From Cryonics Jan-Feb 2017
Legal Steps Toward Ensuring Your Wishes are Honored
by Rebecca K. Lively (© 2017 Rebecca K. 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 as a substitute for the advice of a competent attorney licensed in your state.
In 2010, I wrote an article How to Protect Your Cryonics Arrangements from Interference by Third Parties. Included were steps like signing up for cryonics and telling people about your arrangements. Additionally, I recommended executing legal documents appointing a medical guardian and making your cryonics wishes part of a living will. For background on the basics of these legal documents and general recommendations on how to protect yourself, I recommend you consult my earlier article. This article addresses the practical aspects of two of those recommendations—creating a living will (usually referred to as an advance directive) and appointing a medical guardian (a health care power of attorney). These two things can often be combined in a single document.
While executing the appropriate legal documents is easy in theory, many have expressed frustration finding an attorney who will assist them with such documents, determining the appropriate language to include, or meeting state-specific requirements. Moreover, despite the myth that all cryonicists are wealthy, many cryonicists don’t feel they have sufficient assets to warrant hiring an attorney or simply don’t have the funds to afford attorney fees. And, while some states, hospitals, and local bar associations make generic forms available, none of those forms contain the type of language most cryonicists would like to include in their legal documents. The following document is a first step toward filling that gap.
I. What is the Status Quo?
Often I hear that people do not want to spend the time or money to deal with advance directives and health care powers of attorney, especially when they’re “too young to need them.” For non-cryonicists, it may be perfectly reasonable to wait until later in life to take care of these requirements, especially because the law generally provides that the people closest to you, like your spouse, parents, or adult children will make legal decisions for you if you cannot make them for yourself. And, without an advance directive, doctors will usually take all medically reasonable measures to preserve life, even at great risk of brain damage. However, for cryonicists this legal status quo is almost never acceptable.
First, unless your family members are all cryonicists, having the law decide who will make medical decisions for you is a risky move, even if your family means well. Worse, if you have family members who are not supportive of your cryonics arrangements, they may end up as the very people who are making decisions for you when you are at your most vulnerable. And, even assuming that your cryonics provider is contacted, without any guidance from you, doctors cannot be expected to take advice or recommendations from your stand-by team. Thus, for those who have already executed the legal documents necessary to sign up with a cryonics provider, it makes sense to execute the additional documents necessary to appoint medical guardians who understand and support your wishes and to document those wishes in a format that physicians are already familiar with.
II. What is this Form?
Unfortunately, the legal requirements to execute an advance directive or medical power of attorney vary greatly among the states. Some states require all forms to contain mandatory disclosures or notices, some require very specific formats, and others place limits on who can serve as witnesses to your signature and execution of the documents. Creating one form that meets the requirements of every state is impossible.
The difficulties of finding the appropriate form, selecting the ideal language, and understanding state requirements are not unique to cryonicists. Accordingly, national bar associations and non-profits focused on elder care have made great strides to develop legal templates that meet the requirements of as many different states as possible. One notable effort, developed by non-profit Aging with Dignity, is called “Five Wishes” and claims to meet the requirements of 42 states. Five Wishes was developed with the assistance of the American Bar Association. An earlier version was analyzed in-depth by attorney Charles P. Sabatino who also conducted an exhaustive analysis of the requirements of all fifty states (National Advance Directives: One Attempt to Scale the Barriers). However, while these forms meet the legal requirements of many states, they do not contain tools to assist cryonicists in communicating their wishes about end of life care. Accordingly, this article contains an attempt to create a near-universal health care directive for cryonicists.
This form attempts to meet the requirements of as many states as possible and to address some common concerns of cryonicists. As written, this template intends to meet the legal requirements of 41 states. To do that, some clauses and sections are more restrictive than might be required by your state. For example, the form requires certification by a physician and “another health care professional” before it becomes effective because many states require such certification. This language is more restrictive than what is required by many states. If your state does not require such certification (such as in Arizona), explicitly stating in your document that you do not require any formal certification of incompetency may save precious time in an emergency situation. Additionally, state laws change frequently and there are currently no plans to update this form as state laws change.
The form is available in two downloadable formats:
III. How to Use this Form
A. Use this form after consulting your state specific statute
No one should use the attached template without consulting with their state-specific statute. The Charles P. Sabatino article referenced above contains legal citations for each state as of 2005 which may be a good starting point for locating your state’s current statute. After consulting the laws in your state, you may wish to change or modify the document to better comply with your state’s requirements. Additionally, if you live in a state that is currently not covered by this document as written, you may find that by appending your state’s mandatory disclaimers, the format otherwise complies with your state requirements.
B. Use this form as a guide to discussions with your attorney
Nothing can substitute for state-specific legal advice from a good attorney who understands your wishes and desires. And, while efforts have been made to draft this form so that it meets the legal requirements of as many states as possible (currently 41), at this time no attorney licensed to practice in any of the 41 states covered has reviewed the template. Many cryonicists lament that it is difficult to find an attorney who understands their wishes. Hopefully by providing your attorney with a starting point like the attached template, you will be better able to explain your unique objectives. Additionally, if you do not live in one of the covered states, you may benefit from the assistance of an attorney in crafting legal documents which meet the same intent but comply with the laws of your home state.
NOTE: I am currently working on compiling a list of cryonics-friendly attorneys by jurisdiction. If you are an attorney with cryonics arrangements and are willing to help in an emergency, please contact me. Additionally, if you have worked with an attorney to produce legal documents such as wills and powers of attorney that respect your cryonics arrangements, please provide me with your recommendations by email to negative196C-at-gmail.com.
C. Use this form in an emergency or as a stop-gap measure
This form may also be useful in an emergency situation or as a stop-gap measure while selecting an attorney to assist you in creating a more comprehensive document. If the status quo situation for health care guardians and medical decisions does not satisfy you, this form is one way to communicate your wishes to your doctors or loved ones, even if it is not legally enforceable. Thus, you may decide to use this form if a sudden need for a health care power of attorney or advance directive arises and you are unable to hire an attorney or perform a thorough review of your state law or if you have specific family members who you are concerned may try to interfere with your cryonics arrangements.
D. Use this form to capture your unique wishes
Cryonicists tend to update their beliefs about end of life care as science and technology advance. Thus, this form is intended to be customizable to your unique preferences. For example, you could include specific language addressing care and treatment if you are diagnosed with Alzheimer’s or specifics on cooling procedures that you have determined will lead to a better cryopreservation. Whether you use the form after consulting your state law or with the assistance of an attorney, ultimately you should ensure that it clearly expresses your specific wishes and desires when you are unable to express them yourself.
Hopefully the form will help you to better document your wishes so they will be followed when you are unable to speak for yourself. Please send any suggestions or recommendations regarding future versions of the form to negative196C-at-gmail.com. Additionally, I am working on a list of cryonics-friendly attorneys by jurisdiction. If you’ve found an attorney in your state who understood your wishes, please send me their contact information.
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.