Where There's a Will, There's a Way: Creating a Document Directing Deaccessioning Upon a NonProfit's Demise
I, @dduquette, resident of Steemit, being of sound mind, not acting under duress or undue influence, and fully understanding the nature and extent of all my property and of this disposition thereof, do hereby make, publish, and declare this to be a possible model of a will and testament for cultural institutions to follow.
That’s right, dear reader, today I will be presenting you with a kind of last will and testament for cultural institutions. As I have written once or twice before, nonprofits, like people, do not like acknowledging their mortality. At the same time, this refusal to acknowledge the inevitable end that all things meet, can cause issues when that time comes. So with that in mind, consider this a theoretical exercise in how cultural nonprofits can manage deaccessions through the creation of a “will,” which can provide guidelines for the institution should they find their mission has changed, or if, despite their best efforts, they have fallen on hard times and are incapable of bouncing back as they once could.
We, (the executive director, CEO, and Board of Directors), of (name of institution), being of sound mind, not acting under duress or undue influence, and fully understanding the nature and extent of our organization's property and of this disposition thereof, do hereby make, publish, and declare this to be our organization's last will and testament, and hereby revoke any and all other wills and codicils heretofore made by us.
Inventory shall be taken immediately to determine the nature of each collection’s accession. Upon determining the intent behind their donation or sale to the institution, plans shall be enacted for proper deaccessioning to: (a) Local institutions. These shall be given priority so that these collections can continue benefiting the local community; (b) Non-local institutions. If no local organization expresses interest, collections can be gifted/sold to institutions further afield.
To determine what can be sold, and what ought to be gifted, as part of the inventory, we must determine the intent behind our acquisition of said collections. The following are examples of what can be done based on several previous situations in other institutions: (a) If a collection was gifted/sold to directly benefit this community, it must be gifted or sold (and if sold, sold at a reasonable price) to another local organization; (b)Collections acquired through purchase may be sold to another organization; (c) Collections acquired through gift should be deaccessioned through regifting to another organization - (i) If the original donator still lives, or if there is an estate that can be contacted, permissions may be sought out for deaccession through sale.
Collections MUST be given/sold in the complete state in which they are currently housed. To dissolve them and distribute them would strip them of context, meaning, and ease of access for those researchers and scholars that would use them. Under NO circumstances are they to be sold part and parcel to various organizations.
These rules are to be applied in the event of a seismic shift in mission as well as in the untimely event of this institution’s death. They are not to be deviated from.
Understand that I do not write this post flippantly, but with the utmost sincerity. Creating this kind of document is not easy for a living person, let alone for the people it would take to do so for a nonprofit. It would likely be considerably more difficult for an executive director, both because it references the potentially finite nature of their position and because working something like this out to the agreement of a Board of Directors could be a herculean task. Additionally, it is worth pointing out that additional parallel "end of life" documents could provide beneficial models for nonprofits. Consider also advance directives, living wills, and even do not resuscitate orders! None of these are meant to be easy questions. Cultural nonprofits have a responsibility to themselves and their constituency to consider what should be done with their collections if they appear headed for final closure, or even if their mission changes and a deaccessioning is called for.
What do you think, dear reader? Are there points that I overlooked in creating this pseudo-legal document? What would you want included in a document like this?
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Additional Resources:
James N. Green, "The Franklin Institute Sale," Annual Report of The Library Company of Philadelphia for 1987, pp. 7-15.
Derek Fincham, “Deaccession of art from the public trust,” Art, Antiquity & Law, 16.2 (July 2011), pp. 93-129.
Nina Simon, “Instead of Selling Objects, Build Public Trust,” Museum 2.0, January 8, 2018. http://museumtwo.blogspot.com/2018/01/instead-of-selling-objects-build-public.html. (Accessed 4/2/18).
Electronic Forms LLC, "Free Last Will and Testament Templates - a "Will"," eForms, 2018. https://eforms.com/wills/. (Accessed, 4/2/18).
The Nature Conservancy, "Pass on Your Values: Protect the Lands and Waters You Love Through a Bequest," All Giving Options, 2018. https://www.nature.org/gift-planning/all-giving-options/gifts-through-your-will/bequest-a-simple-gift.xml. (Accessed 4/2/18).
Caitlin Doughty, "Making a Death Plan!," Ask a Mortician - Youtube, January 5, 2018.
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I would include a provision for returning gifts to the donor or donor's estate if the institution can't find a local home for them.
This is a fantastic suggestion! Thanks so much!
Yes. Or even transferring them to a third party steward in that role if the original donor isn't willing or able.
I wonder if board members would see something in this that might spur a reaction that this somehow limits them from exerting their "fiduciary responsibility."
How so? Do you mean that they would see something like this as an imposition to them acting in the best financial interests of their organization?
Yes. A board might interpret an agreement to not liquidate assets as irresponsible management on their part.
That's a fair point, but given they would be the ones writing it, I think they could work around it. An organization could write up something like this and still provide themselves with avenues for selling collections upon their impending closure; they could write it up without necessarily impeding their fiduciary responsibilities. It would ultimately be up to them in how they write this up, because I'm sure however they write a will like this would vary to varying degrees from the example I provided above.
Best/Worst pun yet, @dduquette!