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The Chambre des notaires abdicates management of digital identities and assets

Observations

Last week I reported that my notary declared that she was unable to help me manage the components of my digital of identities and assets in case of death (will) or inability (mandate).

I also described calling the legal information service of the Chambre des notaires du Québec (notaries’ professional corporation). The answering notary found my questions quite relevant and about pressing issues. However, she told me that the corporation had no available guide, checklist, standard clauses for will or mandate in case of incapacity, nor specific training to its members about these issues.

After publishing this article, I wrote to Jean Lambert, president of the Chambre des notaires (CNQ). I briefly described my situation and actions I took before asking the following questions:

Are there any guides, checklists, model provisions or tips on these topics?

If not, what are you waiting for to help us to live and die peacefully in this twenty-first century?

Response from the Chambre des notaires

In the absence of Mr. Lambert, it was Mr. Antonin Fortin, director of Communications and assistant to the president who responded:

We are talking about a complex, relatively new and evolving phenomenon. In addition, the CNQ cannot substitute itself to the legislator and “create” law in this matter. To our knowledge, there is no guide to meet your expectations.

(My translation)

That the Chambre des notaires declares not having or be able to recommend a guide is OK. The question is indeed relatively new.

However, to claim that this is a complex phenomenon that requires a law reform reveals some profound misunderstanding or some abdication of social and professional responsibilities. Indeed, as I suggested in my email response:

Allow me some radical disagreement with you: it is in no way about “creating” new law whatsoever.

There is no need for this. I do not see what role legislatures could play here.

Indeed, the need is primarily to provide guidance and useful tools for those seeking to put their affairs in order and organize the sequence of things to do in case of death or incapacity as well as for those who will act as executors or agents. Nothing that requires any law reform. The law is indifferent to the fact that the objects in question changed from macroscopic to microscopic formats or have exploded in numbers.

Communicating instructions through time

In other words, the issue here is not one of legal standards or implementation thereof. It is about effective strategy for communication of instructions over time. A skill that notaries are supposed to be the masters of.

Take a familiar example relating to a form of information that is one of the oldest and most abstract ever invented by mankind: money. At the time when I am writing my will, I could own a small money nest-egg and be without children. But in three years, I might be a multimillionaire and father of a child. In five years, be bankrupt and with three children. In twenty-five years, have restored a modest but comfortable financial cushion, having experienced the death of one of my children, but welcomed two grand-children in the family. In fact, when I write my will, I know nothing of the future. Nor my legal advisor. How to write instructions as I do not know what will be at my death the amount of money which I will own, nor the number of my children or grandchildren, if any.

The typical solution is to write a statement like, “this portion of my financial assets will go in equal amounts to each of my children and grandchildren living at time of my death.” So regardless of the amount available and the number of heirs the day I die, it will:

  • give entirely the sole heir of this class, if there is one;
  • divided into two, if there are two;
  • divided into three, if there are three, and
  • so on.

This type of instruction expresses in words a first degree algebraic equation with two unknowns:

Amount given to each heir of the class = Total money determined at time of death / Number of heirs of this category at time of death.

A = T / N

 By a similar method, it is possible to establish all kinds of conditions like : “if a child or grandchild is under 25 years at the time of my death, that heir will have access to a third of the amount prior 18 years old, a second third at 18, and the last third at 25 years old.”

If notaries and lawyers are experts in effective communication of instructions through time about largely unpredictable situations, why can they not use or transpose this expertise to digital identities and assets? Not that this issue has no potentially problematic legal dimensions. But within current law, it is already possible to effectively communicate instructions to the executors of our wills, to the liquidators of our succession or our agents in case of incapacity.

“Multilayered” proposed solution

The solution I proposed in my previous text for managing digital identities and assets distinguishes the general instructions writable in a will, from the information and instructions that may change very frequently. A third kind of document links together the two previous one. A multilayered solution. Or a Russian dolls type of solution, if you prefer that metaphor.

The upper layer consists of very general instructions that signal one’s desire to ensure management of components of digital identity, digital assets and intellectual property, by whom, and to achieve which objectives. Such instructions may be found in a will, a mandate in case of incapacity or a business succession plan.

The lower layer is one or more permanent inventories of these items as well as information and specific instructions for each. One can keep the inventory in secure files (passwords, encryption keys, secret locations) so it can be accessed and updated at any time.

The middle layer is a “sealed” document which specifies where the permanent inventories are, and how to access them, who is responsible for implementing which types of instructions regarding what types of items. This document is kept by a trusted third party that will allow access only at predetermined times (death, incapacity, serious incidents jeopardizing the continuation of business). Its content can be changed from time to time without having to change the instructions of the documents forming the upper layer.

This is a way of devising the communication of a set of instructions capable of supporting rapid changes in the elements to be managed, in practices, in techniques, in personal and professional situations, and even in the law itself. In short, a solution that can be implemented immediately.

Up-date: The Chambre des notaires corrects its position on the management of digital identities and assets



  1. Je me permets de réagir à votre article en soulignant qu’un de mes collègues notaire a déjà rédigé un article à ce sujet dans le journal de la Chambre des notaires, Entracte, en mars 2010 intitulé « Qu’advient-il de notre “patrimoine virtuel” à notre décès ? ». Vous pouvez m’envoyer un courriel et il me fera plaisir de vous le faire parvenir.

    Bonne journée!
    Liette

    • Pierrot Péladeau says:

      Merci.
      Monsieur Fortin m’avait fait parvenir cet article.
      Dans une conversation avec lui aujourd’hui (voir la mise à jour), il m’a signalé que Me Salvas venait d’être mandaté par la Chambre pour élaborer des solutions (notamment à partir de mes propres propositions).

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