by Saul Kent

During the last few weeks of his life, TV producer and writer Dick Jones — who was placed into suspension by Alcor in December, 1988 — went through hell. Dick, who had AIDS, was suffering from multiple infections that attacked his liver, his lungs, his mouth and — most tragically of all — his brain. He had two brain infections — toxoplasmosis and AIDS dementia — both of which were progressively damaging his brain.

Throughout those weeks, Dick was often confused, disoriented, and subject to hallucinations. Once he saw balloons in the room when there were none, another time he saw an old friend (who had long since died) enter the room, a third time he insisted it was "1888" when someone asked him what year it was.

Dick's declining mental condition was clear to everyone who visited him: his friends from Alcor, his friends from show business, his business partner Jenna McMahon, his sister Claire Martin, who had moved into his house, and an attorney named Barrett McInerney, who told Dick he was visiting him because he was his "friend."

In his final week, Dick was in a state of almost constant delirium, which made it increasingly difficult to carry on a rational conversation with him. During this period, there were 45 entries the hospital nursing notes dealing with his mental state, of which 44 stated that he was either "confused," "disoriented," otherwise mentally unstable, or that he was laboring for breath under an oxygen mask.

Dick's condition was especially disturbing to his friends from Alcor because we knew that — in addition to the pain and indignity of losing his life — there was the realization that he was slowly losing his ability to control his own life. We felt for him because he was one of us. Because we knew — more than anyone else in his life — how much passion he had for life and how horrible it was to be losing it.

If losing his life wasn't enough of an ordeal for Dick, he had to suffer the final indignity when his family took advantage of his condition by stealing millions of dollars of his hard-earned money from him. They did so by inducing him to sign four legal documents, including a new Will and an amended 46-page Trust, only 56 hours before he was pronounced clinically dead at the hospital prior to his suspension.

These new documents made Jenna McMahon (instead of Saul Kent) responsible for his medical treatment (including his cryonic suspension) as well as the administration of his estate. They also provided for the distribution of a major portion of his assets to his sister Claire and his 10 nephews and nieces. The new will and trust also radically changed an estate plan that Dick had spent considerable time, money, and effort creating when he was strong, healthy, and lucid in order to reward relatives whom Dick had little contact with, or use for, when he was in his right mind.

How did this happen? It wasn't easy. It took a greedy sister, a cooperative partner, an unethical attorney, and a great deal of hard work. But when it was all over, Dick (and Alcor) were the losers and Dick's relatives had money they didn't even know existed before Dick began to suffer from brain damage.

When Dick was healthy and lucid, he had created a comprehensive estate plan that included two en- tirely separate trusts. In one trust, he left to his family everything left to him by his mother (about $200,000.00). In the other trust, he left every asset he had earned throughout his life (about $5 million) to Alcor, which was also entrusted with his most valuable asset, Dick himself. Alcor had not only agreed to suspend Dick and maintain him in cryonic suspension, but was also committed to doing research to improve Dick's chances of reanimation and, eventually, to attempt to restore him to life and, if successful, to help him re-enter society in a responsible manner.

Dick chose to give his money to Alcor because he understood that the strength and financial stability of Alcor — as well as the extent to which it could conduct research — would be critical factors in determining his prospects for life in the future. He knew that any money he gave to Alcor would be his money because it would help Alcor do the things that had to be done to bring him back to life.

He chose not to give any of his money to his family because he knew they didn't need it, because he wasn't close to any of them, and because he knew that money given to his family would do him no good at all!

Claire Martin had no idea that her brother was a wealthy man before she arrived to see him (from the East coast) in late October, 1988. She knew very little about him. She didn't know he had AIDS. She barely knew Jenna, his business partner of 27 years, or any of his friends. And she knew nothing at all about cryonics, except that Dick had once told her ("eons ago") that he wanted to be frozen after he died.

Dick had moved to Hollywood decades ago to make it in show business. He had been born in San Francisco as Richard Clair Jones, but had dropped his family name (Jones), and become Dick Clair, when he entered show business, and had created a new and very private world for himself. His sister Claire wasn't part of that world.

In the last 10 years of his life, in fact, Dick and Claire had only gotten together 4 or 5 times, usually for family events like weddings and funerals. When Dick had been diagnosed with AIDS in 1986, he hadn't told Claire anything, except that he had been in the hospital for "a few days." Claire hadn't known that Dick had almost died of pneumocystis pneumonia because Dick didn't want her to know. Dick didn't want Claire to know anything about his private life until he called her in late October. . . after he had already begun to suffer from brain damage.

As soon as Claire arrived, she showed tremendous interest in how much money Dick had and what he planned to do with it. When she found out how much he had, she decided to stay "for a while" and moved into Dick's house "to care for him." Except for a brief trip home during the Thanksgiving holidays, Claire stayed as close as possible to Dick until it was time to suspend him.

One of the first things out of her mouth was a request from Dick for an extra $50,000.00 from his estate "for her children." Dick agreed to this, even though he could barely remember the names of the children. (When one of them came to visit Dick, they had almost nothing to say to each other.) Since I was executor of Dick's estate, he asked me to arrange to give Claire the $50,000 in "any way I thought best."

Since I had no way of knowing how much more of Dick's money Claire would ask for or try to get by other means, I had an attorney (David Epstein) prepare an agreement between Claire and Alcor, in which she (or her children) would receive $50,000 in return for a guarantee that she (and they) would forego any further claims to Dick's money.

Claire's reaction to this proposed agreement was to hire an attorney and begin her plot to get more of Dick's money.

Claire made friends with everyone who came to visit Dick except, of course, with the Alcor people, who she knew were her enemies. Her most fruitful friendship proved to be with Dick's partner Jenna McMahon, who had always felt she should honor Dick's wish to be frozen, but didn't feel it was right for Dick to leave all his money to Alcor. Since Jenna had the same sources of income as Dick, she was able to reveal to Claire exactly how much Dick had and where it was coming from. She also introduced Claire to attorney Barrett McInerney, a friendly Irishman who had represented Dick and Jenna in a legal action against TV producer Joe Hamilton, the ex-husband of Carol Burnett, whose show Dick and Jenna had written for (and received three Emmys for) in the 1970s.

Claire suggested that Jenna and Barrett be the ones to "persuade" Dick to give his family more money because they could do it better and because she didn't feel "comfortable" talking to Dick about money. They agreed.

First Jenna told Dick that he was much wealthier than he thought he was. She told him he was going to be extremely wealthy because two TV series (currently on the air) that they had worked on — "Mama's Family" and "It's A Living" — were going to be worth many millions in the future. What she didn't tell him was that neither series would be worth a dime if they didn't stay on TV long enough to invite second syndication.

When Dick was healthy and lucid, he had definitely known how much money he had, as well about the potential value of both of these shows. But now he was slipping in and out of reality and no longer had a firm grip on the worth of his estate. I soon found this out personally.

Early in November, I received a phone call from Dick in which he said he was thinking about giving his sister Claire "a million dollars." I told him I would speak to him later that day when Jerry Leaf (vice-president of Alcor) and I would be visiting him to help him get home safely from the hospital. (Dick was sent home twice during his last three months, only to be rushed back to the hospital a few days later when his condition worsened.)

When Jerry and I spoke to Dick at his home that evening, he told us he was thinking of giving Claire "a million dollars" because Jenna had told him that he was worth so much that giving Claire a million would be a "drop in the bucket." When I asked him how much Jenna had said he was worth, he replied: "A hundred million dollars." When I said again, "How much?" he said he wasn't sure what figure Jenna had used: "It was either, $10 million, $20 million, or $100 million," he said, looking puzzled.

Jerry and I proceeded to explain to Dick how much he was actually worth. (His manager estimated his total of current value and future income from residuals at around $5 million.) We also reminded him that — when he was in good shape — he had wanted all the money he had earned to go to Alcor. He responded by saying he would "talk to Claire about it." Later, when I was out, he told Claire he would not be leaving her "a million dollars." Afterwards Claire told Jerry that she was upset with "all this talk about money" and said she was going to accept the $50,000.

But she didn't. Instead, she and Jenna met with McInerney to search for a new angle. Since Dick was still too lucid to "resist" Saul Kent and Alcor, they decided to wait until Dick's mental condition declined some more, and then to take steps to keep me and any other Alcor people from having any further access to Dick.

Their next move was to try to get Jenna appointed as Dick's Conservator so that she could gain control over both his health care and his finances. The only problem was that Dick had given me Power of Attorney over his affairs, all of which were being taken care of. I was dealing with his doctor and the hospital on a daily basis, and an accountant, whom Dick had hired a year earlier, was paying all his bills.

Their solution was to commit perjury behind our backs. Just before Thanksgiving, they went before Judge Thomas Murphy in Burbank Superior Court to file an application to appoint Jenna "Temporary Conservator" over Dick's affairs. They swore (under oath) to the judge, in print and in person, that Dick was mentally incompetent, that his affairs were not being cared for, and that it was imperative to have his "good friend" Jenna assume control over all his affairs. They included a declaration from

Dick (with a virtually non-existent signature) that he wanted Jenna as his Conservator — and a declaration from Dr. Anthony Scarsella (Dick's physician) that Dick was incompetent. They also mentioned that Jenna intended to modify Dick's estate plan to give more money to his "relatives." Not knowing any bet- ter, the judge appointed Jenna Temporary Conservator and set a hearing date to determine whether Jenna should be appointed Permanent Conservator. With the dirty deed done, Claire went home to spend Thanksgiving with her family, while Jenna and Barrett moved forward.

I finally heard about the Conservatorship action the day after the Thanksgiving holidays, when I received notice by mail of the hearing. I immediately went to see Dick (who was back in the hospital) to find out if he really wanted Jenna to be his Conservator. I asked Jerry Leaf and Carlos Mondragon (president of Alcor) to accompany me.

When we arrived at the hospital that evening, several of Dick's "friends" (not including Jenna and Barrett) were at his side. I asked if they (and a nurse I had hired to stay with Dick) would step outside so that we could speak with Dick privately. They agreed to do so. I had a tape recorder with me.

Soon after we entered the room, it became apparent that Dick's mental condition was so poor that it was impossible to conduct a rational conversation with him.

When I asked him if he wanted Jenna to be his Conservator, he answered:

"Yes.""

When I asked him if he wanted me to remain in control of his affairs, he answered:

"Yes," directly contradicting his previous answer.

The final and conclusive sign of his incompetence was that he was constantly trying to get up to urinate, despite the fact that he had a urinary catheter (which had just been changed before we entered the room) for days for just that purpose, and that he kept on trying to get up even after we told him about the catheter.

When we left, after about 15 minutes, Dick was smiling and happy, but we were not.

Our dismay reached new heights on the following day, when I was informed (by my attorney) that Jenna McMahon and Barrett McInerney were taking us to court on an emergency (ex parte) basis that very day in an attempt to get a court order to stop me, or any Alcor member, from ever seeing Dick again — except in the presence of his "Temporary Conservator" Jenna McMahon.

When we saw the papers they were filing, it became clear that they would stop at nothing to steal Dick's money. In the summary of "facts" they intended to present to the court, they stated that we had "muscled" our way past hospital officials and subjected Dick to a "tiresome, emotional, draining confrontation" and that, subsequent to our visit, he became "violently ill, suffered a bout of vomiting, and his condition remained seriously deteriorated for the next forty-eight (48) hours."

After failing to show up in court for two straight days, they decided not to pursue this court order. I later found out that the reason they had canceled in court was that they were unable to persuade Dr. Scarsella to sign a declaration (in which he would have perjured himself) to back up their charges.

In the meantime, they discovered that — since the law forbids a Conservator from changing the estate plan of the Conservatee — they wouldn't be able to use Jenna to divert Dick's money to his relatives. This made it necessary for them to draw up a new Will and Trust for Dick to sign. They asked Claire's attorneys to work on these documents (a clear-cut conflict of interest), which they proceeded to do at a furious pace, while Jenna and McInerney took turns visiting Dick to find out "how he wanted to change his estate plan."

The only problem was that, in their scheming to implement this new plan, they decided not to cancel the other one. So the Conservatorship proceedings continued and, on December 7, about four days before Dick succumbed to AIDS, Chal Peterson, an investigator of the Los Angeles Probate Court paid an unannounced visit to Dick to determine if he was really incompetent.

After spending about an hour with Dick and asking him a series of questions, to which Dick responded inappropriately (in most cases), the investigator concluded that Dick was, indeed, incompetent and later submitted a report in which he testified that Dick was "confused and disoriented," that he "did not appear to fully comprehend his right to counsel," and that he "did not appear capable of completing an affidavit of voter registration."

But it didn't matter whether Dick was competent enough to vote. Only whether he could sign a 46 page Trust and other legal documents. And so the papers were secretly prepared and the plans made to get Dick to sign, while using the Conservatorship action to misdirect our attention and keep us from discovering their true intent.

Yet in doing so, they created a problem for themselves. I was opposing their attempt to get Jenna appointed as Dick's Conservator and so we demanded that Jenna and Claire be made available for depositions on Friday, December 9.

By now, McInerney was eagerly anticipating having the new legal papers in hand and heading for the hospital to secure Dick's signature, but was afraid that Jenna would "spill the beans" at her deposition. We thus had to get two court orders to force McInerney to let Jenna testify under oath. But it didn't really matter. When the question that would have revealed their plot to get Dick to sign the documents was asked, McInerney refused to let Jenna answer it.

And so that evening — after the depositions were over — Jenna and Barrett visited Dick at the hospital. They invited several of Dick's "friends"" and a notary public to witness the event. In 45 minutes, it was all over. Dick had signed away almost half of his estate and had given Jenna total control over his fate. The very next day Dick became semi- comatose. The day after he lapsed into a coma. It was time for cryonics.

That weekend we focused on the task at hand, making sure that Dick would be suspended under the best possible conditions. It wasn't until later that week that McInerney revealed (in a letter) that he had secretly taken the newly signed Will and Trust into probate court to establish Jenna as Executor and Trustee of Dick's estate before I could oppose it in any way.

Once I found out what had happened, I immediately took vigorous legal action to attempt to invalidate the new documents. What followed was a long, bitter, and expensive struggle over the next few months that ended quite cruelly in the month of April.

During that period, we were able to put together a compelling picture of how the plot to steal Dick's money had been accomplished, and of the lying and deception that led to its success. We were also able to gather convincing evidence from Dick's medical records, and the testimony of Dick's doctors, the court investigator, and other doctors who had examined the medical record, that Dick was mentally incompetent on the day he signed the new documents.

Jenna, on the other hand, had a very different kind of evidence — six eye-witnesses to the actual signing (mostly Dick's "friends") who swore under oath that Dick was entirely lucid and understood the documents completely when he signed them. I, of course, had no witnesses to the signing because neither I nor any other Alcor member had been invited, but a number of us testified that Dick was in no condition to execute legal documents on December 9, 1988.

The Judge handling the case was Miriam Vogel of the California Superior Court in downtown L.A. When we first entered her courtroom, we had high hopes that we would win the case, despite the fact that the other side had the only eye-witnesses to the signing. After all, the only reason that was the case was that they had conspired to deceive us, and we had solid evidence of the nature of their conspiracy.

On the other hand, the medical evidence that Dick was mentally incompetent, as reflected by his diagnosed condition and the notes taken by the hospital nurses, was strong and compelling. The only "fly in the ointment" was that Dick's physician, Dr. Scarsella, had been inconsistent in his testimony. While Dick was still alive, everything Dr. Scarsella said and wrote about his condition fully supported our position. Three days after Dick died, we obtained a sworn declaration from Dr. Scarsella that on Friday, December 9, the day Dick signed the new documents, he was "in a confused condition," that he made "inappropriate responses to very simple questions," that he "was not able to make any rational decision," and was "in no condition to comprehend any kind of legal document."

But a few weeks later, Dr. Scarsella executed another sworn declaration (at the request of the other side), in which he stated that he had no knowledge of Dick's mental condition at the actual time of the signing and could, therefore, not render an opinion about Dick's mental condition at that specific time. Several months later, when he was examined under oath in a deposition, Scarsella had developed total amnesia about Dick's condition in his dying days and offered no opinion whatever concerning Dick's mental state at the time.

We also had two strong legal arguments to support our position. The first is a law (Probate Code 1872, supported by Civil Code 40) which expressly states that "the appointment of a conservator of the estate is an adjudication that the conservatee lacks the legal capacity to enter into or make any transaction that binds or obligates the conservatorship estate." This language is unequivocal and establishes as a matter of law that Dick did not have the capacity to amend either of his trusts on the night of December 9.

While it is true that Jenna was only Temporary Conservator on December 9 (the law does not state whether it is meant to cover temporary conservators), a look at the legislative history behind this law (which we provided to the court) indicates that the intent of the legislature was to protect a mentally incompetent person from being taken advantage of by a judicially appointed conservator.

The other side argued that P.C. 1872 should not apply to Jenna because she was appointed Temporary Conservator quickly, without benefit of a full hearing. But we argued that the emergency appointment of Jenna as Temporary Conservator made it even more necessary to protect Dick against any actions taken by her because the only reason to appoint a conservator on an emergency basis is if the patient is absolutely incapable of handling his own affairs. That Dick was in such a condition was testified to by Jenna, McInerney, and Dr. Scarsella, and later confirmed by the court investigator. Either Jenna, McInerney, and Dr. Scarsella had lied under oath when they sought to make Jenna Conservator, or Dick's mental condition had improved markedly three weeks later when he signed the new documents — a premise that is totally contradicted by the medical record as well as by the fact that Dick died 56 hours after the signing.

The second legal issue was the well-established principal of equitable estoppel as expressed in Evidence Code 623: "whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." This means that if Jenna (and her counsel) deliberately misled me (and my counsel) in any way, she would be prohibited from taking advantage of her deception.

We presented incontrovertible evidence that Jenna and McInerney had deceived us. First, by continuing the Conservatorship action (with the stated intent that Jenna was going to seek permission from the court to change Dick's estate plan) after deciding that they would attempt to get Dick to change his own estate plan. Their deception in this matter was underscored by the fact that — on the very day they got Dick to sign the new documents — both Jenna and McInerney told me and David Epstein that they intended to pursue the Conservatorship action and concealed their plans to get Dick to sign new documents. Moreover, at the exact same time that Dick (under the urging of McInerney) was signing the documents, another of Jenna's attorneys (from the same office) was actually delivering copies of the exact same documents to David Epstein (at his home) under the guise that Jenna was going to seek permission to execute them at the upcoming Conservatorship hearing.

When we came into court on April 11, 1989, we were confident of our position. We felt that we had the law on our side and that — when the facts of the case were fully explored (at trial) — we would be able to prove (to anyone's satisfaction) that there had been a deliberate conspiracy to steal Dick's money on the part of Claire Martin, Jenna McMahon, and Barrett McInerney. Our confidence was bolstered by our feelings that the replies to our position by Claire and Jenna's attorneys were inadequate.

What we hadn't counted on was the extreme bias of Judge Vogel, who casually dismissed all our legal arguments as having "no merit," without refuting them in any way, and gave little credence to the objective evidence (as reflected by the hospital's medical records) that Dick was mentally incompetent at the signing. We sat in the courtroom and listened incredulously as Judge Vogel talked about how impressed she was with Jenna's eye-witnesses (even though we had blown holes in their testimony) and how unimpressed she was with the evidence and legal arguments that we had presented.

The final straw in our rhapsody of discontent came when Judge Vogel said she was more "persuaded" by the testimony presented by Jenna's expert consultants than by my experts. This absurd contention on her part was more than evidence of bias, it was right out of Alice In Wonderland.

I had presented testimony by three medical doctors with impeccable credentials. One was Dr. Michael Gottlieb, the physician who first described AIDS as a new disease in 1981 and who had published 60 articles in the medical literature on the treatment of AIDS. The second was Dr. Michael E. Gold, a neurologist who had evaluated more than 300 patients with AIDS dementia and who is a board-certified expert in the interpretation of magnetic resonance imaging scans, the scans taken in the hospital to evaluate Dick's brain. And the third was Dr. Saul Faerstein, a prominent psychiatrist with expertise in AIDS.

In contrast, Jenna presented testimony by only one medical doctor, who had not published at all in the medical literature or distinguished himself in any other way, and two Ph.D.s with no medical training.

Even more ludicrous was Judge Vogel's statement that the reason she was more persuaded by Jenna's medical experts than by my experts was that they based their evaluation on the testimony of the eye-witnesses, while my experts relied strictly on the medical records. My experts had presented their testimony on the assumption that they were evaluating Dick's medical record to attempt to resolve the conflicting testimony of the two groups of lay witnesses. But I guess real medical testimony based solely upon objective criteria was not as persuasive (to Judge Vogel) as regurgitation of the testimony of the lay witnesses on one side of the dispute.

Judge Vogel's extreme bias in the case forced my hand (as she intended it to). She made it clear that she was going to rule against me, regardless of the evidence, while, at the same time, she made no actual decisions (on April 11) that could be appealed. The only options I had left were a long and expensive trial (under Judge Vogel) that I was certain to lose, followed by a long and expensive appeal (on the legal issues) that I would probably lose — or capitulation to the other side.

I decided to give up and drop out of the dispute. The Alcor attorneys took over and negotiated a settlement (based upon the new Will and Trust) with the attorneys for Jenna McMahon and Claire Martin. The terms of this agreement restored to Alcor full control over Dick's suspended body and gave Alcor Dick's house, his remaining liquid assets, and half of the residuals from his TV shows (the major part of his estate).

Under the new Will and Trust, Alcor will be getting a good deal of money over the next few years; more than the organization has ever had before, but far less than it would have received if Dick Jones' true wishes had been honored.

The primary consequence of this case, however, is not lost money, but lost trust in the outside world. We've always known about the threat of relatives interfering with our wishes, but it took a real case to make this threat compelling. The lesson to be learned from this case is not only that relatives may challenge your plans for cryonic suspension, but that they (and their attorneys) are likely to use every dirty trick in the book to get their way. Another lesson is that we cannot rely on the legal system to protect us. Just one biased judge has the ability to stop us, no matter how well we present our case in court.

We must learn from what happened to Dick Clair. We must never allow ourselves to become as vulnerable as Dick was in his last days. We must realize that it isn't just our money at stake, but our lives as well. None of Dick's relatives challenged his desire to be frozen; all they wanted was his money. But that won't always be the case. If we don't protect ourselves better, we might not even be frozen. Here are concrete steps you can take to protect yourself against cryonics assault:

1. Hire a doctor you can rely on. One of the problems that Dick had was that Dr. Scarsella had very little backbone under pressure. His only concern was to protect himself, not to serve Dick. The doctor you hire doesn't have to believe in cryonics, but he or she must be honorable and have the kind of strength of character required in a crisis.

2. Make a videotape when you're healthy and lucid (and update it every year) to make your wishes known. In making this tape, don't just talk about what you want, but also about what you don't want. If there's a relative who you think may give you trouble, make sure to state that you do not want this person to have control over your affairs, regardless of the circumstances. A videotape is better evidence than a written document of the fact that you were healthy and lucid when you expressed your wishes.

3. Tell your relatives directly (to their faces) that you intend to be frozen and exactly what you intend to do with your money and tell them not to interfere with your plans. Dick Jones never was as explicit as he should have been about his wishes with Jenna McMahon and Claire Martin.

4. If you execute a Trust to direct the distribution of your assets, make it irrevocable while you are still healthy and lucid. Dick's trust was not irrevocable and it cost him. If you know you're suffering from a terminal disease (as Dick did), this could be crucial.

5. If you don't want to make your trust irrevocable, give as much of your money as you can to Alcor before you lose your health and lucidity.