The Funeral Law Blog

A Return to At-Home Burial: Funeral Home Start-Ups Embrace a Past Burial Tradition

For the past six or seven decades, funeral homes have been the standard location for conducting funeral rites for loved ones passed. However, this standard practice sometimes prevents the family of the deceased from being involved in the funeral preparations and ritual. Start-ups are trying to change that, mainly by re-introducing and assisting with an age-old type of funeral rites: at-home funerals.

Undertaking LA, a start-up based in Los Angeles, California, is a funeral business that primarily assists clients with at-home funeral and burial preparations. The company was founded by Amber Carvaly and Caitlin Doughty in the summer of 2015, and since then has been an important source information for persons who seek to conduct at-home funerals or burial preparations. The two women have helped answer questions ranging from how to wash and dress a body to how to fill out death certificates and transportation paperwork.

Undertaking LA is just one entity of a group that is trying to make people more aware of the option for home funerals. All but ten states allow for people to conduct their own funerals in the home (in the ten exception states, hiring a funeral director is required). According to Kateyanne Unullsi, a board member of the National Home Funeral Alliance, the positives of a home funeral is that “’[i]t’s more natural. It’s also about reducing cost, but more than anything it’s the need to be more hands-on.’”

Unlike the high standard funeral home price of a funeral (the median cost of a funeral and burial arranged by a funeral home in 2014 was $8,508), the cost of an at-home, self-conducted funeral can be $100 for less. Undertaking LA offers assistance with this do-it-yourself method, but for a small price as compared to funeral homes. For a home funeral service, which includes a three-hour visit, a service fee, and assistance with body preparations, the company charges $996. For a three-hour in-office consultation on how to prepare a body and fill out necessary paperwork, the company charges $30. For a witness cremation, where the family provides the coffin and helps initiate the cremation process at the company’s location, Undertaking LA charges $1,470. The company also provides a small selection of simple coffins for retail, if a family does not provide their own.

Undertaking LA, while unusual as compared to standard funeral homes, operates within the bounds of California funeral law. Besides not requiring persons to hire a funeral director to prepare a body for burial, California law does not require that funeral homes be outfitted with either an embalming room or a coffin display room. In addition, Ms. Carvaly and Ms. Doughty are licensed California funeral directors under the California’s Business and Professions Code, which outlines the scope of what actions a funeral director engages in. While technically funeral directors, Ms. Carvaly and Ms. Doughty merely aid persons with conducting their own independent home funerals by giving advice to families and sometimes providing hands-on assistance with body preparation services.

Undertaking LA seems to have embraced a possible future for the funeral home industry, as many become more frustrated with standard funeral and burial costs. Hopefully, more start-ups across the U.S. (such as this one in Brooklyn) will begin to embrace this cost-friendly, environmentally-friendly, and family-oriented form of funeral rites.

Nina Banfield

Cemetery Tourist: Crown Hill Cemetery In Indianapolis, Indiana

Crown Hill Cemetery was incorporated as a non-profit, non-sectarian cemetery in September 1863.  The cemetery originally included 236 acres of farmland located north of Indianapolis, Indiana.  The first interment, of Lucy Ann Seaton, took place on June 2, 1864.  In 1866, the federal government purchased a portion of the cemetery and dedicated it as a national cemetery for the interment of Union soldiers.  Additional acreage was purchased in 1869, 1886, 1887, and 1911. The cemetery currently includes 555 acres, which makes it the country's third largest cemetery. 

I grew up a mile away from Crown Hill Cemetery and it has always been at the edge of my consciousness.  It has only been in the last few years that I've taken the time to really explore the cemetery, which serves as a guide to the history of the city of Indianapolis.  My most recent visit took place on November 8, 2016. 

Crown Hill Cemetery is named, transparently, for a hill known as "The Crown."  Before Indianapolis merged with Marion County in the 1970s, The Crown was the highest point in the city.  (For those interested in Indianapolis trivia, the highest point is now in Pike Township.)  At the top of The Crown is the tomb of James Whitcomb Riley.  Riley, known as the "Hoosier Poet," was born in Greenfield, Indiana in 1849.  Although Riley is now little known outside of Indiana, he was famous in his day, primarily for his poems "Little Orphant Annie" ("An' the Gobble-uns 'at gits you Ef you Don't Watch Out!") and "The Raggedy Man."  His death in 1916 was national news.

Who gets to choose whether a body is moved?

On November 1, 2014, a West Michigan family buried their loved one, Shirley Sisco, at Pretty Prairie United Methodist Cemetery in Howe, Indiana. Sisco laid to rest for nearly years surrounded by other deceased members of her family. 

All of this changed when members of Sisco's family were informed that the cemetery had plans to dig a driveway right where Sisco was buried. Apparently, Sisco was buried in the wrong location, and the driveway construction was planned at the time of her burial.

Instead of changing the plans for the driveway, the cemetery plans to change the final resting place of Sisco, contrary to Sisco's family's wishes. The cemetery's plan is to dig trenches on either side of Sisco's vault, dig a new grave at the foot of Sisco's current grave, and pull her vault into the new grave with straps, a thought Terry Bower, Sisco's daughter, struggles with.

Who gets to make that decision?

Because Pretty Prairie Cemetery is a religious cemetery, Pretty Prairie has a lot of leeway in creating rules and regulations. According to Indiana Code 23-14-33-3, the rules and regulations of religious cemeteries trump the general cemetery law. In other words, the governing head or body of a religious cemetery is able to establish rules and regulations for that religious cemetery without regard for any other cemetery laws that govern all other cemeteries.

Under Indiana Code 23-14-33-3, if Pretty Prairie has no rules or regulations regarding the relocation of a body, the general cemetery code applies. Even under the general cemetery code, Pretty Prairie would still be able to move Sisco's body. Though Indiana Code 23-14-57-1 limits the removal of a body from a cemetery without consent of the next-of-kin or a written order, Indiana Code 23-14-57-3 provides that a cemetery is not prohibited from moving a body to "some other suitable plot in the cemetery." Additionally, Pretty Prairie cannot be held liable for burying Sisco in the wrong plot in the first place, according to Indiana Code 34-14-59-1(1).

Unfortunately for Sisco's family, there is probably nothing they can do to stop Pretty Prairie from moving Sisco's body and constructing the driveway right through her old grave.

Sarah Saint

Unlicensed Funeral Homes Mishandle Corpses

Last year police in West Philadelphia were in for an unsettling surprise when they found decomposing and improperly stored bodies in an unlicensed funeral home. Blair Hawkins, a 53-year-old funeral director from New Jersey, faces probation after being found guilty of three counts of abuse of corps for mishandling bodies in his unlicensed funeral home, Hawkins Funeral Service at 53rd and Vine streets.

According to police documents, two of the bodies were decomposing. Another body was improperly embalmed, and kept in a coffin in an unventilated room. One of the bodies was left in a body bag so decomposed that it was impossible to determine the gender, and Hawkins said he could not identify it. To make matters worse, the police also found non-medical bags filled with human organs.

The building where Hawkins Funeral Service was located, was abandoned, and without refrigeration. Philadelphia Police Lt. John Walker said, "You have a responsibility to care for the dead as you are supposed to…You shouldn't cut corners in situations like this where you're using a building that you clearly know has been out of business for some time."

Hawkins, who had an unblemished record as a funeral director since 1989, is not the first funeral director in Pennsylvania accused of mishandling corpses. Just this August police found three decomposing bodies at Powell Mortuary Services, a funeral home that was also operating without a license. Police found one body in a coffin, and two others decomposing in cardboard body boxes.

Pennsylvania statute 18 Pa.C.S.A. § 5510, states that “[e]xcept as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor of the second degree.” Moreover, according to regulations, bodies must be embalmed within 25 hours or refrigerated. In both cases, the bodies were kept without ventilation. The police reported that the bodies were authorized to be cremated.

Debora Flores Franco

Bad Samaritan or Abuse of a Corpse

In Rockcastle County, Kentucky a couple was charged with abuse of a corpse after the two of them drove around with a corpse for more three hours. The couple and a friend were doing  drugs when the friend overdosed and died. The couple then drove around with the dead body for three or four hours. The couple did not take the overdosed friend to the hospital. Police estimate that the couple drove pass three hospitable on their way home. The body was found in a minivan and witnesses told police that they saw the body being dragged. 

As a general rule individuals are not required, by law,  to help someone that is in distress. The law does not require a person that could help another person to do so. Instead state have created statutes that encourage people to intervene when they witness someone in distress. Most statutes gives tort immunity to individuals who attempt to be good Samaritans. See N.C. Gen. Stat. § 20-166 (giving tort immunity to any person that administers first aid at the scene of a motor vehicle accident); Ohio Rev. Code § 2305.23 (stating that no person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency). The Kentucky intervention law give people who report an overdose criminal immunity for their own drug use. 

KRS § 525.120 provides that  a person is guilty of abuse of a corpse when "he intentionally treats a corpse in a way that would outrage ordinary family sensibilities."  KRS § 525.120 (1). 

While this couple was not required by attempt to save the life of the friend that overdosed it is unclear  if the two of them abused the corpse considering the extremely subjective standard of "outrage family sensibility." In Smith v. Kentucky, 722 S. W. 2d. 892 (1987) the defendant was charged with the crime of abusing a corpse after having sex with the body of a woman that was recently murdered. Smith v. Kentucky, 722 S. W. 2d. 892, 895 (1987). In Smith it was clear that the defendant's action "outrage ordinary family sensibilities" but in the couples case driving from one city to the next with a dead person in the car may or may not rise to the level of abusing the corpse. 

The prosecutors may be using the abuse a corpse statute as a way to force drug users to report the overdoses that they witness. The case law does not support the law applying to drug users who out of fear do not take their friends to the hospital. Instead the law should apply to fact patterns similar to that in Smith.  The vagueness of "outrage ordinary family sensibilities" allows prosecutors to force witnesses to be "good Samaritans." 

Correll Kennedy

No Construction Permit for Mausoleums in DC, Even in Historic District

When Benjamin C. Bradlee, former editor of The Washington Post, died on October 21, 2014, he was buried in a plot in Oak Hill Cemetery. The plot was purchased by the Bradlee family ten years prior to his death because the cemetery was running out of room.  

Oak Hill Cemetery is a nearly 170 year-old rural cemetery nestled in the Georgetown neighborhood of Washington, DC. To solve the issues of decreasing availability, the cemetery has begun renovation efforts to create additional burial sites. One of these renovation projects has been to sell new mausoleum plots on one side of the cemetery's entrance Ellipse.

Shortly after Bradlee's internment, Bradlee's widow, Sally Quinn, received a letter from the cemetery advertising that new plots were available for purchase. Quinn decided to buy one of the new plots and began working with an architect to create a mausoleum that could house Bradlee, herself, their son, and their son's family.  The Bradlee family mausoleum is the first mausoleum to be built in the entrance Ellipse. Bradlee was re-interred in the mausoleum about one year after his death. 

Oak Hill's decision to sell mausoleum space in the cemetery's entrance Ellipse is being opposed by several advocacy groups, including the Cultural Landscape Foundation, interested in preserving the historical integrity of the Ellipse. Prior to the construction of Bradlee's mausoleum, the Ellipse was an oval shaped lawn area with only a few statues, a fountain, and Renwick Chapel, which is a registered historic site. The Foundation argues that placing the mausoleums there "disrupts the historic entrance ensemble, thereby diminishing the integrity of the setting of the Renwick Chapel, the gatehouse, and the Ellipse. The mausoleum also adversely impacts the scenic views once afforded from the elevated plateau into the terraced grounds below." 

In the fall of 2015, the District of Colombia Department of Consumer and Regulatory Affairs found that the mausoleum lacked the required construction permit. The District of Colombia Municipal Regulations (DCMR) Construction Codes state that a permit is required for the construction of any building or structure within the city limits of the District of Colombia. Furthermore, work that is completed in a historic district requires review of the design by several historic preservation oversight organizations. Considering that both Georgetown is a historic district requiring permits for even small construction projects normally exempted in non-historic districts and the historic status of Renwick Chapel, the city also felt the mausoleum was lacking the necessary historic oversight. 

After the city's initial determination, Oak Hill met with the city in an effort to get the city to reconsider its initial interpretation. The city reexamined the interpretation, found it had been in error, and then issued a policy statement, which "codified a longtime written understanding," of exempting mausoleums under 250 square feet from requiring a construction permit. 

However, advocacy groups felt the city was violating the procedural requirements of regulatory rule making and skirting the laws designed to protect the historic nature of Georgetown. The advocacy groups filed an appeal with the District of Colombia's Office of Administrative Hearings, and in September of this year, an administrative judge dismissed the case. The advocacy groups are now examining whether they have any other methods of recourse. Depending on what the order says, one avenue may be to appeal the final order to the District of Colombia Court of Appeals. 

In the summer of 2016, the Department of Consumer and Regulatory Affairs did propose a new rule that would add "mausoleum" to the construction code definitions and alter the District of Colombia Municipal Regulations to specifically exempt mausoleums under 250 square feet from requiring construction permits. The proposed rule was open for comments from the public for thirty days, ending on August 8, 2016. The final rule has not yet been adopted. 

Thus, as it stands right now, construction permits are not required for mausoleums in Washington, DC, even in a historic district. 

 Rebecca Daddino

Why You Should Double-Check Your Prepaid Funeral

In October 2016, Toby Polley, a former Missouri funeral home owner, was charged with five counts of felony financial exploitation of the elderly.  Polley was allegedly taking payments for “pre-arranged funeral and burial services,” but then forcing consumers and their families to pay again later for the services that had already been paid for.

A “preneed” funeral contract allows funeral consumers to pay in advance for the funeral and burial services they will require after their passing.  Many consumers choose to prepay for these services to spare their loved ones the hassle and expense of financing a funeral, which typically costs thousands of dollars.  When a consumer enters into a preneed funeral contract, the payment is deposited into a special account, which cannot be comingled with the funeral establishment or funeral director’s personal funds.  Polley allegedly failed to deposit preneed payments into special accounts and then consumers and their families were forced to pay for the same services a second time.

In Missouri, preneed funeral contracts involve several parties.  A “seller” is the one who executes the contract with a consumer.  The seller or his agent remits payment to the provider.  The “provider” is the one who provides the funeral or burial services specified in the contract.  Each of these parties must be licensed by a board to enter into preneed funeral contracts and must renew their license yearly.

In addition to criminal punishment for financial exploitation, a complaint can be filed by the licensing board against Polley to an administrative hearing commission.  If the commission finds that Polley was mishandling funds, he could be put on probation for up to five years or have his license suspended for up to three years.  If Polley’s license to enter into preneed contracts gets revoked altogether, he must wait only three years to reapply for his license to enter into more preneed contracts.  If you're going to prepay for your own funeral, it pays to double-check what's happening to your money or you might end up paying double.

Lauren Stovall

Resurrection of Competition in the Funeral Industry: Potential Online Price List Requirement

Funerals can be both emotionally and financially draining on a deceased’s loved ones. When planning a funeral, there are numerous expenses involved – including embalming, caskets, flowers, use of the funeral home, burial plots, headstones, etc. It is very common that loved ones do not shop around when purchasing these items, but rather buy from the first funeral home they are in contact with. Even if consumers attempted to compare prices of funeral homes, they likely will not be able to locate the prices of these items on a funeral home’s website.

This is because funeral homes are only required to produce prices over the phone pursuant the “The Funeral Rule,” a rule enforced by the Federal Trade Commission (“FTC”) promulgated in 1984. This rule has not been updated since the advent of the Internet, and therefore, does not require funeral homes to furnish their prices online. In fact, most funeral homes do not provide their price lists online. According to a study conducted by the Funeral Consumers Alliance (“FCA”) and Consumer Federation of America (“CFA”), only approximately 25% of funeral homes produced a price list on their website. The likely reason for this lack of publication is that the funeral industry is well-aware that consumers are unlikely to compare prices and therefore, it is most advantageous to the industry to not make price lists readily available. Multiple major news sources, such as the Washington Post and the Chicago Tribune, have picked up on this seemingly unethical practice and published suggested practices for funeral consumers. Some suggestions include: set a budge, spend wisely, and don’t be afraid to negotiate with funeral homes, if possible.

However, change is on the horizon. In this past July, the FCA and CFA produced a proposal to the FTC that would require funeral homes nationwide to publish their price lists online. This would create at least some competition within the funeral industry, explained CFA executive director, Stephen Brobeck. He noted that posting prices online typically “intensifies competition, drives down prices, and improves services.” The FTC has yet to act on this proposal, but in order to protect consumers, one can only hope that competition in the funeral industry is brought back from the dead.

Kelsey Mellan

Abandoned Ashes Piling Up in Minnesota

As the popularity of cremation has risen, Minnesota’s funeral establishments have found themselves holding thousands of abandoned cremated remains.  This problem arises most often when the family members of the deceased are grieving, unwilling to accept their loved one is gone, or uncertain what to do with the cremated remains.  While most of these remains are collected within a few months some get abandoned at the funeral home or cremation facility for decades.  One funeral home owner estimated that there are 200-600 containers of deserted ashes at his 16 funeral homes, while another has remains that have gone unclaimed for over 60 years.

Under Minnesota law the funeral home must hold any unclaimed cremated remains for 30 days after the inurnment.  If, after that time, the remains remain unclaimed the funeral home must provide written notice to the person with the right of sepulcher.  This notice must inform that person that the remains are unclaimed and must also make a request for further release directions.  If after 120 following the mailing of the written notice there is no further directions, the establishment holding the cremated remains may dispose of the cremated remains in any lawful manner deemed appropriate.  Many funeral homes across Minnesota continue to hold the remains in case someone comes for them while others place the remains in a mausoleum so they are accessible in the event someone does come to claim them. 

Other states have similar statutory schemes that permit the disposition of unclaimed cremated remains.  In Ohio, a funeral home may dispose of unclaimed cremated remains in a grave, crypt, or niche if the remains are unclaimed after 60 days and there is no final stated disposition plan for the remains.  In Illinois, the funeral establishment in possession of unclaimed cremated remains may make a final disposition of the remains if no person entitled to legal custody of the remains has made a proper request for them within one year of the date of death.  While these statutes authorize funeral establishments to dispose of the cremated remains, many do not simply because someone someday may try to claim them.  One solution offered by a University of Minnesota mortuary science instructor is that funeral directors need to address the topic during the first meeting with the family and inform them what will happen to the remains if they are unclaimed for a specific period of time.  This might alleviate the burden felt by funeral homes to hold these cremated remains for an excessive period of time.

Elliott Harry

Discovery of Decomposing Bodies in Funeral Home Leads to Arrests

Callaway, Florida. Two funeral directors were arrested this summer after Bay County Sheriffs discovered sixteen corpses in various stages of decomposition throughout Brock’s Home Town Funeral Home.   At 5 PM on August 18, officers from the BCSO entered the funeral home and immediately noticed an abundance of flies buzzing throughout the funeral home. They soon realized that six bodies were being kept in the parlor of the funeral home without any refrigeration at all, causing the bodies to decay. There were an additional ten corpses being kept in the funeral home’s “cooler” at a temperature of sixty-two degrees. State law, however, requires that corpses be stored at temperatures not warmer than forty degrees. The funeral home had promised the families of the deceased either cremation or embalming services. However, “‘none of the bodies had been embalmed,’ officers wrote. ‘Those remains whose families requested cremation had not been cremated.’”

Following this grisly discovery, Gregory Dunphy, the funeral home’s director, and Felicia Boesch, the daughter of the home’s owner, were charged with 16 counts of unlawful storage of human remains. Yet bringing charges against Dunphy and Boesch did not even begin to address the issues that now faced the families of the deceased.

Following the arrest of Dunphy and Boesch, responsibility for the bodies being held at Brock’s Home Town Funeral Home fell to local authorities. Specifically, the 14th Judicial Circuit’s Medical Examiner’s Office was tasked with the arduous undertaking of “going through the paperwork for each of the deceased to see what the families wanted for their loved ones and honor those requests.” To make matters worse, many, if not all, of these families had to pay cremation or embalming fees a second time. According to local official, “if another funeral home doesn’t step up to offer assistance, the families of the 16 deceased likely would have to pay out of pocket and then pursue relief through the civil courts.” Given the fact that Brock’s was “primarily a low-income funeral home,” these families were likely put under tremendous financial stress by this horrible turn of events.

In short, the Brock’s Home Town Funeral Home fiasco was nothing short of a nightmare for those involved and illustrates the importance of regulation of the funeral home industry so as to avoid similar catastrophes in the future.

For more information, see: http://www.newsherald.com/news/20160816/attention-turns-to-recovered-bodies; http://www.newsherald.com/news/20160818/state-aid-unlikely-for-victims-families-in-funeral-home-case; http://www.nwfdailynews.com/news/20160816/decomposing-corpses-lead-to-arrest-of-funeral-director; http://www.nwfdailynews.com/news/20160819/victims-families-in-funeral-home-case-facing-second-cremation-charge; http://www.nwfdailynews.com/news/20160817/arrangements-being-made-for-recovered-decomposing-bodies-at-funeral-home

George Kennedy