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Establishing a Standard of Care
Have you ever noticed the number of documents that must be reviewed and completed by a funeral director before cremation and final disposition can take place? In addition to the standard " Funeral Service Contact", the immediate next-of-kin, executor or legal representative must sign an "Authorization to Cremate" document and "Instructions for Disposition" form. If viewing and visitation precede cremation, a "Clothing, Jewelry and Personal Effects" form is completed. Finally, if the family wishes to look after its own disposition, a "Release of Cremated Remains" form must also be signed.
Cremation is an irreversible process. If a mistake is made, there is nothing that can be done to correct it. Therefore, funeral directors must be extremely careful when cremation is requested.
The use of documents, such as those noted above, serve as a check-list for the director to ensure all issues relating to the cremation and disposition of the deceased are reviewed with the authorizing representative and that the authorizing representative is fully informed. It also creates a record of the family's final wishes and instructions for which the funeral director is accountable. But most importantly, the documents help to reduce the risks associated with cremation and establish a standard of care.
What can go wrong?
There are a number of areas where mistakes can and have been made. The following is a list of some of the most serious problems that can occur.
Cremating the wrong person
Cremating without proper authorization
Cremating without informed consent
Cremating jewelry and personal effects
Cremating medical devices
Commingling cremated remains
Failure to return all the cremated remains
Misidentifying the cremated remains
Misdelivery of cremated remains
Wrongful disposal of unclaimed cremated remains
Cremating the wrong person
There have been many reported cases in North America where the wrong person has been cremated. Mistakes have originated in hospitals where the wrong body is released to the funeral director or mix-ups occurring in funeral homes, particularly in larger establishments that are handling multiple deaths on a daily basis.
Regardless of how it happens, the standard of care in many funeral homes is to have the body positively identified by a family member or authorized party familiar with the deceased prior to cremation. If identification is not suggested by the funeral director, there is nothing stopping the family from requesting it.
Proper authorization
In Canada and most U.S. states you are not permitted to authorize your own cremation. The legal right to do so rests with your next-of-kin, or if you have completed a Will, your Executor or legal representative.
Although this appears to be straightforward, complications can arise. When someone signs the cremation authorization form, the funeral director must verify the person's identity and his or her authority to authorize the cremation.
Generally, when funeral directors are dealing with someone they do not know, they will obtain confirmation of identity, such as, driver's license or passport. If a person indicates he or she is the executor, the director may also request a copy of the first and last pages of the deceased's Last Will and Testament. This will verify the name of the executor and that the Will has been duly executed.
As previously noted, without an up-to-date Will the immediate next-of-kin will assume responsibility. Legally the next-of-kin who qualify are listed according to priority. The first level is the spouse, followed by an adult child or children of the deceased, then parents, siblings, etc. When authorization rests with the deceased's adult children, conflict can occur if one or more of them do not agree with the wishes of the other siblings.
Legally, regardless of who is the oldest, each adult child has equal status. When dealing with multiple members of the same class, the funeral director must get permission from all members of that class. In the case of the adult children, this would require their signatures on the authorization form or a faxed copy. If a signature cannot be obtained, a verbal authorization is acceptable.
Cremation performed without proper authorization or on the basis of misrepresentations made by the authorizing party may result in serious legal problems for the crematory.
Informed consent
A funeral home and crematory's responsibility does not end with the signing of the cremation authorization form. It is just as important for the authorizing party to understand exactly what is going to take place in the cremation process. The director should review the contents of the authorization form in detail, explain the step-by-step procedures and point out what the family should expect to receive at the end of the process. Simply getting a signature does not release the crematory from its responsibility of ensuring the authorizing party is fully informed.
Personal possessions
Due to the nature of the cremation process, any personal possessions or valuables, such as, jewelry or other memorablilia will be destroyed or, if not destroyed, disposed of by the crematory in a non-recoverable manner.
To avoid any miscommunication, directors will usually get explicit written instructions from the authorizing party pertaining to what articles should be removed from the deceased, where they should go or to whom they should be returned.
Those families who would like certain personal possessions to remain with the deceased are encouraged to place them directly in the urn with the cremated remains.
Medical devices
Heart pacemakers, or other mechanical, prosthetic or radioactive devices can explode during cremation causing significant damage to the crematorium and injury to staff. To prevent this from happening, the funeral director will determine if the deceased had any of these surgical implants and get permission from the authorizing party to remove them. Pacemakers may be reused and are usually returned to the hospital by the funeral director.
Commingling cremated remains
Commingling is defined as the mixing together of two or more cremated remains. When a body is cremated the residue left behind includes the ashes of the receptacle in which the body is cremated and the deceased's bone fragments. Both the ashes and the bone fragments are removed from the concrete floor of the retort with a rake that has stiff metal bristles. The materials are raked into a metal pan and the bone fragments are then removed by hand and placed in a mechanical processor for further reduction in size. The ashes and any other foreign residue are then disposed of by the crematory.
Due to the extreme heat generated during the cremation process, the concrete floor and ceiling of the retort, along with the refractory brick forming the sides of the chamber are susceptible to cracking. Because of these cracks it is impossible for the crematory to remove all of the cremated remains as minute particles become trapped between the cracks.
To avoid any misunderstanding, family members should be made aware that they will not receive 100 per cent of the cremated remains of their loved one since some will be unrecoverable.
After each cremation crematory personnel clean out the retort by thoroughly vacuuming the floor and sides of the chamber. By doing so this ensures that the cremated remains of different individuals are not commingled. Therefore, it is equally important that the family also understands the efforts made by the crematory to prevent commingling.
A more serious form of commingling occurs when more than one body is cremated at the same time. Unless specifically sanctioned by a regulatory agency, this practice is strictly prohibited. If undertaken it could result in disciplinary action including fines and loss of license by the regulator and/or legal action against the funeral home/crematory by the families of the families of the decedents.
Failure to return all of the cremated remains
The amount of cremated remains returned to a family will depend on the skeletal stature of the deceased. As a rule of thumb, the larger the skeletal stature, the greater the quantity of cremated remains generated.
It is therefore, important for funeral homes to have a wide variety of urns with varying capacities from which to choose. Regrettably, there are occasions when the urn selected cannot hold all of the deceased's cremated remains. Rather than disposing of the surplus, the additional cremated remains should be placed in a second urn. A plastic utility urn is usually used for this purpose and is provided at no charge. A detailed explanation of why a second urn is required should also be provided to the family.
Failure to return all the cremated remains is very unsettling for a family and has been the source of complaints filed with regulatory authorities and lawsuits.
Misidentification
In addition to confirming the identity of the deceased prior to cremation, it is equally important to establish an identification procedure throughout the cremation process. If a body is to be delivered to a crematory, the standard procedure is to attach a durable, non-corroding identification tag to the wrist or ankle. At the crematory the I.D. tag is removed and when the cremated remains is recovered, the tag is put inside the urn or container that holds the cremated remains.
Funeral homes performing their own cremations use a similar procedure. In this case a metal disk that has been stamped with an identification number and the name of the deceased is recorded in a permanent register. Again, when the cremated remains are recovered, the metal disk is place in the urn or container.
Identification information is also placed on the outside of the urn or container. Brass nameplates engraved with the name and age of the deceased is usually attached to the urn or the urn itself is personalized with laser etchings, the deceased's name, etc. Cardboard and plastic urns, which are used for transportation and then discarded, also have ID labels attached to the bottom of the container.
Misdelivery
The importance of having explicit written instructions when cremation is involved cannot be overstated. In order to determine what should happen to the cremated remains, many funeral directors record the authorizing representative's wishes on an "Instructions For Disposition" form. The form identifies where and when the cremated remains are to interred; if scattering is to take place, to whom they should be released or if they are to be shipped, to whom, and how they should be sent.
Should something go wrong and the cremated remains are lost by the carrier or recipient, the funeral home and/or crematory will be held harmless from any liability if the instructions were followed as documented.
Wrongful disposal
One of the biggest problems funeral homes face is what to do with unclaimed cremated remains. For more information about unclaimed remains, please click here. Throughout the U.S. and Canada there is a backlog of cremated remains, some dating back over 20 years that have simply been left in the funeral home and never picked up.
Although many funeral homes stipulate on their documentation that they will be authorized to permanently dispose of unclaimed cremated remains in common ground if they are not advised within a prescribed time frame (usually 60 days) as to their permanent safekeeping or memorialization, they are reluctant to do so rather than face possible litigation for wrongful disposition. Many jurisdictions have begun to address this matter and are now allowing funeral homes to properly dispose of the cremated remains after a defined time period. Others are authorizing the release of the cremated remains to a neutral party, such as a coroner or medical examiner for disposition.
General
The above information has highlighted a number of things that can go wrong when cremation takes place. Whether it is the identification of the deceased or the cremated remains, the procurement of personal possessions or the final disposition of unclaimed remains, it is incumbent upon the authorizing representative to understand the process and its various components and the funeral director to fully inform those involved and establish a standard of care that is comforting and reassuring for the family.
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