Mors 200 Arts Final - Mortuary Law Chapter 1

Consists of th rules and principals that society has established for the handling and disposition of the dead.

Provides rights and places duties upon the survivors of the decedent s that the dead can be memorialized without jeopardizing the health and safety of the overall community.

Places upon funeral directors a detailed set of duties and obligations which they owe to the survivors of the decedent, the clients they contract with, their employees, and the community where the funeral home is located.

State Laws and Regulations

Case Law

Common Law

Federal Law

The principal regulators of the funeral profession.

Empowers the state (this is an inherent authority) legislature to enact laws for the protection of the general welfare, health and safety. Included in this power is the authority to restrict individuals in the exercise of certain activities so as to promote the common good.

Set standards

Requires the licenses of individuals that wish to practice a certain profession or trade.

Every state in the country except for _____ licenses the funeral profession.

Must achieve a certain educational level

Undergo specialized training

Obtain licenses from the state

Must perform his or her duties in an ethical manner that conforms with the many governmental regulations which the state imposes.

Enact the licensing laws and other statutes that govern the funeral profession.

The legislature will delegate to an ____ ____ the task of the day-to-day regulation. Thus, most states have boards of funeral directors and embalmers that oversee the licensing statutes, investigate and inspect funeral homes, and conduct enforcement actions against those in the profession not in compliance with the laws.

Usually have a number of funeral directors as well as members of the public that represent consumer interest.

In carrying out their regulatory tasks, state boards often are given power by the legislature to _____ ____ ______. For example, the law may delegate to the state board the authority to designate what equipment a funeral home must have in order to recieve a license. As long as the regulation promulgated by the board is within the delegation of power it has recieved from the legislature, the administrative regulation will generally be upheld by the courts.

Interprets the law and applies it to the facts of the case it is deciding. Therefore, once a law is enacted, it is up to these to decide precisely what the legislature intended by enacting the law. Construes the scope and applicability of the law to the facts before it.

Occasionally called upon to decide the constitutionality of a statute or regulation.

The ultimate authority in the country.

State constitutions are the primary law of the respective states.

If a statute violates a principal of this, it is struck down as unconstitutional.

If this exceedes the authority of the regulatory body promulating it, it is declared void.

Once a particular issues is resolved by a court, a principal is established which will control future decisions by that court or lower courts. A court deciding a point gives to precedent the authority of established law.

In many states, it is this court that has the authority to settle controversies concerning dead bodies. It is the court that generally controls the disposition of the decedent’s estate and settles disputes over wills.

Consists of maxims, principals, and judicial decisions that have been passed down from hundreds of years of jurisprudence. Much of this kind of law has its roots in English and early colonial law.

Fills up gaps in our legal system

Provides most of the principals that govern our basic rights as members of society.

Example: The establishment of who is given the right to take possession fo the body upon death and direct its ultimate disposition has its roots here.

Prior to 1980, this kind of law was generated primarily by state legislature and judicial decisions by state and local courts. The sources of this law, combined with the Common Law, givern nearly all aspects of the profession.

Has emerged as a major source of regulation for the funeral director in the past 30 years.

Federal Trade Commission’s Funeral Rule

Safety requirements of the Occupational Safety and Health Administration (OSHA)

Americans with Disabilities Act

A well-intended but often imperfect method to protect consumers and employees.

Funeral directors who make a whole-hearted attempt to understand the laws and regulations and incorporate them into the funeral home business routine will often find the means to:

Undoubtedly causes some funeral directors, especially those in older buildings, to undertake expensive capital improvements.

Benefits are intangible (goodwill and trust)

Families take recognition