Science Fiction in Estate Planning

Could there ever be a legal expectation of a "use-by date" for humans?

We might scoff at such an outlandish notion, and relegate it to science-fiction, but should we be so quick to dismiss it entirely?

If Walt Disney wants to spend his own money to cryogenically freeze his body immediately after his death, in the hope that one day medical science will be able to cure him, then most people would probably shrug and say "So what - it doesn't affect me."

But what if a person with limited assets wanted to do this, with the effect that their entire deceased estate would be consumed by the expense. Would the law (driven by societal expectation) permit that person's children to over-rule the deceased's wishes, switch-off the freezer and spend the savings?

You might argue that the person was already dead, but does this automatically forfeit all human rights, and if so are we truly "dead" while there remains some hope for recovery?

Let's take it one step further: What if the patient has not died, but medical science permits his doctors to preserve his body in a form of coma indefinitely (again in the hope of benefitting from further advances in medical science in the future). If he is still "alive" then should he be permitted to spend his own money, regardless of any limit to the normal human life-span? Should there be any limits? Who decides? Should the rest of us be required to contribute towards the expense of his longevity (via Medicare & Centrelink, funded by our taxes)?

As a society we already impose limits upon the use of public resources like Medicare & Centrelink. Certain life-sustaining medications & experimental treatments are not funded by the government. We are compelled to prioritise our finite resources. We rank potential recipients of live organ donations according to a number of criteria including expected longevity of the recipient. All other things being equal, a very elderly patient with perhaps 1-2 years to live is unlikely to be prioritised ahead of a younger patient with a longer life expectancy.

We mandate minimum ages for many things including marriage, driving, consumption of tobacco & alcohol.

We continue to impose age-limits for compulsory retirement for some jobs, such as Judges.

We legally define when life begins in utero. We interfere with people's inheritances if they have received inadequate provision.

We impose age-limits on certain medical treatments. As a society we have said that women past a certain age should not enjoy public subsidy for certain reproductive IVF treatments.

Should we consider imposing any age-limit upon public subsidy of life-sustaining treatment? The ethics are almost too overwhelming to contemplate. Market forces clash head-on with social justice. And all the while, advances in medical science continue to give us the longest life-expectancies in human history. If this trend continues, then 70 will soon become "middle-aged" instead of representing the upper limit of "three score years and ten" proscribed in The Bible (Psalms 90:10).

What effect will this trend have upon the community's ability to pay for ever-increasing amounts of care, treatment, accommodation and social welfare? Could we ever get to the point of having to stop government funding for people over a certain age?

Should there be any sort of correlation between cost of treatment and anticipated benefit to the community?

What's your view - how old is too old?

Thirty years ago, many people might have said that 90 years old was long enough. Nowadays, people in their 90's represent one of the fastest-growing segments in Australian demographics, and they are unlikely to meekly submit to a reduction in their pension or health-care entitlements. Nor will the Baby-Boomers coming along behind them in record numbers - aged late 40's to 60's - with the prospect of even longer life expectancies.

Passion versus Profit. Idealists versus Realists. Heart versus Head.

The debate will continue forever - and it will be fiery.

(c) 2010 EstatePlanner Pty Ltd
Rod Genders is a senior Australian lawyer specialising in estate planning and accident compensation. His specialist law firm is one of the oldest and most respected in Australia. Rod is a prolific author and speaker. Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at http://www.estateplanners.net.au

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