The Board is pleased to announce the Province’s first online program: Continuing Education for Funeral Professionals.
Currently consisting of twelve modules, it offers a variety of topics that will provide either 3 hours or 6 hours of Professional Development Credits along with a Certificate of Completion for use as Verification by the Board and/or display.
The Program’s features include:
· Easy to use
· Self-paced online learning
· Diverse range of dynamic and thoughtfully – presented courseware
· Topics that are relevant to today’s funeral profession
· Additional modules currently under construction
“Providing funeral professionals with access to current and relevant educational tools is crucial to the continued growth of the profession.” ~ Bert Twyne, Registrar/Administrator of the NL Regulatory Board.
The purpose of this Bulletin is to remind funeral homes of their legislative requirements under the Act regarding insurance, transfer of funds from a trust account and payments from Long Term Care Facilities.
Please ensure you are following these policies.
Licence Required to Sell Insurance
Individuals in the Province cannot sell insurance unless they:
• have obtained a license from the Superintendent of Insurance; or
• are a member of a fraternal or sororal society or mutual benefit society which has an insurance fund and they are only selling the society’s insurance to other members and their families on a part time basis. This means that an individual must be a member of the society before insurance is purchased. It is not permitted to solicit the general public for insurance. Activities which require an insurance licence include:
• Soliciting a person to purchase insurance;
• Dealing with an insurance application for a person other than one for yourself;
• Dealing with the delivery or return of an insurance policy for a person other than yourself;
• Negotiating or offering to negotiate for a person other than yourself the purchase of insurance or its continuation or renewal;
• Holding out as an insurance consultant or a person who examines, appraises, reviews, or evaluates an insurance policy, plan or program.
• Making recommendations or giving advice on an insurance policy, plan or program;
• Receiving commissions, compensation or allowance for the sale of an insurance policy;
• Acting or helping in soliciting, negotiating or procuring insurance for another person.
Insurance legislation states an individual who acts, represents or holds itself out to be an insurance representative while not holding an insurance licence is guilty of an offence and be subject to the penalties outlined below.
Also, a partnership or corporation that acts as or represents or holds itself out to be an insurance agent or broker while not holding an insurance licence is guilty of an offence. In addition, every director, or officer or a person acting in a similar position in an unincorporated association and every partner in a partnership, who contributed to the unlicenced activity or failed to take reasonable care to prevent the unlicenced activity is personally guilty of an offence.
The penalty for a first conviction is a fine of up to $100,000. For a second and each subsequent conviction the penalty increases to a fine of up to $200,000.
Therefore, no funeral home operators should be providing any services regarding insurance unless they are licenced to sell insurance.
Transfer of Trust Funds
Funeral home operators are reminded that under the Prepaid Funeral Services Act, only the buyer of the prepaid funeral contract can transfer or cancel a trust account established at a financial institution. Any changes in the contract or trust funds must be authorized in writing by the buyer i.e. the funeral home cannot transfer the trust without written consent of the buyer.
A funeral home cannot transfer an amount held in trust to an insurance policy without the direct written consent of the buyer. Further, the funeral home operator should not in any way be involved in the soliciting and/or selling of insurance to individuals without a licence to sell insurance.
Amounts Received from Long Term Care Facilities
Funeral homes are reminded that any monthly payments received should be deposited into the prepaid funeral trust accounts and accounted for in the trust financial statements. These payments are monies received in advance of providing funeral services; therefore, funeral homes should be holding these funds in trust. If there is no prepaid funeral contract in place, the funeral home must still treat these monies as trust funds. Funeral homes should also be obtaining signed prepaid contracts for these monies from the family or the regional health authorities.
Further, funeral homes should not forward any payments to insurance companies. If there is an insurance policy in place, the monies should be forwarded directly to the insurance company by the family or the regional health authority.
If you have any questions please call (709) 729-7667.
John O’Brien, FCPA, FCA, CISA
Registrar, Prepaid Funerals
March 12, 2018
To: All Embalmers and Funeral Directors
Benson Bufett Law conducted a seminar for the industry relative to “Legalities in the Industry”. This was a very informative seminar and we received very positive comments. There were some questions that did not get answered at the seminar and the lawyers did some further research. The response from the the lawyer is below:
1. Do you show the family any information which discloses the cause of death? Should the funeral director be providing the cause of death to the family?
The cause of death is not disclosed on the death certificate therefore if a family member wanted to order a death certificate from Service NL, the cause of death would not be available. It appears that the only way a family member could know the cause of death was if they were informed by the medical examiner who determines the cause of death or the funeral director who is provided with the cause of death by the medical examiner. Practically speaking, it would make most sense for the family to be provided the cause of death by the medical examiner however, I have been unable to find anything that would prevent the funeral director from revealing the cause of death to the family. It would be prudent for the funeral director to provide only what was provided to them by the medical examiner and what will be recorded on the death registration.
2. Is a funeral director the only person who can give a burial permit? (i.e., person dies and buys casket at Costco and gets buried without going to a funeral director)
The Vital Statistics Act makes specific reference to a funeral director completing the death registration form and issuing a burial permit. The Act defines a “funeral director” as “a person who takes charge of a dead body for the purpose of burial, cremation, removal or other disposition”. This definition does not make reference to the individual requiring specific qualifications or licenses.
3. Can a funeral directory deny the services if casket is not purchased with them?
There does not seem to be any legal obstacles that would prevent a funeral director from denying services unless the casket was purchased through them. It would be up to the discretion of the funeral director if that is how they wanted to conduct their business. However, it is worth mentioning that in Ontario, there is a provision that specifies acts of “professional misconduct” which includes “requiring, without reasonable grounds, that a person purchase specific funeral services, funeral supplies or transfer services as a condition of obtaining funeral services, funeral supplies or transfer services” and “refusing services to any person, except where a funeral director has reasonable grounds to refuse the services and is willing to provide a reasonable alternative”
4. Do you need a burial permit for NL in the case where someone dies outside of NL and their cremains are shipped into the province? (i.e., will a burial permit from Alberta suffice?)
The Vital Statistics Act states that “where a person dies in the province, his or her death shall be registered as required by this Act”. Where the burial permit is part of the death registration process presumably, a burial permit is not required by a NL funeral director if the person died outside of the province. In the situation where a burial permit has been issued in another jurisdiction but a funeral director in NL is responsible for the burial of the remains, it would be prudent to request and obtain a copy of the burial permit from the original jurisdiction as assurance that a burial permit was completed.
5. Can you get multiple burial permits for different cemeteries?
The Vital Statistics Act defines a “burial permit” as “a permit to bury, cremate, remove or otherwise dispose of a dead body”. Presumably, only one burial permit can be issued per dead body. A review of cemetery regulations/by-laws seem to imply that a “burial permit” or “cremation certificate” needs to be provided before a burial space will be provided.
6. Who can apply for a burial permit?
I am not aware of “applying” for burial permits. According to the Vital Statistics Act, burial permits are issued by funeral directors as part of the death registration process, i.e. after they have obtained the personal particulars and medical certificate.
7. Is there property in a grave plot? (I.e., who is responsible if someone falls into an open pit…is the family liable?)
This is likely dictated by the agreement between the owners of the cemetery and the individual(s) who arrange for burial spaces. Religious cemeteries, at the very least, seem to have their own regulations/by-laws regarding burial spaces and the rules surrounding their use and maintenance. From reviewing regulations/by-laws, it appears that families and individuals pay for services provided by the cemetery, they are not purchasing the burial space itself.
With respect to liability for slip and falls within a cemetery, I reviewed Stacey v. Anglican Church of Canada (Diocesan Synod of Eastern Newfoundland and Labrador), whereby a visitor to a burial plot slipped and fell. As a result, she broke her ankle. The Church, who operated the cemetery, was not held to be liable since Stacey was 100% contributorily negligent for her injuries but the Church could have been liable if the circumstances were different.