By Rebecca Lively
This paper is made available for educational purposes only. The intent of this paper is to provide general information on the law. Laws vary from state to state and this paper cannot be considered as specific legal advice in any state. This paper should not be used a substitute for the advice of a competent attorney licensed in your state.
On December 15, 2004, Orville Richardson signed up with Alcor Life Extension Foundation, Inc. to have his body cryopreserved in the event of his legal death. This was not a simple matter for Orville. When Orville signed up with Alcor, he paid an upfront lump sum payment of $53,500. He also had to read and fill out at least three lengthy legal agreements expressing his intentions. Ultimately, before Orville’s arrangements with Alcor could become final he had to gather two witnesses and a notary and attest to his wishes publically.
On February 21, 2009, Orville Richardson was embalmed and buried. Orville had not changed his mind about his arrangements prior to his legal death. Orville did not want to be buried and the people who made the arrangements to bury Orville knew it. Yet, despite the contracts he had signed, the money he had paid, and the people he had told, no one stepped in to protect Orville’s wishes or inform Alcor of his legal death.
How did Orville go from a newly signed up cryonicist to embalmed and buried six-feet underground? Unfortunately, Orville did not do enough to ensure that his cryopreservation would begin as soon as possible after his legal death. The unfortunate truth is that the family members of cryonicists often pose the greatest risk to a prompt cryopreservation. Orville’s expressed wishes for cryopreservation were ignored by his own brother and sister after he became unable to take care of himself.
Accordingly, it is critical for cryonicists to manage the risk that family members pose to a successful and prompt cryopreservation. The purpose of this article is to suggest legal and practical strategies to minimize the risk of unsupportive family members and to limit the amount of time which passes between legal death and the start of cryopreservation procedures for as many cryonicists as possible.
While a precise description of the laws and policies in every state and country is far beyond the scope of this article, the below categories are intended to point cryonicists in the right direction to avoid devastating conflicts with their arrangements. However, nothing can replace hiring a knowledgeable and cryonics-friendly attorney in your jurisdiction.I. Sign Up With a Provider
The September 1989 issue of Cryonics Magazine contained a survey of 109 people who identified as “cryonicists.” Of the respondents, 34% indicated that they were not signed up with any cryonics organization. While this percentage has likely improved in the twenty-plus years since the survey was taken, it is safe to assume that at least some of the intended readers of this article have not yet signed up with a cryonics organization despite identifying as cryonicists.
Obviously, the first and most important step toward cryopreservation is signing up and arranging funding. The excuses for not signing up are varied and range from not having family support to not being able to decide which cryonics organization to sign up with to not having the money to being “young and healthy” and waiting until you “need” cryonics to sign up.
Regardless of the reason, if you are not signed up for cryonics your best case scenario at legal death involves suffering ischemic damage while a friend or loved one makes last-minute arrangements for your cryopreservation. Of course, the more likely scenario is that such last-minute arrangements will not be possible.
Being “young and healthy” is no excuse either. First, young and healthy people die every day. Second, the best time to arrange for life insurance to fund your cryopreservation is when you are young and healthy. Locking in the relatively low life insurance premiums generally available to the under-forty set is reason enough to arrange funding and sign up as soon as possible.
If you can’t decide which organization to sign up with, just flip a coin. This may sound like a cavalier way to make such an important life decision, but years of indecision could lead to your legal death before arrangements are made. If you change your mind after you have signed up with one organization, just switch. Nothing says you cannot continue to research your options after you have signed up with one organization or the other.
While signing up with a cryonics provider seems like the simple and obvious solution, it is the most important step you can possibly take toward ensuring you are cryopreserved at the time of your legal death.II. Designate a Guardian
Orville knew his family was not supportive of his decision to be cryopreserved. Indeed, the brother and sister who cared for Orville after he was unable to care for himself admitted that they “tried to talk [Orville] out of” his plan to be cryopreserved and “emphatically told him they would have nothing to do with his plan.”
Since Orville knew that his family did not support his cryonics arrangements, he should have taken steps to prevent them from making decisions if he ever became incapacitated. Instead, when Orville began showing signs of dementia in 2007, his sister easily obtained an appointment as his guardian. Once she was appointed as his guardian, she had complete decision making authority regarding Orville’s medical care and treatment.
This could have been prevented. Most states allow you to execute a durable medical power of attorney to designate who should oversee your medical affairs in the event you become incapacitated. These states also generally allow you to specifically disallow a potential guardian. In addition, you can specify what decisions your guardian is and is not permitted to make and provide specific restrictions. Using a medical power of attorney, you can do four important things:
Authorized medical power of attorney forms (also known and health care proxy or designation of guardian in the event the need arises) differ by state and country. You may be able to find the appropriate form for your jurisdiction by searching your state government’s website or the website of a hospital doing business in your state. At a minimum, most forms contain a space for the designation of a guardian and an alternate. Most forms also require two witnesses and a notary. Your witnesses cannot also be designated as guardians. In the United States, an appropriate form should specifically address the HIPAA privacy laws as they apply to your guardian.III. Execute a Living Will
A Living Will is a legal document, which provides specific direction to health care providers in the event that you are terminally ill. A Living Will is also known as an Advanced Healthcare Directive. Coupled with the designation of an appropriate guardian, a Living Will can ensure that your cryonics provider will be contacted and any necessary protocols will be followed prior to your legal death. Your Living Will can also dictate your wishes regarding the removal of life support measures under various circumstances. If it is your desire to be removed from life support, it is recommended that you specify that your health care providers should wait to remove life sustaining treatment until your cryonics provider’s support staff is on hand to begin any necessary protocols as soon as possible after your legal death.
Like all other legal documents, a Living Will is a state specific document. However, in most states the witness and notary requirements are similar to the designation of a guardian. For that reason, it will probably be convenient for you to execute a Living Will at the same time as your medical power of attorney.IV. Add a “No Contest” Clause to Your Will
Looking back to the unfortunate situation with Orville Richardson, the question remains: If his family was so intent on having him buried, how did Alcor ever discover that Orville’s wishes were ignored? The answer is simple, Money. Remember the $53,500 that Orville prepaid to Alcor? — his family called requesting a refund.
The unfortunate and sad truth is that many challenges to cryonics arrangements are motivated at least in part by the money at stake. Because cryopreservation is funded in some manner which is usually payable at death, family members often have a desire to access the funds earmarked for cryopreservation. If the cryopreservation does not occur, they reason, the money will go to them. Had Orville ensured that the money could never be available to his brother and sister, perhaps they would have chosen to honor his wishes.
A critical step toward controlling the purse strings of your estate after your death is executing a Last Will and Testament. A Will dictates the disposition of your assets and property and can also reiterate your cryonics related wishes. Your cryonics paperwork most likely included a document stating that it is your Will to be cryopreserved. For this reason, it is critical that your attorney be aware of all of your cryonics paperwork so that you do not unintentionally supersede your cryonics documents with your new Will.
Most states recognize a special Will provision called a “no contest” or “in terrorem” clause. This clause states that if anyone interferes with your Will they forfeit everything granted to them by your Will. While the issue has never been litigated, this provision could easily be drafted to extend to interference with your cryonics arrangements. A creative lawyer may even attempt to draft a provision which provides for an inheritance on a sliding scale based on the amount of time which passes between your legal death and your cryopreservation.
The primary caveat to using a “no contest” clause to financially incentivize your family to follow your cryonics arrangements is that you have to leave them something substantial in your Will in order to make it worthwhile for them to abide by its terms. Leaving a family member very little in your Will makes a “no contest” clause a worthless protection because they will not mind risking their small inheritance for the chance at the big “payday” that might result if they prevented your cryopreservation. However, assuming you have something to give, a “no contest” clause can be a substantial motivator for an otherwise reluctant family member.
A “no contest” clause is subject to a probable cause exception in many states. The probable cause exception allows a person to collect under your will despite challenging it if they had probable cause to do so. Probable cause is determined by the court and cannot be determined until after a challenge has been made. For this reason, a person challenging a Will despite a “no contest” clause takes a substantial risk of disinheritance. At this time, “no contest” provisions are not enforced in either Florida or Indiana.V. Change Your Contingent Beneficiary
Most cryonicists fund their cryonics arrangements using a life insurance policy listing their cryonics provider as the beneficiary. However, problems may arise when you list a family member as contingent beneficiary or when you do not list a contingent beneficiary. Contingent beneficiaries collect from the life insurance policy if your primary beneficiary cannot collect. If no contingent beneficiary is listed and the contingency is triggered, the funds from the policy will pass to your estate and be distributed under your Will or by the laws of intestacy (specific laws that govern the distribution of a deceased person’s assets if they die without a Will).
Life insurance policy contingencies create an incentive for family members to challenge your cryopreservation if they have hope of collecting the insurance proceeds. Cryonics life insurance policies can be several hundred thousand dollars. That amount of money is enough to sway almost anyone, especially a family member who is skeptical of your arrangements.
It is critical to remove any financial incentive to challenging your cryonics arrangements. For this reason, you should name a contingent beneficiary who is entirely unrelated to you. Your contingent beneficiary will not ever know that they are your contingent beneficiary unless the contingency is triggered. This contingent beneficiary should be an established charity organization because it is likely that they will still exist if the contingency is ever triggered. Moreover, they will have no reason to believe that they are in a position to benefit from your estate or that your estate even exists and thus no motivation to challenge your cryonics arrangements.VI. Tell People About Your Arrangements
All of the legal forms in the world cannot guarantee that you will be cryopreserved if you put them in a drawer and do not tell anyone they are there. Make several copies of every cryonics related document that you sign and give them to trusted individuals. Tell those individuals where the originals are located. At a minimum, keep a copy of your paperwork in at least four places: (1) with your cryonics provider; (2) in a clearly marked folder where you keep other important documents; (3) with the person who you have designated as your guardian; (4) at your attorney’s office. Keep the forms up to date and ensure that any old forms are destroyed or clearly marked as “SUPERCEDED” and stored with your new documents.
In addition to making sure your legal forms are not buried in a desk drawer, let other people know about your plans in general. If the unthinkable happens and your right to cryonics is litigated in the probate court you should ensure that witnesses are available to testify and say, “he told me that he wanted to be cryopreserved on many occasions.” Additionally, telling friends and family about your arrangements ensures that your cryonics provider will be promptly notified in the event of an accident or illness. An additional option is to go the extra mile and make a video of yourself explaining your wishes and desires. This video can provide further evidence of your strong desire to be cryopreserved.VII. Conclusion
In the end, the Illinois Appellate Court has ordered that Orville Richardson will get his wish to be cryopreserved. However, well over one year has passed since his burial in February 2009. The damage that has occurred in that time is an unthinkable disaster that no cryonicist should endure. This disaster could have been prevented if Orville had taken the proper steps to prevent his siblings from having medical decision making authority, make his last wishes known, and remove all financial incentives to hindering his cryopreservation.
The ultimate outcome of the Orville Richardson legal case is hopeful and the precedent it has set will help future cryonicists. However, the presence of supportive legal precedent will not save you from the ischemic damage which will occur while you wait for a court to rule. Do not become the next cryonics legal battle. If you have already put the time and money into signing up with a cryonics organization, put in a little bit more effort and safeguard your arrangements in as many legal and practical ways as you can.
© 2010-2011 Rebecca Lively
REBECCA LIVELY is an attorney in Texas. Rebecca is a graduate of St. Mary’s Law School where she graduated Summa Cum Laude in the top 2% of her class. At St. Mary’s, Rebecca was an Associate Editor of the St. Mary’s Law Journal, member of Phi Delta Phi, and Vice President of the Technology and Intellectual Property Association. Prior to St. Mary’s, Rebecca received her BBA in Information Systems from the University of Texas at San Antonio where she graduated Magna Cum Laude with Tier Two Honors from the Honors College. Rebecca is licensed to practice before the Western District of Texas and the Texas Supreme Court.