News and Blogs

Who Has the Legal Right to Arrange a Funeral?

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By Josh Slocum
Executive Director
Funeral Consumers Alliance

Conflicts between family members and interested parties over who has the legal right and precedence to make funeral arrangements for a person are sadly common. Here are the basics.

Designated Agents---Most states have some form of a law that allows a person to legally designate anyone she wishes to have the sole legal right to make and carry out funeral arrangements. For a list by state, see this link.

Last Updated ( Saturday, 15 March 2014 21:07 ) Read more...
 

Court reinstate's Pennsylvania's irrational, protectionist rules

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The Third Circuit Court overturned a lower-court ruling, reinstating nearly all of Pennsylvania's blatantly protectionist, anti-competitive laws restricting who can own funeral homes, what they can be called, whether they can serve food, and more. FCA filed a friend of the court brief on behalf of the plaintiffs, led by funeral director Ernie Heffner, when the case was before the district court. We agreed that many of the state laws at issue actually harmed consumers by preventing competition and innovation among funeral homes by propping up existing large, powerful funeral home operators. 

Read the ruling here.

The Institute for Justice issued the following press release. Note: We do not know what the next steps for the plaintiffs may be. 


Arlington, Va.—Today, the 3rd U.S. Circuit Court of Appeals overturned a lower court ruling that invalidated 10 of Pennsylvania’s outdated, irrational and, in most cases, blatantly anti-competitive funeral regulations as unconstitutional. The case was brought by a group of Pennsylvania funeral directors and challenged several of Pennsylvania’s funeral laws, including a requirement that every funeral home have an embalming room. The Institute for Justice filed a friend-of-the-court brief in the case, arguing the regulations are ineffective and wasteful and that it is the judiciary’s job to engage in a meaningful evaluation of whether laws serve their purposes and to strike them down as unconstitutional when they do not.

“Today’s court decision completely ignored evidence that Pennsylvania’s funeral regulations do nothing to advance the public health and did little more than rubber stamp an irrational, protectionist law,” said IJ Attorney Dan Alban, who authored IJ’s amicus brief in the Heffner v. Murphy case. “As IJ’s brief argued, proper application of the rational-basis test demands that courts engage in a genuine, meaningful review of the evidence to determine whether a law actually accomplishes its purposes, which is something that the court did not do today.”


The lawsuit brought by several smaller Pennsylvania funeral directors challenged 10 of Pennsylvania’s funeral regulations as unconstitutional and anti-competitive. Included among the challenged regulations is Pennsylvania’s requirement that all funeral homes be outfitted with an embalming room, even if the embalming room is never used—a law that is nearly identical to the embalming-room requirement that IJ successfully challenged in Minnesota.


“The 3rd Circuit’s decision essentially makes it impossible for entrepreneurs to change useless laws that exist only to protect large funeral homes from competition,” Alban said. “As the court acknowledged, funeral directors tried to get the law changed in the legislature in 2008 and failed because large funeral homes opposed it. Nonetheless, the court refused to do its job and strike down the law, stating that entrepreneurs should just try again in the legislature, even though history shows their attempts would be futile.”


“Today’s ruling shows what happens when courts fail to subject regulations to meaningful scrutiny and reinforces the need for courts to reclaim their role as the branch of government responsible for checking the legislature,” said Clark Neily, IJ senior attorney and author of “Terms of Engagement,” a book arguing in favor of judicial engagement.
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Court reinstate's Pennsylvania's irrational, protectionist rules

E-mail Print

The Third Circuit Court overturned a lower-court ruling, reinstating nearly all of Pennsylvania's blatantly protectionist, anti-competitive laws restricting who can own funeral homes, what they can be called, whether they can serve food, and more. FCA filed a friend of the court brief on behalf of the plaintiffs, led by funeral director Ernie Heffner, when the case was before the district court. We agreed that many of the state laws at issue actually harmed consumers by preventing competition and innovation among funeral homes by propping up existing large, powerful funeral home operators. 

Read the ruling here.

The Institute for Justice issued the following press release. Note: We do not know what the next steps for the plaintiffs may be. 


Arlington, Va.—Today, the 3rd U.S. Circuit Court of Appeals overturned a lower court ruling that invalidated 10 of Pennsylvania’s outdated, irrational and, in most cases, blatantly anti-competitive funeral regulations as unconstitutional. The case was brought by a group of Pennsylvania funeral directors and challenged several of Pennsylvania’s funeral laws, including a requirement that every funeral home have an embalming room. The Institute for Justice filed a friend-of-the-court brief in the case, arguing the regulations are ineffective and wasteful and that it is the judiciary’s job to engage in a meaningful evaluation of whether laws serve their purposes and to strike them down as unconstitutional when they do not.

“Today’s court decision completely ignored evidence that Pennsylvania’s funeral regulations do nothing to advance the public health and did little more than rubber stamp an irrational, protectionist law,” said IJ Attorney Dan Alban, who authored IJ’s amicus brief in the Heffner v. Murphy case. “As IJ’s brief argued, proper application of the rational-basis test demands that courts engage in a genuine, meaningful review of the evidence to determine whether a law actually accomplishes its purposes, which is something that the court did not do today.”


The lawsuit brought by several smaller Pennsylvania funeral directors challenged 10 of Pennsylvania’s funeral regulations as unconstitutional and anti-competitive. Included among the challenged regulations is Pennsylvania’s requirement that all funeral homes be outfitted with an embalming room, even if the embalming room is never used—a law that is nearly identical to the embalming-room requirement that IJ successfully challenged in Minnesota.


“The 3rd Circuit’s decision essentially makes it impossible for entrepreneurs to change useless laws that exist only to protect large funeral homes from competition,” Alban said. “As the court acknowledged, funeral directors tried to get the law changed in the legislature in 2008 and failed because large funeral homes opposed it. Nonetheless, the court refused to do its job and strike down the law, stating that entrepreneurs should just try again in the legislature, even though history shows their attempts would be futile.”


“Today’s ruling shows what happens when courts fail to subject regulations to meaningful scrutiny and reinforces the need for courts to reclaim their role as the branch of government responsible for checking the legislature,” said Clark Neily, IJ senior attorney and author of “Terms of Engagement,” a book arguing in favor of judicial engagement.
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Conference 2014

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FCA National Conference, June 5-7, 2014, Minneapolis

Events and accommodations at the Park Plaza Hotel, 4460 W 78th St Cir, Bloomington, MN 55435. (952) 831-3131.

Everyone is welcome. You do not have to be a member of Funeral Consumers Alliance to attend. If you do, we know you'll want to join!

  1. Click here for hotel reservations at special prices for FCA Conference Guests. Book early to assure a room!
  2.  Registration fee at $225 includes opening reception Thursday,  breakfast and lunch Friday and Saturday, all programs, and a field trip to Minnesota's newest natural burial ground, Prairie Oaks Memorial EcoGardens.
  3. One-day registration is available. 
  4. Register here

  5. SCHOLARSHIP application here! (Be sure to save this pdf to your computer FIRST, then fill out and save, then email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

parkplaza1parkplaza1

Speakers

We've got a fantastic line-up of consumer advocates, legislators, and young, innovative people in the funeral and burial business focused on bringing consumers real choice while maintaining affordability.  


caitlindoughtycaitlindoughty

Caitlin Doughty is easily the funniest funeral director in the country. If you haven't seen her informative-while-totally-hysterical "Ask a Mortician" Youtube seriesrun, don't walk. It's the only video series to combine death, dying, and drag queens---what more could you ask for?

Caitlin has been featured on NPR, in the Huffington Post, and more. You'll be seeing much more of her when her forthcoming book, Smoke Gets In Your Eyes, is published by W.W. Norton and company later in 2014. Join her for an irreverent breath of fresh air about the foibles of the funeral industry!  

 

Last Updated ( Monday, 16 June 2014 16:30 ) Read more...
 

FCA calls foul on FTC logic SCI/Stewart merger

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Surprisingly, the Federal Trade Commission accepted some truly bizarre funeral industry assertions when deciding which properties funeral giant Service Corporation International (brand name: "Dignity Memorial") has to sell off in order to merge with its competitor, Stewart Enterprises. Industry experts push the line that consumers don't choose cremation over burial because of price, but because of "personal" or "religious" reasons. This is plain nonsense; price is one of the top factors consumers cite when they pick cremation over burial. 

Somehow the FTC found this "logic" persuasive, and it affected how they decided which funeral businesses SCI has to divest. From the FTC's consent order:

“Funeral services do not include cremation services because consumers do not substitute cremation services for burial services based upon price, and the competitive conditions for cremation
services are substantially different than other funeral services. Since consumers primarily choose their final disposition on their personal or religious views, consumers generally do not view cremation services as a viable substitute for funeral services.”

This is remarkable. It completely contradicts the experience of consumers and consumer advocates like FCA. We have to wonder whether the Federal Trade Commission has any idea at all what choices the average American family has to make when death comes, and how tight budgets affect those. Americans do not have unlimited money to spend on funerals, and huge numbers of people have switched to cremation for its affordability as compared to casketed cemetery burial. 

FCANT President Jim Bates examines this in more detail in commentary submitted to the FTC, reproduced below.

Last Updated ( Monday, 31 March 2014 16:17 ) Read more...
 


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