Ohio Consumer Law Blog

Information on Ohio's Consumer Laws from Attorney Daniel Myers, Myers Law, LLC, not legal advice

Don’t Get Taken Advantage of After a Loved One Dies

In September of 2018, my mom passed away, and her fight with cancer ended. Through our visits and phone calls in the years before that, I heard about her battles with rampant medical billing errors, debt collection abuses, and the stress that those things cause to someone already dealing with their cancer diagnosis. I made it my new focus to fight against unfair and deceptive business practices, including illegal and deceptive medical billing. Today, I wanted to write about something related, but different. Families need to know that they have consumer protections under Ohio law when dealing with the aftermath of their loved one’s death. They should also take care during that time, when they feel most overwhelmed, to avoid unfair, deceptive, unconscionable, and illegal acts of businesses trying to use their emotional vulnerability to make a buck or two.

Warning: If you want to avoid reading an account of someone suffering from cancer, go ahead and click here to jump to the rest of the article.

After suffering for months from a cough that simply would not go away, and going through multiple tests, my mother was diagnosed with stage 4 lung cancer. After a lot of chemotherapy treatments, procedures from complications, medication, and processing, my mother called to tell me she was starting her in-home hospice care in the summer of 2018. My wife and I cancelled our anniversary plans, and went back and forth to visit her as often as we could. After less than two months, my mother passed away at home while being embraced by my brother and dad. I was on my way back to see her at the time.

When you find out someone you love is suffering from late-stage cancer, you have a lot of feelings to process. For me, there were the to-be-expected bouts of grief and sadness. Sometimes, there were feelings of hope. At first, there was a lot of prayer for healing. Later on, these prayers turned to pleas for peace for my mom. There were feelings of anger, loneliness, and sometimes numbness, especially in that time after my mom passed away. My dad had to see my mom suffering every day at home. We only saw her on the weekends, when she pretended to feel better so we wouldn’t worry so much.

But when you see even a fraction of the pain and suffering late-stage cancer causes, two things happen. First, you absolutely get behind the statement you may have heard or seen before: “f*** cancer.” Second, although it may pale by comparison to the suffering of your loved one, you understand that you are also suffering. It takes a mental and emotional toll on you and the rest of your family. Loneliness and numbness can set in.

And it is in that draining and vulnerable time that you are often expected to make big decisions at enormous financial costs. Businesses will use your emotions for their own gain. There are businesses that profit from death, and many do not care about you–they care about selling something to you. It’s my hope that this article helps you remember in that moment to take a step back, and protect yourself from the unfair, deceptive, unconscionable, and illegal tactics used by some businesses, like funeral homes, nursing homes, cemeteries, and debt collectors. While I provide some information about the law, this is not legal advice. You should feel empowered by this post to take steps to protect yourself, and watch out for red flags, when going through this difficult process.

Dealing with Funeral Homes, Cemeteries, Crematoriums, and Memorial / Monument Makers

Funeral arrangements can be very expensive. If you do not have life insurance or savings to help pay for some of those costs when you pass away, you may want to talk to a financial adviser to plan appropriately for that. But for many who cannot afford a $9,000 or more funeral bill, predatory businesses may offer “cheap” or “discount” services. Recently, an Akron, Ohio pastor was arrested and charged with abuse of a corpse and running an unlicensed funeral service business after complaints arose that people were waiting months or longer, with no communication, about the whereabouts or transfer of their loved one’s cremation ashes. Ashes of 89 people were found in one of his buildings. Whether it’s unreasonable delays, aggressive sales tactics, surprise costs, financial games, or neglect, families need to be careful.

Under Ohio’s consumer protection law, the Consumer Sales Practices Act (and similar local ordinances in the City of Cleveland and Summit County), it is unfair or deceptive for a business to violate or fail to follow regulations issued by the Ohio Attorney General, or to violate some other part of the law. It also allows courts to declare any other acts or conduct to be unfair, deceptive, or unconscionable, in violation of the law. Together, these rules, decisions, and statutes require businesses selling goods or services to consumers to do things like:

  1. satisfy all license, bond, registration, and insurance requirements in state or local law;
  2. give you a written notice about your right to a written or oral estimate for the cost of services, which requires your signature on your choice of estimate;
  3. give you the estimate that you requested (oral or written);
  4. not misstate or understate the estimated or actual cost of services to you;
  5. give you a dated, written receipt for any initial or down payment you make towards services, showing what you paid, what services the payment applied to, and whether it is refundable or not;
  6. give you a dated, written receipt for any subsequent payments you make towards those services, showing how much is left to be paid;
  7. deliver the services or the promised goods / items within 8 weeks from the initial payment or deposit, or refund you your deposit / offer you a refund of the deposit while you wait, if they cannot deliver within 8 weeks.
  8. complete their contracts without knowingly breaching them;
  9. not state that something was provided or done when it was not;
  10. not state that something is necessary when it is not;
  11. not misrepresent anything about the services or goods promised; and
  12. many other things found in the thousands of cases and hundreds of regulations.

There are other laws applicable to specific industries, like funeral homes and crematoriums. These require, among other things, specific notices and language in pre-paid funeral contracts, pre-paid cremation agreements, cremation authorization forms, and other disclosures.

When you are speaking with a funeral director or crematorium, you may want to have someone else there with you. It is easy for one person to be overcome by emotion and overwhelmed by high-pressure sales tactics. A second person can help you be on guard against deceptive and unfair sales tactics. They are also a good sounding board for ideas and a check on whether something is needed, wanted, reasonable, or outrageous. Similarly, you can avoid a lot of risks at this time by pre-planning with your loved one their funeral, burial, or cremation, and putting your wants and intents down in writing, if you have the opportunity to do that.

There should be no surprise bills or pricing at the end of the day. If you are given the proper estimate form, and select to receive a written estimate or oral estimate, the amount you are charged should be the same as the estimate, or be within a 10% range of that number. If it is not, and the payment demand from the business has unexpectedly jumped by more than 10% from the original estimate, without you getting the opportunity to authorize or decline the price increase, it is possible that business has engaged in unfair or deceptive conduct in violation of the law.

If you do not receive your loved one’s ashes within 8 weeks, and you have already paid all or part of the cremation expenses, the business may be engaging in unfair and deceptive conduct in violation of the law. They need to apprise you of any delay past this 8-week period, and offer to give you, or just give you, a refund while you wait. Otherwise, the law allows them to substitute any equal or greater value services or goods, but it is hard to imagine how this would apply to funeral or cremation services, unless the hold-up is a particular urn versus a more expensive or equally expensive option.

Companies that make monuments and memorials for families, or who pour the concrete for those monuments, and even the cemeteries themselves, have to comply with these consumer protection laws, as well. In another recent and heart-wrenching story, an Ohio family was forced to sue Myers Cemetery (which is not affiliated with me in any way I am aware of), and others, because the cemetery refused to allow them to install a headstone that it had previously approved, allegedly holding secret meetings and altering documents in the process. Their child had passed away from cancer, and the monument was designed to memorialize his life and interests. The cemetery is alleged to have violated Ohio’s consumer protection law under the circumstances. I cannot imagine the pain and stress that family is experiencing on top of the stress of losing their child to cancer. They should not have to deal with it, but due to the alleged conduct of the cemetery and others, they had no other choice but to go to court.

Sometimes, even when you follow the rules, taking all the steps possible to protect yourself while dotting all of your i’s and cross your t’s, you can still be ripped off and find yourself the victim of illegal acts and practices by bad businesses. Before you design and pay for a memorial or monument, it is a good idea to do what this family did, and seek/get approval from the cemetery in advance. Get it in writing, via email or otherwise.

If the monument or memorial maker takes a deposit or payment before you get the headstone, remember your rights under the consumer law’s 8-week and receipt rules. Having written proof of the design, the costs you agreed to, timing, materials, and your agreement, are helpful when it comes to avoiding miscommunications, misunderstandings, surprise costs, and later breaches of contract by bad businesses.

Dealing with Your Loved One’s Debt Collectors and Creditors

Either because they do not know that your loved one passed away, or they do not care, debt collectors and creditors rarely stop trying to collect money from someone who has died. Sometimes collection letters come in well after someone has died. Lawsuits have sometimes been filed against someone after their death. But often, these claims against your loved one are time-barred and cannot be enforced against you or the decedent’s estate.

Some claims are barred and invalid due to the passage of a statute of limitation. There are set periods of time in which a creditor must file a lawsuit in order to collect against someone, and if that deadline passes, whether it be 1 year, 2 years, 4 years, 6 years, or some other relevant timeframe from when the debt arose, without the creditor filing a lawsuit to collect on it, and without some partial payment or acknowledgment of the debt from your loved one, the debt could potentially be unenforceable. Before you pay debts of your deceased loved one, you should consult with a probate or estate planning attorney.

Even when a claim is not time barred, it might become unenforceable or invalid sixth months after your loved one died. With some exceptions, creditors must properly present a claim within sixth months of someone’s passing in order to collect it against the estate or others who received property from the estate. That time period can be shortened if the executor or administrator sends out a special notice outlined in the law. Before sending that notice, and before deciding whether a claim was properly presented, or needs to be paid, you should consult with a probate or estate planning attorney. If a claim is not properly presented under the law, within six months of someone’s death, that claim could become uncollectable as a matter of law. There is no legal obligation to pay invalid, illegal, or unenforceable claims. Because the claims are often not obviously valid or invalid, it is essential to get legal advice from a probate attorney at that time.

When the creditor hires a debt collector, even a lawyer, to collect a debt after it is invalid, or if that debt collector misrepresents the amount, character, or existence of a debt, you or your loved one might have a claim against that collector for violations of the Fair Debt Collection Practices Act, a federal law, as well as Ohio law. Not only might that debt collector owe you or your loved one’s estate damages and compensation, but you might be able to permanently stop, or enjoin, that collector from violating Ohio consumer protection laws in the future as to you and other families.

It is critical not to throw out or ignore claims, bills, or collection letters that come in. You, the probate lawyer, a consumer lawyer, or the executor / administrator of the estate might later review or need to review them to evaluate what, if anything, is owed, or to see if there is a consumer law violation that should be pursued for you or your loved one’s estate. You cannot wait long before consulting with a probate lawyer or consumer attorney–just as there are time limits on the creditor’s claims, there are also time limits on your or your loved one’s claims. Some deadlines are as short as one year from the date the law is violated, whether you knew about it then, discovered it then, or not.

Often, there are erroneous charges in medical bills or medical device bills that someone with late-stage cancer may receive. Studies show that medical billing errors are particularly stressful and harmful when they are large, and when they happen during cancer treatment. An oxygen concentrator or other devices that should be billed to private insurance, Medicare, or some other entity, may not have been properly adjusted or reduced. The invoice you receive may be thousands of dollars higher than what is actually owed. Medical bills often contain numerous misrepresentations that are serious and confusing. Between the cost of cancer treatments, the stress of the situation, and billing errors, it is easy to give up and “just pay the bill.” If you do that without first reviewing the bills or getting legal assistance to do so, you might be throwing away thousands, or even tens of thousands of dollars, to a con artist, scammer, or deceptive business. That money might not be owed, and would be better spent on a memorial, donation, or as support for the remaining family members.

Let me be clear: I’m not telling you to ignore bills. I’m not telling you to refuse to pay bills. I’m not telling you that nothing is owed. I am saying that it is easy to go to one extreme (pay them all) or the other (ignore all bills) due to the stress, planning, and emotional toll you are experiencing in that moment. You need to resist the urge to avoid the stress, and instead find someone to help you manage that situation and help you process the stressful situation you will find yourself in. This could be a friend, family member, a probate attorney, or possibly a consumer attorney. You should always contact an attorney at these times to get the legal advice you need in your situation–friends and family are well-meaning, but they do not have the legal experience or knowledge needed to know whether a bill is valid or not under the law.

Feel free in the comment section below, or in the social media post you may have seen this article in, to share what you are comfortable sharing about loss you have suffered, and any encouraging or supportive thoughts you want to share with others who are going through one of the saddest, most stressful times of their life. Dealing with this is tough. A lot of us have gone through this. There is help and support out there. You have rights. You have protections. You are not alone, even if you feel alone. But you need to ask for help. Those best able to help you won’t know about your situation unless you find them, tell them, and ask for help.

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2018, 2017, 2016 & 2014 Rising Star – Consumer Law – Super Lawyers

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