|Question #1||When death is a result of a Motor Vehicle Accident (MVA), what are my rights?|
|Answer:||After a tragic motor vehicle accident in which a loved one is lost many survivors are unable to cope with the thought of pursing legal rights. However, the surviving spouse on behalf of the children should contact legal counsel to at least discuss the options available when death is a result of a negligent act. By contacting a lawyer the survivor will at least then be in a position of making an informed decision about whether to pursue an insurance claim or not. |
In a motor vehicle accident the deceased’s family basically has two policies of insurance to access to assist with expenses. One policy is from the motor vehicle in which the deceased was in and another policy of insurance is from the motor vehicle of the person who may be at fault for the accident. The policy of insurance from the motor vehicle that the deceased was in has what are called Section B Benefits or ‘No-fault Benefits” which include $5,000.00 for funeral service expenses, plus $400.00 for grief counselling per family, plus a lump sum “Death Benefit” amount that varies based upon the age and status in the household of the deceased at the date of the accident (for a surviving spouse with two children it would be $37,000.00 payable almost immediately). These amount are payable to surviving family members from a fatal motor vehicle accident regardless of fault.
Third Party Liability Benefits
No-fault benefits are minor compared to the amount of the claim against an auto insurance company for the party at fault. In this claim, for which legal counsel is required, there is no limit to the amount that may be claimed for funeral and burial expenses as it is based upon reimbursement of costs incurred.
Under Section 8 of the Fatal Accidents Act of Alberta (FAA) there is a claim for the grief, and loss of care, guidance and companionship of the deceased which may be claimed by a parent, child, spouse or adult interdependent partner. The amount awarded is $75,000.00 for a parent who loses a child, $75,000.00 for a spouse who loses a spouse and $45,000.00 for a child who loses a parent. Note: under section 8(3) of the FAA a spouse cannot recover for this if they are living separate and apart at the time of their spouse’s death.
An April 2010 amendment to the Fatal Accidents Act now allows $75,000.00 bereavement to the parents to be divided equally between the parents, regardless of the age of the deceased at the time of death. Prior to this amendment parents would only receive a bereavement amount if the deceased was a minor at the time of death.
2. Loss of Dependency
Additional amounts that can be claimed against the insurance company for the party at fault for a wrongful death is a function of who is left behind. For example, the sole income-earner in a family with young children with a young spouse dependant on the deceased’s income will result in a large claim. On the other hand, the tragic loss of a child, unfortunately in the eyes of the law, does not result in significant compensation to the survivors on the basis that the survivors were not dependant on the child’s income. However, in some cases parents have successfully brought a claim for loss of dependency in old age on the child’s future income.
The calculation, for example, for a deceased family income-earner would be as follows.
Calculate the expected gross income of the deceased had he/she lived over the balance of the deceased’s working life utilizing the deceased’s historical earning rate updated for inflation, which may also be increased for work productivity/promotion. Subtract the income taxes that the deceased would have paid to arrive at a net income. Add the annual cash value of the fringe benefits the deceased had at work for such benefits as a pension plan, health benefits, dental benefits and disability benefits all of which can be calculated to result in a cash equivalent to be added to the net income.
Then a deduction must be made for the deceased’s personal expenditures that he or she would have made had he or she survived. This amount can vary depending on the number of people in the family with 20% as a benchmark - the amount of personal expenditures decreasing as the number of children increase.
Then apply a divorce contingency deduction on the basis that many marriages end in divorce. Finally, depending upon the age of the deceased, a re-marriage contingency would also be applied. The amount now arrived at is the potential settlement amount for the loss of dependency head of damages only. As this is paid immediately and in full on settlement or Judgment, a present value calculation must be made to reflect the fact that the recipient can invest the lump sum and earn additional income which would result in over compensation if a deduction for present value was not made.
3. Loss of Housekeeping Capacity
Another head of damages is a loss of housekeeping services claim, which is particularly important and can be quite large for the deceased who was primarily responsible for taking care of the household and child-rearing. This calculation is made based upon the hours the deceased worked in the household for such items as shopping, meal preparation, cleaning, child care, transportation services, maintenance, repairs indoor and outdoor, etc. If the deceased was a full-time homemaker with several children this claim can be large.
4. Out-of-Pocket Expenses
In addition under the Fatal Accidents Act of Alberta (FAA) other claims which may be made against the party at fault include the following:
a) Expenses incurred for the care and well being of the deceased between time of injury and death may be claimed by a spouse, adult interdependent partner, parent, child, brother or sister under section 7(a) of the FAA.
b) Travel and accommodation expenses incurred in visiting the deceased between the time of the injury and death. This may be claimed by the spouse, adult, interdependent partner, parent, child, brother or sister under section 7(b) of the FAA.
c) Funeral expenses. Expenses of the funeral and the disposal of the body of the deceased, including all things supplied and services rendered in connection with the funeral and disposal may be claimed by the spouse, adult interdependent partner, parent, child, brother or sister under section 7(c) of the FAA. Simple proof of actual expenses is all that is needed. This is in addition to the $5,000.00 payable under the No-fault benefits.
d) Fees paid for grief counselling that was provided for the benefit of the spouse, adult interdependent partner, parent, child, brother or sister of the deceased, which is claimed under section 7(d) of the FAA. Proof of actual expenses needed.
1. Which driver is a fault?
In the difficult circumstances surrounding the death of a loved one it is common that fault or liability for the motor vehicle accident is not discussed immediately. However, if there is any concern about who may be at fault for a fatal motor vehicle accident it is important that family members contact legal counsel as soon as possible so that evidence of the accident scene itself may be preserved and witness statements taken for potential use later in any civil proceedings.
Also note that liability is not an all or nothing proposition. Fault can be shared between two drivers depending on the circumstances of the accident.
2. Seat Belts
Failure to wear a seat belt may result in the reduction of the claim of the survivors on the basis that the deceased contributed to the resulting death by failure to wear a seat belt. Again, expert evidence is crucial on an early basis to examine the seat belts for evidence of use as well as the vehicle itself. Failure to wear a seat belt may result in a reduction of the survivors’ claims by 10% to 30% depending on the facts of the case.
Wrongful death claims are a complex area of law. Very different claim amounts are arrived at depending on which family member was the victim of a fatal motor vehicle accident, who the survivors are, who was at fault, and whether seat belts were worn. The deceased’s family should contact a lawyer experienced in wrongful death claims so that the surviving family members may make an informed decision about whether to hire a lawyer and proceed with a claim, and if proceeding with a claim act expeditiously to preserve necessary evidence.
Handel Law Firm is an Alberta law firm with offices in Edmonton, Calgary, and Red Deer that provides a free no obligation initial consultation to assist surviving family members in determining if they should go ahead with a wrongful death claim. Phone toll free: 1-877-914-1199 and ask to speak directly to Brent Handel.
|Question #2||What is Pre-Need, and why should it be used?|
|Answer:||Pre-Need is simply the prearrangement and the planning of funeral services before the need arises, often years before the death occurs. A funeral director records your preferences for the type of service desired, music and flowers, casket selection or cremation, and other information. You and your family receive a copy of the preferences, and the funeral home keeps a copy as well. Keeping these records in an accessible place is important to surviving family members.|
People prearrange funerals for many reasons. Some may have definite preferences concerning the funeral service or merchandise and that their families be informed or involved in the decisions. Others want to save their survivors from having to make the decisions at a difficult and confusing time.
Some individuals who have been faced with making selections for loved ones may wish to spare others from the indecision, guessing, emotion, or anxiety they experienced. Still others may prearrange because no one else is capable of making responsible decisions. Many like the benefit of financial savings that come from prepaying expenses. In any case, funeral prearrangement can ease many concerns and is often viewed as an element of estate planning.
Do you have to pay for anything?
No, although families choose to for many reasons. Prefinancing reduces financial concerns, preventing an an unnecessary burden at a time of loss because it ensures funds are available when needed. Prefinancing can help offset. Inflation-allowing you to pay tomorrow's costs as today's prices.
What are prefinancing options?
Generally, trust and life insurance provide ways to fund your choices. Each provides a different set of advantages and options.
Trusts can be revocable or irrevocable. In most cases, they are revocable, meaning that funds can be withdrawn at any time. At the time of death, however, these funds can be paid directly to the funeral home upon presentation of the death certificate. The process assures your funeral expenses are paid.
Trusts are often used to protect an individual's assets and solve some estate consequences. For those in nursing homes, for example, this method helps assure that funds will be available long after all other finances are depleted. Taxes on earnings can be the responsibility of the funeral home and not the individual.
With life insurance, coverage often begins the day you apply for a policy, and you may not be required to hold your policy for a specified period of time before you receive full benefits. This funding helps assure you're financially cared for no matter when death occurs. Flexible payment plans may also be available.
In most cases, the use of services indicated at the time of prefinancing means no additional cost should be incurred at the time of death.
What if plans change?
If all or the funeral preparations take place at a funeral home other than the one prearranged with, records of your preferences can be transferred. If funds were in a trust, they normally will be paid to the funeral home providing services.
Additional, insurance will be applied toward your arrangements regardless of the funeral home that provides services, subject to the funeral home's policy and provincial laws. The funeral home you arrange with may offer some special programs to assure you are protected no matter when death occurs.
How do you prearrange?
Services can be planned for you and your family members at a convenient time by contacting the funeral director to discuss the selection of merchandise and services. Simply ask the funeral director of your choices, either at the firm or in the comfort of your own home. This simple gesture of consideration can help your family. Funeral arranging before the need arises is thoughtful and easy to do.
|Question #3||What procedure should be followed if a death occurs while away from home?|
|Answer:||If death occurs at a distant point, it is wise to consult a funeral director in your community at the first opportunity. His or her personal reputation for integrity and honesty will reassure the family that their wishes will be followed, details arranged and costs kept to the amount desired. If cremation or interment is to be made at the place of death, your local funeral director may only recommend another funeral home or clarify some detail. There is no charge for such consultation.|
|Question #4||Who can take control of the body of someone who has died?|
|Answer:||This is called THE LINE OF AUTHORITY|
1. The personal representative designated in the will of the deceased
2. The spouse or adult interdependent partner of the deceased, if the spouse or adult interdependent partner was living with the deceased at the time of death
3. an adult child of the deceased
4. a parent of the deceased
5. a guardian of the deceased under the Dependent Adults Act or, if the deceased is a minor, in the Child Welfare Act or the Domestic Relations Act
6. an adult grandchild of the deceased
7. an adult brother or sister of the deceased
8. an adult nephew or niece of the deceased
9. an adult next of kin of the deceased determined on the basis provided by sections 8 and 9 of the Intestate Succession Act
10. the Public Trustee
11. an adult person having some relationship with the deceased not based on blood ties or affinity
12. the Minister of Human Resources and Employment
|Question #5||Who issues an official death certificate?|
|Answer:||An official Certificate of Death may be obtained from private licensing bureaus. There is a fee and the funeral director can provide instruction for application.|
|Question #6||Who issues a Statement of Death?|
|Answer:||Your funeral director will issue a Statement of Death. That is an acceptable proof of death in most instances.|
|Question #7||Why is embalming necessary?|
|Answer:||Public health and sanitation are the principal reasons for embalming as well as preservation and restoration of human remains. Embalming encourages the physiological and psychological well being of the bereaved. Embalming is not mandatory, but without specific instruction, this is usually done. There are also certain regulations to be followed if public transportation is involved.|
|Question #8||What is the value of the funeral?|
|Answer:||A funeral is an important part of the mourning process and fulfills the needs of the bereaved. It also:|
a. marks with dignity the conclusion of life;
b. brings meaning to the mystery of death, through a ceremony;
c. provides hope and a faith in the future;
d. provides mourners with an opportunity to share the loss and lend their support for a normal return to everyday life; and
e. gives the bereaved family a social outlet to express their feelings.
|Question #9||Why is viewing important?|
|Answer:||This is helpful in accepting that death has occurred, especially to the immediate family. Each family member can physically say farewell.|
|Question #10||Is there viewing with cremation?|
|Answer:||Most people who select cremation have a viewing and a ceremony, which is very helpful to the family before the cremation takes place.|
|Question #11||Can I donate my body to medical science?|
|Answer:||An Albertan may bequeath all or part of his or her body for medical education. Some requirements must be met for the body to be accepted. There may be some costs to the family.|
It is still appropriate to honor the deceased with a funeral service. Individuals wanting more specific information on the body donor program should contact their funeral director, the University of Calgary or the University of Alberta in Edmonton.
|Question #12||Should I consider donating organs and tissue?|
|Answer:||There is no greater gift than the "Gift of Life and Sight."|
One person can change the lives of up to 7 people through organ donation and up to 75 people through tissue donation. Procedures available in Alberta include the use of heart, lung, liver, kidney, pancreas, eyes, heart valves, bowel, skin and bone for transplantation. Recipients benefit every day from the generosity of those who have donated organs and tissues after their death and of the families who have respected these wishes and given the needed consent to initiate the donation process.
HOPE Coordinators in Northern Alberta and the Southern Alberta Organ and Tissue Donation Program are available 24 hours a day to answer any questions regarding the donation process. HOPE Program contact is 866.407.1970. and Southern Alberta Program Coordinator contact is 403.944.8700
Families can be reassured that their loved one will be treated with respect and dignity throughout the donation process.
Organ donation does not interfere with a family's funeral plans.
|Question #13||Is there a fee for the clergy or the use of a church?|
|Answer:||The fee may depend on whether or not the deceased had some church affiliation or involvement. It is customary to provide an honorarium to the officiating clergy. Local policy set by the congregation or district will determine if there is a rental charge for the church. Your funeral director can help with these questions.|
|Question #14||What is a Funeral Celebrant?|
|Answer:||A Celebrant is a person who seeks to meet the needs of families during their time of loss. They serve by providing a funeral service that is personalized to reflect the personality and lifestyle of the deceased. |
What Does a Celebrant Offer?
*The Celebrant offers an alternative to a service provided by a clergy person for those families who are not affiliated with a church or who do not wish to have a traditional religious funeral service.
*The Celebrant has been specifically trained to design a service that is completely personal, incorporating those unique stories, songs, and experiences that defined the loved one.
*The Celebrant will schedule a special "Family Time" meeting when the family can share memories, anecdotes and defining moments in the loved one's life. The essence of the service will be based upon the remembrances of the family, and family and friends will be encouraged to participate.
*The Celebrant has developed a library of resources available for readings, music, ceremonies, and personal touches. He/She will consult with the family to help them choose the different parts of the service that reflect their loved one.
*The Celebrant is bound by a Code of Ethics for complete confidentiality in all dealings with the family.
|Question #15||Is there a waiting period in Alberta before cremation can occur?|
|Answer:||In Alberta, there is no restriction on when a cremation may occur|
|Question #16||Why do funeral homes or cemeteries have unclaimed cremated remains in storage?|
|Answer:||Every year, funeral homes and crematoriums throughout Canada and the US agree to temporarily house or store the cremated remains of a family’s loved one. A funeral home’s willingness to store cremated remains is a service that is highly regarded and appreciated by most families. |
|Question #17||Why might a family choose to store the cremated remains of their loved one?|
|Answer:||• To bury the urn in a location other than the community in which the death occurs, such as another province or country.|
• To bury the urn in a local cemetery when weather conditions improve, as may occur during the winter months.
• To hold the urn until the death of the deceased’s spouse or parent, in order that they can be interred together.
• To hold the urn until family members or friends outside the province or country are available to attend interment.
• To hold the urn for interment on a particular date, such as Mother’s Day or Father’s Day.
|Question #18||Is there a cost to the family for storing cremated remains?|
|Answer:||• A funeral home/crematorium must not charge for holding or storing cremated remains during the 60-day period following cremation. |
• After the initial 60-day period following cremation, a storage fee, determined by the business storing the cremated remains, may be charged to the family.
|Question #19||What is the concern to funeral directors when families decide to store cremated remains?|
|Answer:||The concern is that families may leave the cremated remains at the funeral home/crematorium for an indefinite period and that the cremated remains may never be claimed. |
|Question #20||What are the important points that funeral directors should stress to families about cremated remains?|
|Answer:||• Emphasize that the importance of having a concrete final disposition location for the cremated remains, whether they are scattered, placed in a columbarium, or buried. |
• Emphasize that the storage of cremated remains is a temporary arrangement only.
• Stress the importance of memorialization and perpetual care services provided by the cemetery, such as a columbarium niche, mausoleum columbarium, scattering garden, memorial woods, and/or burial plot.
|Question #21||What can the funeral home or crematorium do if the cremated remains are unclaimed?|
|Answer:||• The funeral home/crematorium should make reasonable effort to contact the executor/person in charge of arrangements to remind them that the cremated remains are still stored in their care and should be picked up for final disposition. |
• Under provincial regulations, if the cremated remains are not retrieved within ONE YEAR from the date of cremation, the funeral home or crematorium has the right to dispose of the cremated remains.
|Question #22||How do I set up an informal trust account for a family member or friend?|
|Answer:||1. Individuals requesting this type of account should already have a Banking relationship with the financial institution.|
2. The request should come from an existing customer who wants to open the account to collect funds to benefit an individual, family or group which has met with a personal tragedy.
Example: John Smith’s wife passed away unexpectedly. John and his wife have 3 children. The suggestion is made that John may want to consider setting up a donation account as people may want to provide him monetary support to assist with caring for the children. John cannot set up an In-Trust donation account with himself as the beneficiary. An independent 3rd party (family friend or relative) must set up the account (at their own financial institution) with the money collected being held “in trust” for John and his children.
3. There are potential tax liability issues that may need to be considered prior to opening the account and therefore a Chartered Account should be consulted.
4. There are potential Legal liability issues that may need to be considered prior to opening the account and therefore Legal Counsel should be consulted.
5. We are not able to process any items payable directly to the beneficiary of the account (i.e. in the example above if someone brought in an item payable to John Smith or any of his children we would not be able to process). The account would belong to the individual that opened the account and therefore any deposited items would need to be payable to them directly or in trust for the beneficiary.
6. The financial institution is not responsible for how the funds in the account are dispersed.
7. The financial institution is not liable for the administration of the account.
8. Tax receipts are not issued for this type of account as the entity is not a registered charity.
|Question #23||Where can I train to be a funeral professional?|
|Answer:||The schools presently recognized in Alberta are the Canadian College of Funeral Service and Mount Royal University in Calgary. Both schools have a unique educational format and invite your questions. |
Mount Royal University: conted.mtroyal.ca/fde
Canadian College of Funeral Service: www.ccfs.ca