming. Nor should there be a surcharge for such service, doing so is a violation of the ADA, family can file action under ADA.

WITHHOLDING SERVICES

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by U.S. Attorney General, or private individuals, Penalties: remove the violation, first violation 50,000 or subsequent violations of $100.000

ENFORCEMENT

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Regulatory specificationsSTATE STANDARDS:

Fixed locationLicensed personnel – FDIC – 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

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Preparation 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.

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

Cemetery

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Texas Funeral Service Commission regulates cemeteries as of September 2003. However, PERPETUAL cemeteries are regulated under

the Department of Banking.

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Classifications of cemeteries

Public Private National

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type of cemetery; Accessible for burial by any member of the public.May include designated “sections”, such as Veterans, children, specific religious groups (Jewish, Roman Catholic, Protestant, etc.)

Public

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public cemetery ownership and operation

Private individual, company, corporation Local municipality: village, town, city, county

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type of cemetery; Accessible for burial only by those who are granted permission.

Private

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private cemetery ownership

Private individual, company, corporation (not-for-profit)Restrictions for religious beliefs and/or customs

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type of cemetery; Cemetery created by an act of the US CongressTypically restricted to eligible veterans of the armed forces (Army, Navy, Air force,Marines and Coast Guard)Eligible dependents (spouse, minor children) – burial is next available, spouses are stacked.

national

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determining eligibility for interment in national cemetery

Establish prior to intermentProof of serviceVeteran’s service record (VA form DD-214)Discharge certificateDischarged under conditions other than dishonorable

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Cemetery location notes

Police power (protect public health) Eminent domain - Inherent power of a government to take private property for public use. Requires just compensation to property owners Zoning ordinances – same as funeral homes, not allowed in residential areas.

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is a cemetery nuisance per se?

no

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rules and regulations of a cemetery

Enactment’s by an administrative body governing the jurisdiction of that agency Must be “reasonable” Includes state and local rules and regulations Dictate cemetery location and operation Related to police power

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cemetery discrimination

Restrictions on interment Religious beliefs and/or customs Military service Most restrictions with private rather than public cemeteries Differences in ownership and/or rules and regulations

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Rights and cemetery plots

Rights of ownership & right to interment

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cemeteryright of ownership(there are two cards for this, I felt like it is too much for one card)

Considered personal property Even though it is “real estate” used for a specific purpose License for interment Right of interment Use of an outer burial container

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cemeteryright of ownership(continued)

Not actual ownership of land Use of an outer burial container Marker or monument As allowed by the cemetery Right to have plot cared for and protected Perpetual or endowed care Right to sell the plot However, may be required to meet cemetery requirements before selling. Obtaining permission from cemetery owner

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cemeteryright to inter

Subject to cemetery rules and regulations Use of outer burial container – maybe required / flowers / plants / shrubs / etc., need permission Type of marker – FLAT OR UPRIGHTS

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Desecration of graves

Criminal offense Based on high regard, respect, and morality associated with final resting place of deceased individuals by members of society. Public sentiment dictates that cemetery is “sacred ground” and should not be disturbed. Unless there are compelling reasons to do so.Generally held viewsGenerally speaking the law looks at cemeteries as sacred groundOnce a cemetery always a cemeteryLook at disinterment UNFAVORABLY unless there is a compelling reason to do so

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This is definitely a test question

Look at disinterment UNFAVORABLY unless there is a compelling reason to do so

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

Disinterment

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disinterment is typically not permitted for three specific reasons that Mr. Layton referenced. What are they?

Respect for human desire to not have one’s remains disturbed Sentiment (feelings) of survivors Protection of public health

49

disinterment may be permitted for?

Public interest Private reasons Contractual purposes

50

what are the two principles grounds upon which disinterment may be authorized by law?

public interestprivate reasons

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disinterment public interest

One of two principle 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 cases- 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 trialProvide access to a public streetOr remains pose a threat to public health (contamination of water supply)- Reinterment will occur in a different location.

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disintermentprivate reasons

Second instance upon which disinterment may be authorized by law.- Disinterment for purpose of reinterment in another location. Due to: Dissatisfaction with place of interment Relocation of family Interment in wrong location (not a family plot) Abandoned or neglected cemeteries

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exhumation is a matter of ?

statutory regulation (in most states)Or case law

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Private disintermentFactors related to “reasonable cause” for disinterment.

- 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 principles of religious body or other institution which granted right to original disposition.

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Contractual purposesdisinterment

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

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Right of disinterment

May be governed by state statute.Applies to disinterment for public and private reasons.

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Right to control disinterment rests with who?

Rests with the state when required for evidence in a criminal trial.Rest with spouse or next-of-kin in most other cases.

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Note about disinterment against family wishes

Disinterment will not occur “against the will of other relatives except upon strong and convincing evidence that persuades a court of equity that the disinterment is required by justice.” Textbook, Section 8.2, p.49

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Necessary permits for disinterment

Disinterment permits must be obtained from proper authorities. In Texas, written order (permit) from state registrar or designee. Obtained by the funeral director. Four parts (state registrar, local registrar, funeral director, and cemetery). Unless re-interment in same cemetery.

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If done without proper authorization; Disinterment will be in violation under?

statute and common law.

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disinterment without proper authorization is usually considered

simple larceny

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

UNIFORM PROBATE CODE (UPC)

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act or process of proving a will

PROBATE

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court having jurisdiction over estates

PROBATE COURT

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a gift of REAL ESTATE made by will

Devise

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

Devisee

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a gift of PERSONAL PROPERTY under a will

Bequest or Legacy

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

Legatee

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

WILL

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Requirements for Will

Legal Age Testamentary Capacity Formality

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

Legal Age

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

Testamentary Capacity

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generous gift, given freely

bounty

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real and/or personal property of a deceased person

ESTATE

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Will Formalities

In writing, signed by the TESTATOR/TESTATRIX – person who makes a will. Witnessed by two or more eligible disinterested witnesses (varies by state), usually signed in presence of each other.

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Special kinds of Wills

Nuncupative Holographic Soldiers & Sailors

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

Nuncupative will

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

Holographic will

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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

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Amendments Revocation of Wills by

act of Testator Operation of the Law codicil

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deliberately destroying a will, prior to death constitutes

revocaton

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

Codicil

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wills in regards to marriage or remarriage

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.

84

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

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

Ademption

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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

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a distribution problem under the will– death of legatee

One who inherits personal property under will.

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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)

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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 stirpes (by the root)

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

Intestacy (Intestate)

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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

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Distribution of Property –Title by Descent

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

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

ESCHEAT

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

Administration of an ESTATE

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

EXECUTOR / EXECUTRIX

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

ADMINISTRATOR ADMINISTRATRIX

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Duties of the representative

Inventory- Listing and valuation of a decedent’s assetsDeduct security interest(s) from Real Estate Mortgage, secure loan on parcel of real estate, and personal property.Pay claims and taxes- Income taxes Death TaxesAccounting – inventory value plus income less expenses.Distribution of property

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unable to pay debts of decedent and / or the estate

Insolvent estate

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Priority of claims against and estate in intestacy

Funeral Expenses (preferred claim), Administration expenses, Taxes, Last illness expenses, and all other expenses

100

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

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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

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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

103

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

Living Will