The site of a cemetery should be dedicated for cemetery purposes and a legal description of the property should be filed with the appropriate governmental entity. There should be a statutory process to ensure dedication procedures protect the interests of interment right owners.
General policy of law does not favor disinterment, absent compelling reasons. However, a cemetery authority may occasionally receive a request for interred human remains to be disinterred and reinterred within the cemetery or removed from the cemetery.
Cemetery authorities offering predeveloped interment spaces for sale to the public should provide assurances that the future development and completion of the contracted- for interment spaces will occur.
Occupational licensing by state regulatory authority is a common practice in many professional fields, which includes the licensing of funeral directors and embalmers.
When consumers consider contracting for cemetery and funeral merchandise or services, whether on a preneed or an at-need basis, important information that may influence purchasing decisions should be available. Chief among this data are truthful and accurate prices given in written form prior to a purchasing decision being made.
Each cemetery authority is confronted with the legal obligation of maintaining and protecting interment spaces and the cemetery from damage by third parties in a manner that does not unreasonably restrain the exercise of free trade. As a result, it is generally recognized that a cemetery authority has the right to publish and enforce rules and regulations governing activities within the cemetery.
Trust-funded and insurance-funded prearrangements offer different advantages to purchasers. Each purchaser should compare the features of each funding method when deciding whether to convert prepaid contract trust funds to insurance.
The dedication of a new cemetery creates a permanent addition to the community. The extent of the design and planning, financing and long-term maintenance arrangements by those who own or control a cemetery, identified herein as the “cemetery authority,” will determine whether the cemetery is ultimately an asset or detriment to the community.
The necessity to retain documentation relating to funeral and final disposition transactions will vary according to the type of facility, the nature of the transaction, and the type of information involved. For example, cemeteries open with the intent of lasting forever.
All aspects of the final disposition of human remains should be handled with dignity, observing standards of decency, and in accordance with applicable laws. Final disposition can be in the form of burial, entombment, inurnment, burial at sea, scattering, dispersion into space, shipment, or delivery of cremated remains to a designated person.
In today’s complex society, the issue of who has the right to control the final disposition of a deceased human being has become the subject of controversy. Written instruments of various types, including wills and durable powers of attorney, are being used to establish the right of an individual to control his or her final disposition, and are now indispensable tools for individuals to pre-plan for their own funeral and cemetery needs.
Sound business practices and the principles of consumer protection have mandated certain restrictions on the disposition of preneed funds prior to the performance of the prepaid contracts, without imposing unreasonable and anti-competitive restraints on the marketplace.
Funeral homes should implement a reliable system for the identification of human remains to give consumers assurance that safeguards are in place to minimize the incidence of misidentification. Further, in the case of a disinterment, or if a flood, earthquake, or other natural disaster disturbs the place of interment, the identification and reinterment of the human remains would be facilitated by this system.
In lieu of establishing a prepaid contract fund, alternative means to assure the seller’s performance can be secured by the seller through a.) a performance bond, b.) an irrevocable letter of credit, or c.) a certificate of deposit for the wholesale liability of the merchandise and services to be provided.
The specifics associated with cremation are issues of concern to the funeral service industry who performs this vital service and to the consuming public. Therefore, the consumer should have a clear understanding of what is entailed during the cremation process.
Where the merchandise purchased in advance of need is designed to withstand prolonged storage without deterioration, the seller or provider of the merchandise can furnish the purchaser with custody of these items by storing them and by providing a receipt for the merchandise that allows the purchaser to arrange delivery of the merchandise on request.
In pursuing enforcement actions, the intentional or inadvertent nature of the infraction, the extent to which it endangers the public health, safety, and welfare, and whether remedial actions have been undertaken should be considered.
The use of life insurance and annuity policies, as an alternative to other funding vehicles for prearrangements, has developed into a specialty market whereby these policies contain features which permit the death benefit of the life insurance policy to increase during the lifetime of the insured. These increases, whether indexed or discretionary, are designed to keep pace with the rising cost of providing pre-selected cemetery and funeral merchandise and services at some unknown time in the future.
Preneed sellers of funeral and cemetery merchandise and services and interment rights have the right to disseminate truthful information about these items through print and electronic advertising, direct mail, telemarketing, and other lawful forms of communication.
The nature of contracting for cemetery and funeral merchandise and services on a preneed basis is different from most other consumer transactions because it involves paying for something today which isn’t expected to be received for some period of time–perhaps decades. Therefore, it is important to have safeguards to protect the consumer’s interests.
One method to protect purchasers of prepaid contracts from financial losses while allowing sufficient proceeds to meet the seller’s expenses is through establishment of a statewide consumer guarantee fund.
A cemetery endowment care trust fund is designed to ensure that income will always be available for the continued maintenance and upkeep of the cemetery, even when all the interment spaces are sold. The cemetery authority should not be permitted to withdraw the principal of the endowment care trust fund, but receives the income earned by the principal to offset maintenance expenses.
Many older cemeteries have used their undeveloped acreage and are exhausting their inventory of unsold interment spaces. Yet large numbers of interment spaces which were sold in previous decades remain unused and apparently abandoned by the interment right owners.
No cemetery is immune from acts of vandalism and other forms of desecration. Although vandalism may be typically committed by youths as a form of hooliganism, more serious acts of desecration are committed by satanic cults who engage in ritualistic grave robbing or otherwise defile an interment space.
It is beyond question that the purchase of a funeral, together with related interment and memorialization services, merchandise and cemetery property, is an important financial transaction for consumers. The Federal Trade Commission (FTC) has estimated that a funeral is the third largest single expenditure many consumers will ever make, ranked behind purchasing a home and a car.
Zoning ordinances are developed and enforced under the local jurisdiction of cities, counties, towns, and villages. As a result, zoning requirements for cemetery usage can vary significantly from one local jurisdiction to another and courts will generally enforce such regulations unless they are clearly unreasonable, arbitrary, or capricious.
The purpose of this study is to determine adequate funding requirements applicable to trust accounts used in connection with preneed transactions by analyzing the conditions under which death care merchandise and services are sold and delivered under prepaid contracts.