On appeal, the Court of Appeal overturned the trial judgment and decided that the defendant/funeral home`s obligation should be decided on the basis of an examination of the foreseeability of harm to close relatives and friends of a deceased person. The Court of Appeal also found that the plaintiff is a close relative of the deceased and is entitled to damages. If the officer entitled to control the disposition of the remains and make funeral arrangements – or, failing that, the next of kin living of the deceased – does not act or delegate his authority within seven (7) days of the date of death of the deceased, then the right to control the disposition of the mortal remains and to organize funeral services abandoned and transmitted to the person of the next. Degree of kinship.  However, if the person entitled to control the disposition of remains and funeral services is the surviving spouse, he or she has ten (10) days after the death to act before the control passes to the person of the next degree of kinship.  The right to possess a dead human body for burial is normally conferred on the spouse or other family members of the deceased. Sherman v. Sherman, 330 N.J. Super. 638 (Ch.Div. 1999). However, there is no unlimited ownership of a corpse.
The issue of eliminating the dead is so much in the public interest, including the health, safety and welfare of the public, that it is subject to the control of the law rather than being entirely subject to the desires, whims or whims of the individual. Wolf v. Rose Hill Cemetery Ass`n, 832 p.2d 1007 (Colo. ct. App. 1991). The deceased`s preference regarding the disposition of his body is a right that is generally strictly enforced. Some States grant this right, considering that the wishes of a deceased person take precedence. The time following the loss of a loved one can be tricky for everyone involved; This can be made even more difficult by family disagreements over the proper disposition of remains. The following sections discuss the custody of deceased remains in California and possible steps that can be taken to ensure that their remains are disposed of as they wish. In Quesada v. Oak Hill Improvement Co., 213 Cal.
App.3d 596 (Cal. App. 5th Dist. 1989), the plaintiff, sister of the deceased, brought an action for damages against the defendant/funeral home. The charge against the defendant/funeral home was that the defendant/funeral director had abused the body and caused emotional distress to the plaintiff. The accused/undertaker delivered the body of another person for burial. Despite protests from the relatives of the deceased, the body was cremated on the plaintiff`s property. However, the trial court ruled in favour of the defendant funeral home because there was no contractual relationship between the plaintiff and the defendant/funeral home. The defendant/funeral director therefore had no obligation to the plaintiff.
When a loved one dies, the emotionally charged question is likely to arise as to how to handle the disposition of their remains. Who has the rights to a corpse in California? What laws apply to the custody of the remains of deceased persons? Who decides on the disposal of leftovers? What are the possibilities for the final disposition of the body to death? How long before the funeral after death? When can cremation take place after death? If you have any questions or concerns about your loved one`s final decision upon death, Keystone`s estate attorneys are ready to answer you. Whether you have been appointed as a substitute decision-maker to oversee the disposal of mortal remains and need assistance in carrying out your duties, or you are a family member of the deceased who wants to ensure that the health worker fulfills his or her responsibilities related to the timely disposal of the body after death, Keystone can help. Call us today to schedule your free consultation. If the party concerned gives consent to perform an informal autopsy, there is no liability for a pathologist, even if such an autopsy results in the removal and destruction of certain organs or the non-return of organs to their original place in the body. Lashbrook v. Barnes, 437 p.W.2d 502 (Ky. 1969).
However, liability may be incurred if the person conducting the autopsy exceeds his or her authority by causing negligent or unnecessary mutilation of the body during the autopsy. In cases where there is no surviving relative by blood and no one has been designated by the deceased to make funeral arrangements, the VA Act states: “Any person over the age of 18 who is able to positively identify the deceased and is willing to bear the costs associated with disposing of the mortal remains of the deceased, has the right to make arrangements for the disposal of the remains of the deceased. Next of kin of the deceased can sue the morgue for inflicting unauthorized emotional distress. Contreraz v. Michelotti-Sawyers & Nordquist Morgue, 271 Mont. 300 (Mont. 1995). See our article on offences. In the absence of a normal parent-child relationship at the time of death, a child of full age cannot claim a priority right as next of kin to determine the mode and place of burial of his or her parents.
New application pursuant to section 4200 of the Health Law, 196 Misc. 2d 599 (N.Y. Sup. Ct. 2003). In some situations, such as an accident or disaster in which the next of kin was also injured, the person entitled to control the order may be temporarily unable to make arrangements. In these cases, the degree of incapacity for work must be determined, usually by the doctor supervising the care of the next of kin. Emotions can become strong at the time of the death of a loved one, and as one client commented, you have to make tough decisions that often involve tens of thousands of dollars at a time when you can barely think. The same client had somehow accepted a funeral with a casket that cost thirty thousand dollars. To the funeral home`s credit, they relented when our protest was made, but something we should all consider is how it would help our loved ones not only get clear instructions on how to conduct the funeral and funeral, but also indicate who has what rights to handle the details.
Although the common law does not consider corpses to be property, the courts have treated them in a quasi-property context over the centuries. The right to the remains of deceased relatives for the purpose of proper burial has long been recognized as a legal right. The next of kin surviving shall have the right to immediately take possession of the body of a deceased person for preservation and burial purposes, and damages shall be awarded to any person who unlawfully infringes this right or improperly manipulates the body of the deceased. This right, known as the common law right to burial, continues to be recognized by the courts despite the passage of several hundred years. Correa v. Maimonides Medical Ctr., 165 Misc. 2d 614 (N.Y. Sup. ct. 1995). It should be noted that an unofficial autopsy cannot be performed if a surviving relative or friend of the deceased objects that such a procedure contradicts the religious beliefs of the deceased. Lieberman v.
Riverside Mem. Chapel, 225 A.D.2D 283 (N.Y. App. Div. 1st Dep`t 1996). Similarly, a claim for damages for performing an unauthorized autopsy seeks to compensate family members for the emotional and psychological suffering caused by an inappropriate autopsy. Note: The executor/administrator is expected to follow the wishes of the deceased but is not legally obliged to do so. As in other areas of life, legal rights and powers become important when there is disagreement about what should happen. In this section, we explain who has the legal decision-making authority in these cases. The rights and duties applicable to human remains are an issue of vital importance to a family facing death, but one that is rarely discussed or examined. This article sets out responsibilities and rights with respect to human remains. If the deceased did not leave a will, or if the will is invalid or has not appointed an executor, this decision-making power usually rests with the next family member as the person with the best legal right of access to the deceased`s property.
If there is no will or executor, the deceased`s property is managed by a relative designated by the courts as the “administrator” of the estate (see below “Treatment of the deceased`s property: wills, inheritances and small estates”). There is a legal order of priority in determining who the courts will appoint for this purpose: at the top of the list is the spouse or partner, followed by children, then parents, sisters/brothers and aunts/uncles. However, it is not necessary to have already been appointed administrator to exercise decision-making power over the body of the deceased – what matters is that you are the one who has priority. To the extent that the holder of this power (whether through a mandate relationship with the deceased or as a living relative) does not act in time to control the disposition of mortal remains, the person with the next degree of kinship may file an application requesting the probate court to release the remains of the deceased under his control. If there are two persons with equal rights to control the disposal of the remains (for example, two adult children of a deceased person who died without a specific health worker or spouse) and these two persons cannot agree on the final decision at death, then the funeral home or cemetery authority in possession of the remains, file their own application for a court order ordering the proper disposal of these remains.