A New Fiduciary for Our Personal “Items”?

We have heard and read a lot about digital assets, and the “right to inherit” them, or at least have access to them when a relative dies (when was the last time you took a roll of film to the drugstore to get the pictures developed?). Thus the idea of providing a “digital fiduciary” to have access to your digital life. The Uniform Law Commissioners has a committee working on an act dealing with fiduciary access to digital assets. The committee draft and memos are available here.

Then I read the November 9, 2013 column by Joyce Wadler (I have mentioned before I love her columns) for the New York Times’ Booming.  She was writing about how one collects “personal” mementoes over time and for various reasons never parts with them.  She goes on to write about how one may not want family members to find those items after death (and let’s just say it is another hysterical column.  I’m not going to mention anything more specific about the items–read it for yourself) but I do want to quote a portion:

I know no one likes to think about death. But just as the responsible person designates someone to make medical decisions in case he or she is incapacitated, we should all have designated, let’s call them Eradicators, to come over and clean the house after we expire. Remember Marilyn Monroe. Not that I can prove anything, just saying. Your Eradicator should be given house keys, a list of items to be destroyed and their hiding places — you don’t want to be in intensive care screaming, “Back of the sock drawer!” They’ll just increase your meds.       

The truly considerate person will dispose of potentially humiliating or harmful items the moment he gets really sick, like a married man I knew who gave his love letters from the other woman to a male friend before he went into the hospital. Then he got better and got the love letters back. Then he died, which was a big mistake on his part, though I hear it made for an interesting moment at the memorial when the widow spotted the other woman. Think of this as a cautionary tale. Horrible things can happen when you leave romantic mementos around the house.

So that got me wondering, is Ms. Waddell right?  Are we moving to a time when we need a different kind of fiduciary-one who is empowered as soon as we die, but before our personal representative is appointed by the court, to rush in and clean up the evidence of our other life that we don’t want our family members to know about? I think of this “Eradicator” as a cleanup fiduciary. But given family dynamics, can you see the rush…whether to the house to start “destroying the evidence” or to the courthouse to prevent the cleanup fiduciary from doing so by a sibling who finds value in mom’s old macaroni art? (hypothetically and no disrespect to macaroni art). Can I empower my health care agent, before she “pulls the plug” to do “clean-up duty” and  pull out of my house certain items my family should never find?

But then again, how do we know what will have value to families or others after our deaths? Who among us hasn’t collected and discarded things as kids that if we had today, would be worth a lot of money or hold great sentimental value? 

So one of the things perhaps we need to include as part of experiential or simulation learning for our students is to help them understand that one person’s treasure is another person’s embarrassing personal item. Perhaps students need to learn to advise clients that when they die, their real and virtual lives quite likely will be open to scrutiny and if there are items, for whatever reason, they don’t want to be discovered by certain relatives, they might want to look at “recycling” now, or at least find a trusted individual to be the custodian of these items.

(And thanks to Professor Beyer for his feedback on this—I hope his blog is on  your must-read list!)