Mortuary Law - MSFS 340

What is law?

Those rules of civil conduct commanding what is right and prohibiting what is wrong

Mortuary law

Rules and principles that society has established for the handling and disposition of the dead

Common law

Non-legislated principles and rules of action predicted upon usage and custom; developed "naturally", based on human experience and the "common good"

Constitutional law

The fundamental principles of a nation, state, or body politic that determines powers/duties of gov. and guarantees certain rights to the people that constitute the organic law of the land

Legislative

Particular law enacted by legislative body (statute); related to exercise of Police Power; mortuary in licensure, health standards, business operations

Administrative law

Created by fed. and state admin. agencies to implement their powers/duties in form of rules, regulations, orders, decisions (OSHA, ADA, etc.)

Administrative agency

Appointed gov. body charged with implementing particular legislation

Case law

Court decisions that establish precedence; law based on interpretation of laws by courts and court decisions

Precedent

Legal principle; created by court decision which provides example/authority for judges deciding similar issues

Stare Decisis

Once a particular issue is resolved by court, precedent established that will control future decisions by courts; "like cases" decided in "like manner"

Contract law

Related to the contract, especially between the FH and the client family; express or implied and verbal and written

The dead human body (corpse)

The body of a human being deprived of life, but not yet entirely disintegrated

3 conditions to "legally" be a dead body

(1) Body of human being, (2) without life, (3) not entirely disintegrated (not bones/cremains)

Death

A state of complete and irreversible cessation of metabolic processes leading to dissolution of organs

Brain death

The total and irreversible cessation of brain function as indicated by a flat EEG reading

Clinical (legal) death

The absence of all vital signs

No property theory (dead human body)

Based on English law, DHB within exclusive control of the church, DHB is property of no one and there's no property in DHB

Property theory (dead human body)

Occurred as law became more secular, DHB is "property of surviving family member"

Quasi-Property theory (dead human body)

Accepted theory of legal status of DHB; rights associated with body as if it were property for purpose of disposition only

"Bundle of rights" in property of DHB

Quasi-property; right to take body for disposition purposes, to allow body parts to be used within confines of law, to exclude others from possession, to dispose of body

Necessity of disposition

Promote public health, morality, FD can be held liable for non-disposition in reasonable time

Interment (burial)

In cemetery designated for such; rural areas must be on private land dedicated as family cemetery

Entombment (mausoleum)

Above ground

Cremation

Licensed crematory; legally not disposition - scattering only in designated areas

Sea burial

3 nautical miles out with EPA notified and reason to do it

Body donation

UAGA regulated

Requirements for decent disposition

Community standards, considerations of decedent, survivors, and public; statutes

Rights of parties undertaking disposition - Duty of decent burial

Surviving spouse, next of kin, public authorities, householder (property owner)

Right to control final disposition

Individual undertaking disposition has power to exercise control over all matters relating to funeral

Right to arrange disposition

Exclusive right; not compelled to be shared (private funeral/exclude visitors)

Right

Privilege

Duty

Obligation (family, FD, government)

Right to choose disposition

Paramount right to take custody of body includes right to choose method of disposition

Primary right of final disposition

Surviving spouse (divorce/estrangement), next of kin (degree of kindred), personal rep. (probate code), decedent's guardian, volunteer (minister, friend, partner)

Waiver

Relinquish right to final disposition

Right of custody

Not absolute; limited for specific purpose and subject to revocation

Possession of body

Actual (body is physically within custody) and constructive (body is in physical custody of another)

FD with right of disposition

Derived from 2 sources; statutes (authorize practice of profession) and arising from funeral contract (no rights in pro. capacity w/ respect to dead body until contract is entered)

Handling court disputes over RoD

As FD, you hold body until dispute over disposition is handled by court, don’t try to adjudicate problem yourself

Duties of the FD

Duties stem from statutory laws of the state, requirements of the funeral contract, and common law

Statutory duties

Permits: Death certificate, burial permit, and transit permit (IL - consolidated)

Health laws/regulations: As they relate to proper handling, prep, and burial

Contractual obligations

Entering into contract and then breaching those obligations

Negligent embalming

One who undertakes to use the skill and care of reasonably prudent and careful man skilled in the art of embalming; if embalmer falls short, FD/FH held liable for damages that result

Negligent funeral directing

Failure to undertake contractual duties (failure to properly lock vault, provide purchased vault, to embalm, honor family’s requests)

Safeguard the body

Specific duty of care that exists between mortuary and family

Privacy

Breach of contract for failure of confidentiality of death/funeral arrangements; avoiding undue publicity/breaking confidentiality, excluding unwanted guests from funeral/cemetery

Defective merchandise

Implied warranties of “merchantability”/”fitness for a particular purpose”; should be properly disclaimed

Transportation

Private carrier is charged with legal duty to transport its passengers in a safe and non-negligent manner

Aftercare

Insurance similar to malpractice from counseling that may end tragically; know terminology, train employees, refer serious problems to a professional, program should be covered by FH malpractice insurance

Tort liability

A violation of duties with resulting damages; duty to not interfere with right of burial and reasonable care to keep FH/other premises in reasonably safe condition

Wrongfully withholding a body

Not burying a body until payment received; “morally reprehensible”

Loss of body

Switching bodies, interring wrong body, losing body, etc.

Mutilation of body

Right to receive body in same condition as the time of death; slight and necessary for embalming but done w/ permission

Unauthorized autopsy

Only liable if assisting with autopsy

Injury to invitees

Duty to each invitee to FH to maintain the premises in a reasonably safe condition for its intended use; high degree of care for funerals

Injury to pallbearers and clergy

Breach of duty of care owed to invitees

Physical impact

Shift from “physical injury” to physical impact to claim damages for mental anguish; even physical impact rule has eroded against FDs

Physical injury vs. Physical impact

Injury = defined medically; Impact = Night sweats, headaches, unexplained pain, etc.

Intentional infliction of mental distress

When defendant’s conduct is “intentional, wrongful, outrageous, reckless, and malicious and done with the intention of causing plaintiff severe emotional distress”

Gross negligent infliction of mental distress

Wrongful conduct can consist of merely simple negligence; often only method of compensating victims for negligent behavior; states still in minority for simple negligence

Contractual breaches

Personal nature of the funeral contract can create mental anguish; award for damages for mental distress against FD serves as useful and necessary means to maintain professional standards in funeral industry

Punitive damages

Not to compensate plaintiff, but to punish defendant; not awarded in simple negligence (causing unintentional injury), only conduct so outrageous as to justify punishment; usually not covered by liability insurance

Express contract

Explicitly saying what you want (at need, pre-financed)

Implied contract

Not coming out and saying it, implying certain things (“we want the best”)

Quasi contract

When no family is present/has wishes

Decedent’s estate - Limitations

Size of estate, status in life, reasonableness of charges, FD’s knowledge of finances, local/ethnic customs

Decedent’s estate - Filing of claims

Allowable cost items of funeral (embalming, services, casket, cemetery, etc.), may be necessary based on custom, religion, legal, cemetery; priority of claims (funeral bill paid 1st); primary obligor = estate

Decedent’s estate - Common law

May determine who has liability; spouse for spouse, parents for minor/dependent child; volunteer; public authorities (indigent/public official)

Disinterment

The removal of a dead body/remains from its place of repose after disposition has been completed; disfavored

Why disinterment is disfavored

Not a matter of right, must have a strong reason it’s necessary and that the interest of justice requires it, public abhors it out of respect for human desire to not have one’s remains disturbed, sentiments of survivors, and the protection of public health

2 main reasons to disinter

Public interest (disinter and reinter at same place, criminal/civil cases; disinter/reinter at different places for common good) and private reasons (disinter and reinter at different places; body moved closer to family, buried in wrong lot, cemetery fall to disrepair, etc.)

Court of equity

Where to make disinterment application, usually surviving spouse/next of kin

9 factors that court looks at in determining reasonable cause for disinterment (DI)

(1&2) Degree of relationship party seeking for/against DI bears to decedent, (3) decedent’s express wishes, (4&5) conduct of persons seeking for/against DI, (6) time length since original interment, (7) strength of reasons for/against DI, (8) integrity/compassion of persons seeking DI to provide secure resting place, (9) right/principles of religious body/other that granted right to inter

Unauthorized disinterment

Indictable offense under statute and common law to disinter a dead body without the proper authority regardless of purpose/motive

Funeral home

Fixed place for conducting funerals and/or for the care and preparation of the dead prior to disposition

Licensing and regulation of funeral homes

Police power of state and local govs. authorize licensing and regulation of FHs; FHs subject to inspection by gov. agencies to insure health, hygiene, and safety

Restrictions on mortuary sites

Ordinances (zoning, special use permits), building codes (parking, plumbing, electric, signs, other), and deed restrictions/restrictive covenants (type of building materials, distance from street, type of fence, etc.)

Nuisance

Invasion of landowner’s interest in reasonable use and enjoyment of land; an unreasonable/unusual/unnatural use of one’s property so that it disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property

Funeral homes and nuisance

Courts have routinely refused to declare FHs a nuisance because of depreciation of property value, inconvenience, disturb and depress neighboring homeowners

Nuisance per se

Nuisance no matter the location (crack house)

Nuisance in fact

Nuisance based on location (slaughterhouse, dump)

Zoning regulations

Residential vs. commercial/business; FHs not allowed in residential areas; FHs qualify as a business and can’t be run out of a residence; go w/ zoning ordinances but if there are none, find out what landowners in area think of your building

Regulatory specifications

Federal standards (OSHA, EPA, ADA) and state standards (health codes, fire and safety, etc.)

Probate

Court procedure by which a will is proved to be valid/invalid; next steps are collect decedent’s assets, liquidate liabilities, pay taxes, distribute property to heirs

Will

An instrument, executed with the formalities of state statutes, by which a person makes disposition of their real and personal property

Will requirements

(1) Legal age of 18, (2) testamentary capacity (intent and know the nature/extent of estate), (3) formality (in writing, signed by testator, # of witnesses varies by state)

Nuncupative will

Oral will declared/dictated by testator in their last sickness, before sufficient # of witnesses, and afterwards reduced to writing

Holographic will

Handwritten will not witnessed, but signed by testator

Soldiers and Sailors will

Oral/nuncupative will allowing the transfer of personal property of soldier during wartime/sailor at sea

Act of testator

Duty of creating new will/making amendments to old will; operation of law (divorce, marriage/re-marriage, birth of child/adoption)

Codicil

Supplement/addition to will

Abatement

Proportional reduction of a legacy (gift of personal property by will) when assets out of which such legacy are payable aren’t sufficient to pay it in full

Ademption

The extinction of an inheritance because decedent didn’t own the property at time of death

Death of legatee

Death of person who is to inherit personal/real property

Intestacy

No will made

Order of interstate succession

State law declaring the succession of assets when there’s no will

Per capita distribution

Equal share to equal dependents

Per stirpes distribution

Based on child preceding parent at death - otherwise per capita usually used

Escheat

Reversion to the state of property when there are no competent heirs