1 Ideal Cryonic Scenario, Then I Think There Is A

571 ideal cryonic scenario, then I think there is a2 case to be made of a district court, considering whether3 we are awakening a previously existing person4 rather than having created a child.5 DR. ROTHBLATT: Great. All righty. Well, I'd6 like to suggest -- first thank you very much --7 SEBASTIAN SETHE: Thank you.8 DR. ROTHBLATT: -- Sebastian. And we are now9 at the 20-minute informal discussion period. So by10 all means, continue to interact with11 Sebastian. But if you want to stay here and do12 that, that's fine. Otherwise, you can walk up13 stairs, there is more food and refreshments14 upstairs, and coffee and whatnot. Just be sure to15 be back down here in your seats by 10:10.16 (Whereupon, the proceedings went off the17 record for a break.)18 DR. ROTHBLATT: I would like to welcome19 everybody back into formal session and our 1st20 Colloquia on the Law of Transhuman Persons. Our21 next presenter is John Dedon. He is a partner at22 the law firm of Odin, Feldman & Pittleman, a23 professional corporation in Fairfax, Virginia. He24 is an expert on trust and estate law in particular,25 and he will be speaking on the topic of functions 581 of a trust protector during biostasis and at the2 time of cryogenic revival.3 John.4 JOHN DEDON, ESQUIRE: Thank you, Martine.5 You know as a trust in estate lawyer we spend6 most of our time trying to save a million dollars7 or $10 million or whatever the amount is in estate8 tax, or try to make sure that assets go down the9 generations and are protected for future decedents.10 So this is quite a challenge, to be part of this11 program and talk about transhuman persons; and12 Cryonic so, Martine, thank you very much for13 inviting me.14 The topic, as Martine said, functions of a15 trust protector during biostasis and at the time of16 cryogenic revival. Let me set up the fact pattern17 for you because, as we've gone from subjects that18 are certainly difficult to grasp, and I think now we19 are going to come back somewhat to practical. What20 we have here is Mr. and Mrs. Cryonic and they're21 establishing a trust. And the primary purpose of22 the trust is that assets will be there upon their23 revival from the cryogenic state. So they are24 going to have assets in place during biostasis, but25 also it's going to be there for them when they come 591 back. And the assets could be placed in the trust2 when they're alive, ideally they have the resources3 to make that happen. Or maybe the 4 asset will be placed upon their death.5 So we are relying on some traditional tools right6 now to have this happen. It's quite common to7 create what's called a dynasty trust. The idea is8 that you create assets or you create a trust for9 the assets to pass down through the generations10 and, therefore, future children, family members, et11 cetera. That's already there we can do that.12 What we haven't done before or what is uncommon is,13 well, what happens if Mr. and Mrs. Cryonic don't14 come out of biostasis? Where do the assets go?15 Does the law allow to even create this trust in the16 first place? So those are the types of things that17 we are dealing with. So just to set the table,18 these are our facts: Mr. and Mrs. Cryonic, they're19 the grantors, they have created the trust. They20 are also the primary beneficiaries. We may have21 other beneficiaries as well, but it's primarily for22 them. And we need a trustee because they’re going to23 be the person or the entity that manages these24 assets.25 So, not quite the technology problems we had 601 before. (laughter)2 So we've set up the parties. We are going to3 talk about the role of the trust protector, talk a4 little bit about who should serve as the trust5 protector, and then we will zero in and talk about6 the trust protector during biostasis and then7 during cryogenic revival, and we'll finish up with8 some administrative issues. Before I get to the9 trust protector, though, let me come back and talk10 a little bit about who the trustee should be. And11 we are fortunate that we'll have a discussion later12 in the day from Eric, who is with an institutional13 trust company, so we will hear from his14 perspective. But let's first talk about, well,15 just to set this up, who is the trustee? The16 trustee could be an individual, it could be a17 family member. What you really want, though, in18 this situation, because you don't know how long the19 trust is going to go for, you really need an20 institutional trustee. You need an institutional21 trustee because of the permanence. You want an22 institution that, even it's merged, there would be a23 successor. You want the professional management24 that an institutional trustee can provide. You25 want somebody or some entity that does this for a 611 living. So it's important to have that2 professional management. You also want the3 fiduciary duty that a corporate trustee can4 provide. A corporate trustee is going to be5 licensed and regulated, they're used to handling these6 types of things on a regular basis. And the7 dynasty trust that I talked about, that is commonly8 used these days. It would be unusual to have9 somebody serving other than a corporate trustee.10 So I haven't gotten to the trust protector yet, but11 we know we will have an institutional trustee to12 manage this trust, which finally, leads me to the13 role of the trust protector. The trust protector14 is really there to do what the grantor -- what15 Mr. and Mrs. Cryonic would do if they were alive,16 if they could. They are there to oversee the17 trust. And for the very reasons that we have the18 institutional trustee serving as the trustee, we19 need somebody who's more flexible, who can adapt to20 changes in the law, to changes in the facts, and21 have the ability to amend the trust as necessary.22 And so, while that may not be an institution to23 serve as the trust protector, because again of24 those fiduciary duties, it needs to be someone who25 has more flexibility. Could it be family? Could 621 it be beneficiaries? Well, again, we are talking2 about a trust that can go on for decades, or3 centuries. So it's unlikely that you're going to4 have one of those folks serve in that role.5 I know you're familiar with the Ted Williams'6 situation. There’s not the independence either7 that you get if you have a family member. So we've8 eliminated institutions. We've eliminated family.9 The logical role, to serve in that role, is a law10 firm or an accounting firm. They have the 11 the licensing requirements. They have the12 expertise, but they're more fluid. They don't have13 quite the same restrictions, the same regulations,14 so they're able to move in and make the kind of15 changes that may be appropriate.16 Now, having said that, you have the lawyer,17 the CPA who's able to make certain changes. It18 doesn't mean that these folks are not serving as a19 fiduciary just as the trustee is. We are talking20 about someone who owes the same duty of21 loyalty and the same duty of impartiality to22 Mr. and Mrs. Cryonic and to the beneficiaries,23 just as the bank does, as the corporate.24 Now we said it's important to have a trust25 protector to deal with changing law, changing 631 facts. What are some of the specific things that2 you'd be relying on the trust protector to do?3 Well, one would be to change the situs of the4 trust, the location of the trust. You can create a5 dynasty trust right now that continues in6 perpetuity for beneficiaries. You think of South7 Dakota, Delaware, Alaska, these are states that are8 friendly to dynasty trusts. But what happens if9 that law changes? The trust protector would be the10 one to say, you know, that we need to move from11 South Dakota, we need to move from Delaware, need12 to find an environment that's more friendly to13 having this trust go on forever. Some states may14 tax income and distributions from the trust more15 than others. You would want a trust protector who16 again, can find a friendlier environment for tax17 purposes. Maybe a state has particular laws that18 require distributions which are consistent with19 what the grantors want. So we would also be able20 to move it around. So, in general, a role of a21 trust protector: to be able to change the situs to22 the trust, as may be necessary 50 years from now or23 500 years from now.24 How about changing the trustee? Well, we know25 right now we are selecting a trustee because the 641 trustee is friendly to what the grantor wants to2 do. It can do for -- in the future what we believe3 Mr. and Mrs. Cryonic want, but that may not always4 be the case. Maybe their philosophy changes,5 maybe do get merged. We need to have the ability6 to shift to another trustee if necessary. Now it7 may be limited to just shifting to another8 corporate trustee to make sure it's consistent with9 what Mr. and Mrs. Cryonic want but we still need10 to have that flexibility built in.11 How about during the time that Mr. and12 Mrs. Cryonic are in the biostasis? What if13 we want to make distributions then? Okay. So this14 trust isn't just for when they're cryogenically15 revived, it's also during biostasis perhaps. So we16 want to have flexibility to allow distributions to17 come out if we can improve that care. Perhaps18 there are other beneficiaries in the trust as well.19 Even though this is primarily for biostasis and20 upon revival, maybe there is part of the trust21 that's being or could be used for children, for22 future generations. So the trust protector would23 work in conjunction with the trustee in making24 these distributions on an annual basis.25 Now I hope you're getting a sense what we are 651 talking about is a trust protector who is really2 acting in many ways on behalf of Mr. and Mrs.3 Cryonic, perhaps to a degree that they have the4 ability to rewrite the trust. Okay. So, yes,5 they're fiduciaries. Yes, they have to do what's6 in the best interest of the grantors and of the7 beneficiaries. But who's to say what that means a8 hundred or 500 years from now? You're giving the9 trust protector a lot of authority, to really alter10 the terms of this trust. So perhaps, there are11 things that you want the trust protector to do,12 perhaps there are things that are not. This is13 really a double-edged sword when you consider it14 from the perspective of Mr. and Mrs. Cryonic.15 Perhaps if you're going to give them the ability,16 them being the trust protector, to alter17 distributions, perhaps you want to do that within a18 limited class. Well, sure we can give it to19 children or lineal decedents, but you can't give it20 to beneficiaries outside of that. Yes, we want to21 give something to charities, but it has to be22 charities within a particular purpose. So as we23 figure out what terms we need to design the24 flexibility we need, we also want to make sure that we25 build in restrictions so you can't totally go off 661 base with the assets that are in this trust.2 Now one thing comes to mind when you're3 designing a trust like this, what happens if there4 is an impossibility, if it becomes apparent for5 whatever the reason, that Mr. and Mrs. Cryonic6 are not going to be revived? What happens to the7 assets then? Well, that's going to be built into8 the trust or at least it certainly should be.9 Well, what happens if the beneficiary that's named--10 if ultimately there is no taker, or doesn't exist11 anymore? Is the trust protector then going to have12 flexibility to say, okay, it was going to this13 charity, we are going to keep it consistent with14 what the goals are of a charity at that time. As I15 give this talk, and as I prepared for it, I find16 myself saying more what-ifs than this is what you17 want. And, you know, Martine started out the18 discussion by talking about the evolution of the19 law and I guess I shouldn't feel guilty that we20 have a lot of questions that need to be addressed,21 rather than answers. So this is part of the22 evolutionary process and I think that really sums23 up what the trust protector is about, it's designed24 to have that flexibility.25 Okay, so we talked about some of the general 671 things that a trust protector would do if you2 designed what's called a dynasty trust and this3 really is simply a dynasty trust. Things like4 changing the situs, the trustee, the distributions5 and so forth. Those are roles that would be6 traditionally performed now for a dynasty trust,7 and certainly as we designed one for Mr. and8 Mrs. Cryonic.9 But what about, are there additional roles that10 the trust protector would play particularly in view11 of biostasis in particular of view of revival?12 Well, you could make an argument that the role13 should even be enhanced because not only are you14 doing the traditional things that you would see in15 a dynasty trust, but you should have an additional16 role. You should have the role of monitoring what17 the technology is. What is the state-of-the-art, of18 nanotechnology? What is the state of the law? Are19 you sitting by and making sure that the trust is20 progressing as it should? Is the money is being21 managed properly, or should you be looking to see22 if the standard of care, for example, is being23 maintained? So what I'm suggesting is just because24 of the uncertainty of what we are talking about, it25 becomes more important perhaps, to have that 681 supervisory role, to have more a monitoring role.2 It's not the type of role that a typical3 institution would want or is equipped to do. It's4 a role that is more appropriate for the law firm to5 take over. So biostasis, trust protector, it can6 be even more of a role to play.7 How about biostasis and ALCOR? If we are8 assuming at this point that ALCOR is the likely9 candid for where Mr. and Mrs. Cryonic are10 preserved, should the trust protector not only be11 supervising and monitoring the state of the law, but12 ALCOR as well? Is ALCOR financially sound? Are13 they still offering the degree of care that's14 expected? Are there competitors now, to ALCOR?15 There may be one competitor to ALCOR now, 500 years16 from now, there may be 10. Are we able to provide a17 standard of care that's better somewhere else?18 DR. ROTHBLATT: Very good question.19 JOHN DEDON, ESQUIRE: Do Mr. and Mrs. Cryonic20 have the resources that would allow them to move21 from ALCOR to another caregiver? So who's going to22 make those decisions? The trustee may have a role,23 but it's really going to fall to the trust24 protector.25 Biostasis and litigation, what does that mean? 691 Well, maybe there would be a situation where trust2 funds should be used consistent with ALCOR in the3 best interests of Mr. and Mrs. Cryonic. I know4 ALCOR talks about a situation where they needed a5 court order to have a body released to their care6 from a hospital. So you could certainly see if you7 have a reluctant hospital that you would want to be8 able to use trust funds to allow them to come in as9 quickly as possible so that they can get to Mr. and10 Mrs. Cryonic in the time they need to create the11 best chance of revival. So there could be state12 problems where you need to ensure that the Arizona,13 or wherever the care may be given, is again14 consistent. So we may need to use the trust funds15 to support ALCOR, or independent of ALCOR, we could16 also be in a situation where we may need litigation17 against ALCOR. Maybe we do want to move Mr. and18 Mrs. Cryonic to a different caregiver. So who19 knows what the specifics may be, but if we have the20 flexibility built into a trust protector to use the21 funds for whatever purpose there is; we've covered22 it. We don't know what we've covered, but we know23 we've at least covered the possibilities.24 Now, if Mr. and Mrs. Cryonic are comfortable25 in empowering a trust protector with this type of 701 authority, there is no -- well, I can only speak2 for myself. I don't possibly have the knowledge to3 do all of these things, I need help. I need help4 from people that are sitting here in this room5 today. I may need help on a lobbying front to make6 sure that the licensing in the state or on the7 Federal level is appropriate, it's the scientific8 help. So the trust protector should be authorized9 to use funds within that trust to retain whatever10 assistance is necessary to again, see that biostasis,11 and ultimately revival is - you're giving the best12 chance to Mr. and Mrs. Cryonic during the13 biostasis, and for revival.14 Now Chris, who is our next speaker, is going to15 talk about cryogenic revival and the legal rights16 of Mr. and Mrs. Cryonic once they come into that,17 so I'm not going to touch much on that. However,18 what happens when we are coming to the point of19 biostasis where it now appears that we do have20 Mr. and Mrs. Cryonic who will become revived?21 Well, what does "revived" mean? Well, I think it22 means that they're certainly functional, they are23 able to live an independent life; but I don't think24 that's going to happen overnight, or over weeks or25 perhaps over months. There -- even though 711 technology wise we may be in a position to move them2 along, there is still going to be that period of3 time when there needs to be a comfort, where they4 can be self-sufficient. Who is going to make the5 decisions as to what degree of autonomy is given to6 Mr. and Mrs. Cryonic, coming out of revival? So I7 think the trust protector has a role to play in8 that as well, working with ALCOR, working with the9 trustee to see that that's a smooth transition.10 Because it would be logical once we do have full11 revival and independence, we may not need this12 trust anymore. Okay. If we then are able to have13 Mr. and Mrs. Cryonic, who are back into society and14 able to live a moral life, the trust can terminate.15 Or at least they have the option of terminating it.16 They can very well decide that, I need years to go17 by before I'm entirely comfortable, I want to18 continue to benefit from having the institutional19 trustee manage the assets for me. But at least20 they will have an option and certainly more control21 over their future. So at what point though, do you22 give them full control? And I think as I said, the23 trust protector can play a role in that as well.24 Now we talked about the importance of the25 trustee and having an institutional trustee, and 721 one of the reasons for that was the permanence.2 Well, you run into the issue of permanence as well3 with the trust protector. If you're going to4 choose a law firm or accounting firm, how do you5 know that they're going to be around forever? You6 need to build in some of those same safeguards. So7 what you are really doing is you may have an8 attorney or a CPA that you're working with9 currently, but you're really hiring a law firm.10 You're providing that if and when that attorney is11 not around, the next one is, the law firm is. You12 need to build in some institutional knowledge for13 the trust protector, just as you have for the14 institution. And it brings up a point, if you are15 going to build that knowledge from the start and on16 a continuum, when does the trust protector get17 involved? Does the trust protector get involved18 upon the death -- or the second death of Mr. and19 Mrs. Cryonic? Do they get involved now? The --20 really I think the rationale for involving them now21 would be while Mr. and Mrs. Cryonic are alive.22 Who knows about what their intent is or who knows23 more about the cryonic process than Mr. and24 Mrs. Cryonic? So by working with them now to do25 more than simply have a role in setting up the 731 trust, you're able to get a sense of what their2 intent is. You're able to start and define that3 monitoring role we talked about, that supervisory4 role. And by working with them now, hopefully,5 you're able to then institutionalize that within6 the law firm and pass it along so that it is7 preserved, and we are as close as we can to that8 intent when some of these things need to be acted9 upon in future years. So I apologize if some of10 this sounds like a Jerry Seinfeld show with, you11 know, what about that, what about this, but I think12 what we are doing is really asking questions13 or identifying issues, and we are trying to draft14 with that flexibility in mind, notwithstanding the15 fact that we have an irrevocable trust that the16 terms within certain limits are going to be abided17 by for long into the future.18 Compensation of trust protector. Well, there19 are a host of ways to take care of that. You could20 pay the trust protector an annual fee, a percent of21 assets under management, for example, that you22 would often see how a trustee gets paid, an23 institutional trustee. You could be paying an24 hourly rate. You could compensate the trust25 protector on just a retainer basis. A creative way 741 perhaps, of building into the compensation would be2 a kicker so that there is an additional amount paid3 if Mr. and Mrs. Cryonic or when Mr. and Mrs.4 Cryonic are revived, so you've created an incentive5 to monitor what ALCOR is doing, what the law is6 doing. You've created that incentive for the trust7 protector to get to the point where we all want to8 be, we want to get to the point where we have the9 revival.10 And then of course, if a lawyer is going to11 serve in this role, a lawyer is going to be12 concerned about liabilities, so you would have the13 typical liability and indemnification provisions14 for a trust protector that you would see for that15 institutional trustee.16 So that concludes my presentation. (clapping)17 DR. ROTHBLATT: That's great, John. We've got18 10 minutes for questions from the participants or19 from the telephone. Any questions first from the20 participants?21 BRUCE KLEIN: Are you signed up?22 JOHN DEDON, ESQUIRE: Am I signed up?23 BRUCE KLEIN: Are you signed up for Cryogenics?24 JOHN DEDON, ESQUIRE: Not yet.25 Yes, sir. 751 PETER VOSS: Me? Some of us --2 COURT REPORTER: State your name, please, sir.3 PETER VOSS: Oh, I'm Peter Voss.4 Some of us don't have that much confidence in5 the, you know, ongoing -- or in institutions like6 accounting firms or legal firms continuing on, or7 their policies continuing. They may not8 continue to support ALCOR or Cryogenics, or there may9 be political pressure or whatever that they're10 suddenly not -- they don't feel confident dealing11 with that. Now one of the alternatives that has12 been discussed in Cryogenics is like a life pact,13 which could be formalized into an institution that14 is set up of trust protectors, but people who are15 themselves cryogenists, setting up some kind of trust16 arrangement which would then be passed on the17 future cryogenists. What do you think of that idea18 as an alternative?19 JOHN DEDON, ESQUIRE: Well, I'm not aware of20 any legal reason why you couldn't do that, and I21 think to the extent you're able to focus on the22 trust protector role individuals or a group that is23 particularly attuned to the needs of the folks that24 will be at ALCOR, I think it's a wonderful idea. I25 guess maybe the devil's in the details so that it 761 would then be necessary to make sure we have a2 point person, we have a body that could act, that3 would be relied on and the bank would be able to4 look to. But I think to the extent we can have5 that expertise, it would work fine.6 PETER VOSS: Okay.7 JOHN DEDON, ESQUIRE: Yes.8 DR. ROTHBLATT: State your name.9 SUSAN FONSECA-KLEIN: Oh, I'm sorry. Susan10 Fonseca-Klein.11 DR. ROTHBLATT: Also speak loud so you can be12 heard on the conference phone.13 SUSAN FONSECA-KLEIN: Okay.14 That just in terms of my husband and I,15 and these discussions on being in biostasis and16 reviving, and you were talking about Mr. and17 Mrs. Cryonic, and I was thinking also what if only18 one can be revived? What if something happens to19 the other? Just also I guess to think about20 questions about in the trust, or in the -- 21 the trustee to start thinking about what would the22 other who survived want to do, or what if we can23 revive one but need to wait on the other, do you24 take your power of trust at that point? But more I25 was thinking if there was some catastrophe or 771 disaster, some issue, and/or some accident and2 you're both unconscious when you are put in3 biostasis. I guess I'm thinking about, you know,4 the -- your parents' accident, is you're -- but5 we'd both be unconscious, let's say we both signed6 up for Cryogenics, but something happens and I7 can't -- you know, have the process, then to8 already write in what you would want to happen at9 that point. I mean I know I wouldn't want to come10 back if Bruce is not there but I guess I was just11 thinking aloud.12 JOHN DEDON, ESQUIRE: Well, you could have --13 I used Mr. and Mrs. Cryonic for simplicity. You14 could certainly each have your own trust -- excuse15 me, with your own assets. You could provide that16 or you could have one trust, you could provide upon17 the revival of either/or if both of you are18 undergoing cryogenics. I think a lot of it comes19 down to the resources.20 SUSAN FONSECA-KLEIN: Right.21 JOHN DEDON, ESQUIRE: Because if you have the22 resources first to -- through the life insurance or23 whatever the means are, you can then take advantage24 of the process. The next step is, okay, well, I25 have the resources to be able to go to ALCOR, do I 781 now have resources to compliment that by being able2 to fund the trust and have additional funds there3 to compliment what ALCOR is already doing and to be4 able to use those resources for the types of things5 that we've discussed here? And now I think the6 third thing is, well, if I have the resources, do I7 have the resources to begin to fund it now?8 Because if I fund it now I have the advantage of9 establishing a track record and I have a comfort10 level now, that is set up. I get my arms around it,11 and I feel better on how it will work when we are,12 in fact, legally dead prior to revival.13 SUSAN FONSECA-KLEIN: Thank you.14 JOHN DEDON, ESQUIRE: Yes, ma'am.15 LOISE GOLD: Louise Gold.16 My question is: you continually hear that you17 can't take it with you. Are legal structures now18 in place that a trust can be established and the19 beneficiary will be these cryogenically suspended20 people that you don't have to have beneficiaries21 other than that person? Or do you have to put in a22 shell that says, okay, we have the beneficiaries or23 these other people and these other people,24 hopefully, in the future will care enough about the25 frozen, suspended person to bring them back? 791 JOHN DEDON, ESQUIRE: I think that's a2 wonderful question, and I don't have the bright line3 test that says, right now legally, we know for sure4 this can work. I do know for sure, we are setting5 up trusts with institutional trustees with this6 specifically in mind. That the funds and the7 property are held for, in perpetuity, if it needs to8 be in perpetuity until there is revival. Now has9 that been challenged? Not to my knowledge. I was10 involved in a situation where we worked with an11 institutional trustee, for exactly what we are12 proposing, to have the funds there, and upon13 revival the trust would terminate. And the trustee14 followed us almost until the end, and then the15 deeper it got into their trust department they16 said, you know, we can't do this. And because of17 that, we then were able to know to move forward and18 work with other institutional trustees. So, yes,19 it's being done. Perhaps what you could do, if you20 wanted to place your bet somewhat, because as I21 mentioned there is such a thing as a dynasty trust22 right now that is not subject to challenge, you23 could, within your trust, allow for the potential of24 distributions to lineal decedents. And if you25 capped it so that you know the bulk of the assets 801 would be available for your biostasis and for your2 revival, you've protected yourself that way. But3 by providing for lineal decedents, perhaps you've4 helped yourself, if there is ever a challenge.5 Because that's consistent -- entirely consistent6 with the dynasty trust that we see today.7 DR. ROTHBLATT: That's terrific, John. Thank8 you very much. Let's see if --9 Operator, are there any questions on this talk10 from anyone on the phones?11 OPERATOR: To the phone audience, if you would12 like to ask a question, please press star, 1 on13 your phone at this time.14 And it appears we have no questions at this15 time.16 DR. ROTHBLATT: Great.17 John, you're off the hook. Thank you for a18 terrific presentation. (clapping)

1 Ideal Cryonic Scenario, Then I Think There Is A

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