How do I file a complaint against the Mortuary for a 17 Day Delay in Cremating my mother?
Full Question:
My mother died recently in 2008. We had made arrangements with a Mortuary in 2001 and had paid them in full. It took them 17 days to cremate her. I have all the conversations documented regarding the treatment of my mothers remains. Should I pursue this?
03/02/2009 |
Category: Civil Actions |
State: California |
#15413
Answer:
A cremation must take place only after a proper authorization, and a death certificate and permit for disposition have been obtained. Incomplete information may cause a delay in cremation. In some cases, an autopsy may be required to be performed. Obtaining medical records and autopsies may cause delay in obtaining necessary signatures. If cremation is chosen, a written authorization must be signed before cremation can proceed. This must be done by the person(s) having the right to control the disposition of the body. This authorization, or a separate contract, indicates the location, manner, and time of disposition of the remains and includes an agreement to pay for the cremation, for disposition of the cremated remains, and for any other services desired. A burial/cremation permit (Application and Permit for Disposition of Human Remains, VS 9) must be issued by the county health department. The funeral establishment usually arranges to obtain this permit as part of its services.
CA law also requires disposers to conduct scatterings within 60 days of receipt of the remains, unless the person with the right to control disposition is notified in writing of the reason for the delay. A funeral establishment must refrigerate an unembalmed body in its possession within 24 hours if disposition by burial or cremation does not otherwise take place.
The following are CA statutes:
7111.
A cemetery authority or crematory may make an interment or
cremation of any remains upon the receipt of a written authorization
of a person representing himself or herself to be a person having
the right to control the disposition of the remains pursuant to
Section 7100.
A cemetery authority or crematory is not liable for cremating,
making an interment, or for other disposition of remains permitted by
law, pursuant to that authorization, unless it has actual notice
that the representation is untrue.
7112.
No action shall lie against any cemetery authority relating
to the cremated remains of any person which have been left in its
possession for a period of one year, unless a written contract has
been entered into with the cemetery authority for their care or
unless permanent interment has been made.
No licensed funeral director shall be liable in damages for the
lawful disposition of any cremated human remains.
7113.
A cemetery authority or licensed funeral director or a
licensed hospital or its authorized personnel may permit or assist,
and a physician may perform, an autopsy of any remains in its or his
custody if the decedent, prior to his death, authorizes an autopsy in
his will or other written instrument, or upon the receipt of a
written authorization, telegram, or a verbal authorization obtained
by telephone and recorded on tape or other recording device, from a
person representing himself to be any of the following:
(a) The surviving spouse;
(b) a surviving child or parent;
(c) a
surviving brother or sister;
(d) any other kin or person who has
acquired the right to control the disposition of the remains;
(e) a
public administrator;
(f) a coroner or any other duly authorized
public officer.
A cemetery authority or a licensed funeral director
or a licensed hospital or its authorized personnel is not liable for
permitting or assisting, and a physician is not liable for
performing, an autopsy pursuant to such authorization unless he or it
has actual notice that such representation is untrue at the time the
autopsy is performed. If such authorization is contained in a will,
the autopsy may be performed regardless of the validity of the will
in other respects or of the fact that the will may not be offered for
or admitted to probate until a later date.
This section shall not authorize the obtaining of a verbal
authorization by telephone and recorded on tape or other recording
device for an autopsy of a deceased person if it is made known to the
physician who is to perform the autopsy that the deceased was, at
the time of his death, a member of a religion, church, or
denomination which relies solely upon prayer for the healing of
disease.
103050.
(a) No person shall dispose of human remains unless both of
the following has occurred:
(1) There has been obtained and filed with a local registrar a
death certificate, as provided in Chapter 6 (commencing with Section
102775).
(2) There has been obtained from a local registrar a permit for
disposition.
(b)
(1) Notwithstanding subdivision (a), neither a death
certificate nor a permit for disposition shall be required to
transport human remains from California to an adjacent state for
disposition in that state when all of the following circumstances
exist:
(A) The remains are found within 50 miles of the California border
and the nearest licensed funeral establishment is within 20 miles of
the border in the adjacent state, and the remains are released to
that funeral establishment.
(B) The coroner with jurisdiction over the area in which the
remains were found authorizes their release pursuant to paragraph
(2).
(2) The coroner may release the remains to a licensed out-of-state
funeral establishment without a death certificate or permit for
disposition when he or she determines that all of the following
conditions exist:
(A) No forensic interest in the remains exists.
(B) A reasonable certainty exists that the cause of death will be
provided either by the primary physician, or by a review of medical
records by the coroner or medical examiner.
(3) The coroner with jurisdiction over the area in which the
remains were found who releases the remains to an out-of-state
funeral establishment shall, within 72 hours after the remains were
found, file a death certificate with the local registrar.
(c) Nothing in this section shall exempt a coroner, health
officer, health care provider, or other individual from requirements
to report a case or suspected case of any reportable communicable
diseases or conditions pursuant to any provision of the Health and
Safety Code or the California Code of Regulations.
103055.
(a) If the certificate of death is properly executed and
complete, the local registrar of births and deaths shall issue a
permit for disposition, that in all cases, shall specify any one of
the following:
(1) The name of the cemetery where the remains shall be interred.
(2) Burial at sea as provided in Section 7117.
(3) The address or description of the place where remains shall be
buried or scattered.
(4) The address of the location where the cremated remains will be
kept, as provided in Section 7054.6, under the conditions the state
registrar may approve, including, but not limited to, conditions in
keeping with public sensibilities, applicable laws, and reasonable
assurances that the disposition will be carried out in accordance
with the prescribed conditions and will not constitute a private or
public nuisance.
(b) Notwithstanding any other provisions of this part relative to
issuance of a permit for disposition, whenever the death occurred
from a disease declared by the state department to be infectious,
contagious, or communicable and dangerous to the public health, no
permit for the disposition of the body shall be issued by the local
registrar, except under those conditions as may be prescribed by the
state department and local health officers.
103060.
A permit for disposition for the purpose of removing
cremated remains from the place of cremation or interment shall
include a description of the final place of disposition sufficient to
identify the place and shall be issued by the local registrar to the
person having the right to control the disposition of the remains
under Section 7100 upon the application of that person.
A permit for disposition shall be issued under this section only
upon the signed acknowledgement by the person making application that
trespass and nuisance laws apply to the disposition and that the
permit gives no right of unrestricted access to property not owned by
the person for the purpose of disposing of the remains.
The person to whom the permit for disposition was issued shall
sign the permit, endorse upon it the date of final disposition and,
within 10 days, return the first copy of the permit so endorsed to
the local registrar of the district in which the disposition took
place. The third copy of the permit shall be returned to the office
of issuance. After one year the local registrar may destroy any
original or duplicate permit retained by him or her pursuant to this
section.
103065.
(a) Upon the presentation of a certificate of death
properly executed and completed in accordance with the policies and
procedures of the county coroner in which the death occurred that are
not in conflict with state law, the permit for disposition required
by Sections 103050, 103055, and 103060 shall be issued by any local
registrar pursuant to this section. The local registrar issuing the
permit for disposition pursuant to this section shall promptly
forward the death certificate and a duplicate of the permit for
disposition to the local registrar of the district in which death
occurred or the body was found.
(b) The applicant for a permit under this section shall pay a fee
of six dollars ($6) to the issuing registrar. Thirty percent of the
fee shall be transferred by the issuing registrar to the local
registrar of the county where the death occurred and 40 percent shall
be transferred to the State Registrar for the administration of this
section.
(c) Applicants for a permit for disposition pursuant to this
section shall not be subject to Section 103675.
103070.
The body of any person whose death occurs in this state, or
whose body is found in the state, or that is brought in from outside
the state, shall not be temporarily held pending disposition more
than eight calendar days after death, unless a permit for disposition
is issued by the local registrar of the registration district in
which the death occurred or the body was found.
103075.
Except when a permit is not required to be issued pursuant
to subdivision (b) of Section 103050, the permit shall accompany the
body to its destination, where, if within this state, it shall be
delivered to the person in charge of the place of interment.
103080.
The person in charge of the place of interment, or the
funeral director or person acting as funeral director if no person is
in charge, shall sign the permit, endorse upon it the date of
interment or cremation, and, within 10 days, return the first copy of
the permit so endorsed to the local registrar of the district in
which the interment took place. The third copy of the permit shall
be returned to the office of issuance. After one year the local
registrar may destroy any original or duplicate permit retained by
the local registrar pursuant to this section.
