Cryonics

The primary and most important legal issue from the point of view of the person interested in cryopreservation is to have legally enforceable documents directing the disposition of their body to the cryonics organization for cryopreservation. The law of each of the States is different in this area. The controlling law will be that of the State of residence of the person.

The Uniform Anatomical Gift Act provides the best way to ensure the delivery of a person’s body to a cryonics organization. This law has been enacted in forty six States. An anatomical gift is defined as a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation, therapy, research or education. The law provides that before the death of the person, the anatomical gift may be made by the person, his/her agent named in a health care power of attorney or a Guardian. If the person has not signed an anatomical gift form prior to their death, the law sets forth an order of priority of persons who may make an anatomical gift as follows: 1) agent named in a health care power of attorney; 2) surviving spouse; 3) adult children; 4) parents. However, these persons cannot revoke an Anatomical Gift document signed by the person  before their death.

The law provides numerous methods for making the gift. The best method is to make the gift in a written document called a “Document of Gift” or “Anatomical Gift Form.”   The standard forms that are used are not appropriate for a disposition of the body to a cryonics organization. The standard language in such forms generally contemplate a donation of organs, eyes and tissue but do not specify a donation of the whole body. Therefore, the Document of Gift should clarify that your whole body, without removal of any organs or tissues, is to be donated to the cryonics organization for purposes of research and education.  You should not enroll in a donor registry or indicate on your driver’s license that you have an anatomical gift document. This would imply to the hospital or other facility that you intend to donate your organs contrary to your intention for a whole body donation to a cryonics organization. The execution of an anatomical gift document creates in the cryonics organization a legal right to receive the body which is superior to the rights of any other person.

Similar to the organ donation issue, you obviously do not want to have an autopsy done to your body. The County Coroner has a legal duty to perform an autopsy  if a person dies as a result of criminal or other violent means, by casualty, by suicide, or in any suspicious or unusual manner.  The legal authority of the coroner may be difficult to overcome even if you have the Appointment and Anatomical Gift documents stating your wishes for cryopreservation.  Some States, including Ohio, provide a limited right of a person to state that an autopsy is contrary to their religious beliefs. This statement may avoid an autopsy but the coroner may still insist on performing an autopsy if there is a compelling public necessity. This religious statement should be included in the Appointment document discussed below.

At common law, the decedent’s body is not considered to be part of the decedent’s estate. The States have differed as to whether a provision in a Will expressing a direction concerning the disposition of the decedent’s body should be treated as binding on the Court or Executor. However, in most States the law is that such provisions are not binding and that the next of kin have a superior right to determine the place and method of burial or other disposition.

However, the common law has changed in many States due to a variety of circumstances giving rise to family disputes and lawsuits concerning funerals and burials. Ohio law provides for an enforceable legal document appointing a representative with authority to exercise the rights of disposition of the body and related provisions to clarify the law in this unsettled area. It is called an Appointment of Representative For Disposition of Bodily Remains (referred to herein as “Appointment document”).  This document assigns the right of disposition of the body. Ohio law requires appointment of an individual person. You cannot name an organization as you can under the Uniform Anatomical Gift Act. However, you could name a person (e.g., the Director) at the cryonics organization.  Even though the anatomical gift should control over the appointment document, it is advisable to do both documents to ensure your wishes are carried out. You could also appoint a family member or friend who is in agreement with your desire for cryopreservation. The document should also specifically direct the appointed person to take all required steps for your cryopreservation.

It is important to have a person appointed under a Health Care Power of Attorney (aka   Advance Health Care Directive) to make medical decisions for you if you are unconscious or otherwise do not have the mental capacity to make your own medical decisions. This could happen just prior to your legal death as your physical and mental health decline. It is important at this time to have a standby and transport team ready to initiate  cryonics procedures  immediately after you are declared legally dead.   The person who has legal authority to make medical decisions during your lifetime should be making these cryonics arrangements for you. If you have no Health Care Power of Attorney, State law will provide for a default person who may be different than the person designated in the Appointment document or anatomical gift form. You could then have a conflict between these persons and your intention for cryopreservation may not be carried out. Thus, it is important to also have a health care power of attorney appointing the appropriate person.

By signing the above three documents (Anatomical Gift, Appointment & Health Care POA), you should be able to avoid the type of family dispute and litigation that occurred in the Ted Williams estate.  It is important that you check with a qualified lawyer in this area of law for preparation of legal documents directing disposition of your body according to your intentions.

The other important consideration is the creation of an estate plan that will preserve an estate which will be available for the benefit of the cryonics patient upon their revival at some future date. A Will of course is not sufficient since a Will distributes the deceased person’s estate to named beneficiaries. However, a Cryonics Dynasty Trust can be set up to hold some or all of the estate to be available to the cryonics patient upon revival. There are many different types of trusts and variations on the drafting of a trust for a particular person planning on cryopreservation. Although you may read about a certain type of Cryonics Trust for a cryonics patient, it is important that each cryonics trust be drafted for the particular intentions and circumstances of each person. A Dynasty Trust is used in other types of estate plans. It is a complicated and advanced trust requiring a high level or expertise and experience. Therefore, it is important that you consult a qualified lawyer for preparation of a cryonics trust and other estate planning documents discussed above.

If your cryonics organization or professional group needs a speaker on the above topics, Michael Millonig is available for a presentation on these topics.

© 2015 Michael Millonig, LLC