FSL Chapter 02R3 - Sources of Funeral Service Law

FUNERAL SERVICE LAW

IN THE UNITED STATES, 2nd ed.

A GUIDE FOR FUNERAL SERVICE STUDENTS

CHAPTER 2: SOURCES OF FUNERAL SERVICE LAW

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� Laws are government rules of conduct prescribing what is right and

prohibiting what is wrong. A violation of a law will carry a penalty, most often in the form of a fine and/or incarceration.

� Funeral service law is that branch of law which relates to matters concerned with the disposal of the dead and the regulation of funeral directors, embalmers, and funeral establishments.

� Sources of funeral service law include federal and state constitutions, as well as statutory and administrative laws developed by the three branches of our federal, state, and local governments – legislative, executive, and judicial.

Law

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� There are six primary sources of law in the United States:

Sources of Law

1. Federal and state constitutions

4. Case law

2. Federal and state statutory laws

5. Common law

3. Municipal ordinances and local laws

6. Administrative law

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� A constitution is the fundamental law that:

� establishes the government;

� limits what government can and cannot do; and

� states the underlying principles to which the government will conform.

� Federal - Powers in the Constitution of the United States – and those powers granted within the constitution to the three branches of the federal government – are the foundation upon which individual federal codes, laws, rules, and regulations are developed and promulgated.

#1 Federal and State Constitutions

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� The U.S. Constitution also provides checks and balances by and between

the three branches of government by ensuring each has a role to play in
writing, further defining, enforcing and, thereafter, interpreting laws.

� Laws in the U.S. Constitution are superior to all other sources in both federal and state regulations and may only be superseded by amendment to the constitution, a complex and lengthy process.

The Federal Constitution

U.S. Constitution

Legislative

Branch

Executive

Branch

Judicial
Branch

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� Similar to the federal government, individual states have their own

constitutions that provide the basis for state laws, rules, and regulations.

� Laws identified in a state constitution are superior to all other sources within the same state and may only be superseded by the Constitution of the United
States.

State Constitutions

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� A statute is defined as a law enacted by a legislative body.

� At all government levels – federal, state, county (parish), city, town, and

village – the legislative branch of the government passes legislation to create
(write) statutory law.

� For example, state legislatures may pass laws that require a funeral director

to be present and supervise the interment of human remains.

#2 Federal and State Statutory Laws

Constitution
Legislative

Branch
Legislature

Writes
Statutory

Law

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� The legislative body that writes statutory law in the United States is the U.S.

Congress, as represented by two houses:

� the United States Senate, and

� The United States House of Representatives.

� Members are elected by citizens of their home state and sent to Washington,

D.C. to represent them. They carry out duties afforded to them under the
U.S. Constitution, including writing federal statutory laws, initially known as
bills.

Federal Statutory Law

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� Bills may undergo numerous changes as the two houses of Congress

attempt to reconcile differences of opinion and strive to include provisions
that best serve their constituents needs.

� Bills passed by Congress are sent to the President of the United States (in

the executive branch) for approval or veto.

� If approved, bills become statutory law, known as a U.S. Code (USC).

� If vetoed, bills may never become law, or may become law if Congress can muster the necessary number of votes to override the veto.

� This process is part of the checks and balances inthe U.S. Constitution to

ensure no one branch of government becomes excessively powerful.

Federal Legislative Bills

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� Specific to the funeral service industry, a statutory law – written and passed by Congress – granted the Federal Trade Commission the authority to oversee government efforts to prevent unfair methods of competition.

� As will be explored in the administrative law section that follows, this legislation was the genesis from which the Funeral Rule was born.

� The FTC Funeral Rule is the single, most important federal legislation to ever affect the funeral service industry in the United States.

Federal Statutory Law in Funeral Service

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� State governments derive their authority to write laws based on the 10th

Amendment to the U.S. Constitution.

� The 10th amendment grants state governments police power – the inherent power of a government to make reasonable laws to protect the safety, health, morals, and general welfare of its citizens.

� State statutes may regulate such areas as:

� the licensing of funeral service professionals;

� defining the parameters for owning and operating a funeral business;

� setting minimum workplace standards for funeral service employees;

� establishing business practices to provide for consumer protections; and

� creating minimum standards that govern the health care community.

State Statutory Laws

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� Using police power granted to them by the U.S. Constitution, the legislatures of the 50 states write and pass statutory law in a fashion similar to the federal government, although the names of their legislative bodies and the procedures they follow vary slightly from one state to the next.

� State laws that affect funeral directing activities – such as contract law and probate law – are in addition to those existing in federal statutes, but are of equal importance to the funeral service professional.

� In 27 states, the state legislative body is called a legislature or state legislature; in 19 states, a general assembly; in Massachusetts and New
Hampshire, a general court; and, in North Dakota and Oregon, a legislative
assembly.

State Statutory Laws continued

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� Government municipalities may write laws specific to their communities through a municipal board, council, or legislature.

� Laws they pass may be known as ordinances, defined as laws passed by a local municipal governing body (e.g., zoning, building, safety, etc). They may also be known as local laws in some states.

� For example, a town government may pass a local zoning ordinance that lists

#3 Municipal Statutory Laws

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� Judicial branches of a government are tasked with interpreting statutory laws written by the legislative branch.

� Appellate courts hear appeals from cases that have already been heard in a trial (or lower) court.

� The decisions they render become case law – appellate court decisions

based on custom and usage and prior decisions.

#4 Case Law

Constitution
Judicial
Branch

Appellate

Courts

Interprets
Statutory

Law

Writes

Case Law

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� When questions of law come before a court for interpretation, the court

gathers information from a wide range of sources and applies established
legal principles to assist them in the decision-making process, including
these seven sources and principles:

1.

Written briefs (narratives and summaries) from the parties involved.

2.

Sworn testimony of relevance to the issue under consideration.

3.

Legislative records, which often contain insight on the intent and purpose of lawmakers that prompted them to write the relevant statutory law under review by the court.

Case Law Decision Making

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4.

Administrative agency records, which often contain background information on the reasoning and motive behind any rules and regulations under review.

5.

Prior rulings and decisions of a higher court on similar matters that serve as an example to resolve future similar cases (known as case precedents).

6.

Adhering to the principle ofstare decisis, which provides for a court to stand by a decision and apply it to future cases where the facts are substantially the same.

7.

Existing common law rulings, decisions, and opinions.

Case Law Decision Making continued

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� Federal courts - The federal court system has three levels:

1.

District courts (the trial courts).

2.

Courts of appeal (the first level of appeal).

3.

The Supreme Court of the United States (highest level of appeal).

� Statecourts - State court structures vary slightly but generally follow a

pattern similar to the federal court system. They have:

1.

One or more levels of trial courts, where cases originate.

2.

One or more levels of appellate courts, where trial court decisions may be appealed by the parties involved.

Court Systems

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� Unlike a statutory law, with its origin easily traced to the legislative branch of a government, common law finds its roots in the judicial branch.

� The law is derived from the court review of custom, practice, judicial rulings and decisions, and established case law.

� Because of this close affiliation with the judicial branch, it is often called judge-made law.

#5 Common Law

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� Common law may be encountered by funeral service practitioners, especially when making a determination on who has a priority right to control the final disposition of human remains.

� For example, consider a man who wants to make funeral arrangements for his deceased wife. They were together for 46 years; have four children and nine grandchildren; owned a home together; and shared all of the common attributes of a husband and wife. The only problem – they were never actually married in a civil proceeding, and the state statute provides a ‘spouse’ has the priority right to control the funeral.

� How should, could, or would this be handled if the case came before a court?

For answer see the next slide.

Common Law (An Example)

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� In similar cases, judges consistently view this from the perspective of long-standing custom and practice, which demonstrates – but for the lack of a civil wedding – the couple were in a common law marriage and equally entitled to rights and privileges bestowed on a civilly married husband and wife. The wife would be considered, for all reasonable purposes, the spouse.

� There may be no statutory law that specifically states this position, but by exercising the power and authority of the judicial branch, common law has been established by the court to support this position.

� Note: Many states have proactively addressed the issue presented in this example and have changed statutory law to provide for a ‘domestic partner’ to have the next priority right to control a disposition following a ‘spouse,’ when no spouse legally exists.

Common Law Example Answer

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� The executive branch exercises authority through administrative agencies, such as commissions, departments, divisions, bureaus, and offices

� These agencies are given rule-making power and the authority to further define and reinforce statutory laws by adopting rules and regulations and issuing opinions, orders, and decisions.

� Administrative agencies are also charged with the enforcement of administrative laws, rules, and regulations, with all of these activities coming under the heading of administrative law.

#6 Administrative Law

Constitution
Executive

Branch

Administrative

Agencies

Writes

Rules and
Regulations

Enforces
Rules and
Regulations

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� In order to ensure statutory law meets the intended purpose for which Congress passed it, federal administrative agencies routinely undertake a wide range of activities to further define and reinforce the provisions. These actions, and the written rules and regulations they develop, create the federal administrative laws they are then charged with enforcing.

� For example, the Prevention of Unfair Methods of Competition statute, written by Congress and found in USC Title 15, gave the Federal Trade Commission (an administrative agency) the power and authority to issue a rule to regulate Funeral Industry Practices.

� This rule, now known informally as the Funeral Rule, may be found in the Code of Federal Rules (CFR).

Federal Administrative Laws

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� In addition to formal rules, administrative agencies often issue guidelines, opinions, and decisions.

� For the Funeral Rule, the FTC has issued several advisory opinions on the purchase, delivery, and use of third-party caskets; caskets purchased from an entity other than the funeral establishment providing all the other goods and services for a funeral.

� These opinions are only advisory in nature but often become a part of the rule when next revised.

Federal Administrative Laws, continued

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� All 50 states have administrative agencies that create and enforce

administrative laws, rules, and regulations to reinforce state statutes.

� The title of the official compilations of state administrative laws vary state to state but are usually readily recognizable, as shown here:

� In most states, there is an office in a health department that oversees funeral services. These agencies write rules to provide for such things as licensing and registration of funeral directors, embalmers, and funeral homes.

State Administrative Laws

Regulations of Connecticut

State Agencies

Rules and Regulations
of the State of Georgia

New York Codes

Rules and Regulations

Code of Rhode Island

Rules

Code of Colorado

Regulations

Texas Administrative

Code

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� A contract is a legally enforceable agreement with four elements:

1.

An offer - a proposal to make a contract.

2.

An acceptance - an agreement to an offer resulting in a contract.

3.

Consideration - the bargained-for exchange in a contract.

4.

Contractual capacity - the legal ability to enter into a contract.

� An offer and acceptance are often called mutual assent or a ‘meeting of the minds’ between the parties.

� Mutual assent – together with the valid consideration and contractual capacity elements – meet the requirements for a legally binding agreement.

Special Interest: Contract Law

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Special Interest: Contract Law continued

� If the terms of a contract are broken (breached), an aggrieved party may file a civil claim to seek restitution and compensation for any damages or loss.

� As a business entity, funeral establishments work with contracts on a

� contracts with families to provide funeral goods and services; and

� contracts with vendors to provide funeral goods and funeral services.

� The use of contracts for specific purposes in the funeral service environment are provided in several different chapters.

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Special Interest: Probate Law

� Probate law deals with the administration and settlement of estates, and funeral directors are often called upon to consult with estate representatives to provide for the payment of funeral expenses on behalf of the estate of a deceased person.

� An in-depth discussion on probate law is provided in the chapter titled, Estate Administration

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THE END

Author: Larry J Cleveland

Publisher: Hudson Valley Professional Services

PPT Release: #3 June 2022
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FUNERAL SERVICE LAW

IN THE UNITED STATES, 2nd ed.

A GUIDE FOR FUNERAL SERVICE STUDENTS