August 2017

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Page A10 AUGUST 2017 FUNERAL HOME & CEMETERY NEWS S ec t i on A
Clear Choices
• A/V Closures
- Anus and Vaginal Closure device, stops bodily fluid and Gaseous Odors
• Multi-Closures
- Closes openings caused by: I.V. Lines, Hypodermic Incisions,
Trocar Punctures, Radial Incisions, Tracheotomies, and feeding tubes.
INNOVATIVE SUPPLY INC.
800-890-0558
Available at all Major Suppliers
By Atty. Harvey I. Lapin
Legal
Speak
Harvey I. Lapin, P.C., is a member of the Illinois Bar and Florida Bar. He
is a member of the faculty at the John Marshall Law School in Chicago
and is presently teaching the subject of Tax Exempt Organizations. He is
also associated with Florida-based law firm Sachs, Sax & Caplan, leading
the firm’s Funeral, Cemetery and Cremation Practice Group.
He has written numerous articles on the subject of taxation, funeral
and cemetery law.
The subject discussed in this article and future articles resulted from
the questions from readers. The author is licensed to practice law in
Illinois, Florida and Wisconsin. He has been involved with legal mat-
ters related to the industry in almost every state and can be reached by
phone at 847-334-1983 or by email at .
Funeral Home & Cemetery News
Contributors share insights and
exchange ideas. B
Avoiding
Cremation Litigation
Cremation litigation still is the most prevalent type of liti-
gation involving the industry. The purpose of this article is to
provide industry members with some protective measures and
guidelines to avoid this type of litigation.
The first protective measure is to be familiar with all of the re-
quirements for crematories in the state or states where your busi-
ness operates. Education is the primary tool to prevent a law vio-
lation and also for avoiding situations that could cause litigation.
The second protective measure is to continually monitor your
operations. Employees that have not been properly trained cause
most of the mistakes that lead to litigation. An owner should
constantly inspect the premises, implement improvements,
monitor employees and establish training procedures.
The third protective measure is to develop forms that protect
your business. The first line of protection in the cremation area
is a good cremation authorization form. The Cremation Associ-
ation of North America has a model form that can be used as a
guide. Other national associations and some state associations
have forms. Develop operational forms that assure your employ-
ees do not make mistakes in the cremation process.
The fourth protective measure is to establish a definite com-
plaint procedure to handle problems. See Rule 10 of the Ten
Commandments of Cremation Documentation discussed be-
low.
The fifth protective measure is to have the proper insurance
coverage. This topic has been discussed in previous columns.
Several years ago the author developed a listing of 10 rules for
documenting cremation that were designed to assist members of
the industry in avoiding problems. These rules are now referred
to as the Ten Commandments of Cremation Documentation.
You should make a copy of these rules and hang them in a suit-
able place as a reminder for your employees and you.
1.THOU SHALL HAVEAVAILABLE FOR EASY REFERENCE THE
STATE LAWS APPLICABLE TO CREMATION
Every state has laws that specifically apply to cremation. Some
have very detailed comprehensive laws. Other states may only
have limited laws primarily dealing with the disposition of cre-
mated remains or the length of time a funeral director is re-
quired to hold unclaimed cremated remains prior to making
disposition arrangements for them. You should be familiar with
the state laws that apply to your crematory, cemetery and funeral
home and have a copy of the relevant provisions readily available
for reference.
2. THOU SHALL ESTABLISH FORMS AND FIXED PROCE-
DURES FOR DOCUMENTING A CREMATION SERVICE
Samples of cremation forms have been published or distribut-
ed by the various national and some state industry trade associa-
tions. A crematory operator should confirm that these forms are
in compliance with state laws before using them. Do not borrow
other industry member’s forms without being sure the forms are in
compliance with the laws of the state in which you operate. Every
crematory should establish a definite procedure for documenting
all steps of the cremation process and that procedure should be fol-
lowed without variance in every case.
3. THOU SHALL ALWAYS FOLLOW THE ESTABLISHED PROCE-
DURES
The failure to follow the established procedures is often the reason
for losing litigation or being required to settle a case when the cre-
matory would have been protected if the procedures were followed.
Do not take shortcuts and train your personnel to perform in the
right way. The author was an expert witness in a lawsuit involving
the disposition of the remains of a stillborn child. The funeral direc-
tor defendant had not obtained any documents from the hospital
when picking up the body, did not file for a death certificate and did
not obtain a cremation permit under state law. The funeral director
responded to an inquiry as to the reason the procedures were not
followed was the services were free and therefore no requirement to
comply with proper procedures or state laws. Obviously, not charg-
ing for the service was no defense.
4.THOU SHALL HAVEAN UPTO DATE CREMATIONAUTHORIZA-
TION FORM THAT COMPLIES WITH STATE LAW AND CURRENT
INDUSTRY PRACTICES
Model Cremation Authorization Forms are available from some
of the national and some state industry trade associations. Unfor-
tunately, many industry members have not used these forms to up-
date their own forms. The Cremation Authorization Form you use
should be reviewed and revised on a regular basis. Clearly, when
there is a change in the law of your state, the form should be revised.
Some state laws contain definite requirements for the authorization
form. The failure to comply with those requirements can cause sig-
nificant problems in a dispute. The Cremation Authorization Form
is one of the best protections any crematory has for avoiding litiga-
tion.
5. THOU SHALL HAVE AN UP TO DATE CREMATION EXPLANA-
TION FORM
During the extensive litigation in California, one of the consum-
er complaints was failure to understand the cremation process. The
industry was severely criticized for not providing an easy to under-
stand explanation and making sure that the consumer read and
understood it. Some operators have indicated that it is difficult or
intrusive to explain the process to someone who is dealing with a
recent death of a loved one. While this may be true, if the proce-
dure is not followed consistently in all cases, it will be the operator
or funeral home that will bear the burden of a complaint filed later
on by that same consumer. It does not pay to take shortcuts.
6. THOU SHALL REQUIRE ALL FUNERAL DIRECTORS TO USE THE
FORMS AND HAVE THEM PROPERLY DOCUMENTED
Sometime local funeral directors will not use a proper cremation
authorization form because it appears to be too long or is too de-
tailed. If this happens to you, meet with these funeral directors you
provide cremation services for and explain the reasons it is impor-
tant to use your Cremation Authorization Form. In most cases, this
will alleviate the problem. If a funeral director still refuses to use
your Cremation Authorization Form, have that funeral director
provide you with an indemnification and hold harmless agreement
against any claim that might be filed because of his/her failure to use
your Cremation Authorization Form.
7. THOU SHALL CONFIRM OR HAVE A PROCEDURE FOR CON-
FIRMING THE IDENTIFICATION OF THE PERSON EXECUTING
THE FORM
A good Cremation Authorization Form protects a crematory and
the funeral director from anyone claiming that the cremation ser-
vice was not properly authorized. However, this protection is based
on the fact that the person signing the form is, in fact, the prop-
er person. When you are dealing with someone you do not
know, obtain some confirmation of identity. Request a form of
identification, such as a driver’s license, and make a copy of it
for the file. If you have any concerns about the identification of
the authorizing party do not proceed with the cremation.
8. THOU SHALL CONFIRM OR HAVE A PROCEDURE FOR
CONFIRMING THE IDENTIFICATION OF THE DECEASED
Mistakes do happen but cremation is not reversible. A crema-
tory must be even more careful to avoid mistakes than any oth-
er segment of the industry. Crematories must establish the pro-
cedures to avoid cremating the wrong body. These procedures
run from establishing an identification procedure to marking
and identifying the human remains and the cremated remains
throughout the total cremation process.
9. THOU SHALL TRAIN ALL EMPLOYEES AND MONITOR
THEIR ACTIVITIES
Many crematory owners attend the various national and state
association meetings to obtain the latest information and take
advantage of training programs for operators. Unfortunately,
this information is not always distributed to other staff mem-
bers. When you receive up to date information, a meeting with
all personnel should be arranged to discuss the information.
Personnel should be trained on new procedures and compliance
with changes should be monitored. This type of a training pro-
gram is important to have in place when you have to respond to
a governmental inquiry or an attorney representing someone in
a lawsuit about the methods you follow in your business.
10. THOU SHALL QUICKLY RESOLVE ALL COMPLAINTS AND
OBTAIN APPROPRIATE RELEASES, IF POSSIBLE.
It has been the author’s experience that complaints that are
not dealt with in an expeditious and fair manner are usually the
ones that end up in litigation. When a consumer complains,
deal with it. Have someone in your organization handle com-
plaints, someone who is good at dealing with people. Remem-
ber, settling the matter quickly may be less expensive in the long
run than letting a dispute fester into a lawsuit. If you are able
to settle a complaint, document that complaint and, if possible,
obtain a release from the complaining party. The author was re-
cently involved in a potential problem that could have led to
major litigation. A quick response satisfied the family and there
was no problem obtaining a release form. You should have re-
lease forms available for immediate use. However, when you re-
spond try and deal with the problem do not just offer money.
This article is for the information of subscribers and does not
constitute legal advice about this subject. All subscribers should ac-
cordingly consult with their own attorney to make sure they are in
compliance with the laws in their state.
ver and preserved it just as I have done with many
other four leaf clovers I have found in the past. I have
kept some of the ones I have found, others I have giv-
en to family members, but this one is for you to keep,
to remember your beautiful child and that special day
in April.
A four leaf clover brings luck to the one who carries it, it
brings hope for our future, faith in each other and in God
and lastly, it brings love to one another.
Tracy Franklin grew up in Germany and South Caro-
lina. He is an Eagle Scout. Frankin graduated from Sum-
merville High School in Summerville, SC, received his As-
sociate of Applied Science degree in Mortuary Science from
Arapaho Community College in Littleton, CO, and gradu-
ated from the Leadership Northern Utah Academy in 2007.
Franklin began his funeral career 1994 in Ogden, UT and
is currently the general manager of Myers Mortuary in Roy,
UT. Franklin is a member of the Ogden/Weber Chamber of
Commerce, the Utah Funeral Directors Association, the Na-
tional Funeral Directors Association and a member of the
Utah Share Support group for Infant and Stillborn loss. He
received is CFSP from the Academy of Professional Funeral
Service Practice in 2006. He is currently a resident of Roy,
UT with his wife, Patricia and their seven teenagers. He en-
joys camping, hunting, fishing, hiking, cooking and is ac-
tively involved in the Boy Scouts of America.
Hope Faith Love Luck –
Four Leaf Clovers
Your Real Source. Anywhere. Anytime.