Frank S. Warner is a practicing lawyer in Ogden. Through From the Community, he shares information about issues affecting senior citizens and their families, including wills, trusts, powers of attorney, probate, guardianships, nursing home medicaid eligibility and other matters.
In an earlier article, I wrote about the fate of your Facebook and other social media accounts when you die. At that time, House Bill 13 was pending in the Utah Legislature. That bill was called the Uniform Fiduciary Access to Digital Assets Act.
The act was in fact passed by both the House and Senate and signed into law by Gov. Gary Herbert on March 15. The act defines digital asset as “an electronic record in which an individual has a right or interest.” It essentially covers any kind of electronic record you might have stored in the cloud, including photographs and business records such as client lists.
This article is going to look into the effect and application of the act in more detail than the previous article.
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The purpose and effect of the act is succinctly stated on the website of the Uniform Law Commission: “A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person’s best interest. Common types of fiduciaries include executors of a decedent’s estate, trustees, conservators, and agents under a power of attorney. This Act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The Act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”
Although the act doesn’t technically go into effect until May 9, its provisions are retroactive. So, it applies to wills, trusts, powers of attorney, probates, guardianships and conservatorships created any time prior to or after its May 9 effective date.
If you have seen any of my previous articles, you may have noticed that I often refer to uniform acts formulated and recommended by the Uniform Law Commission. This is because Utah has adopted a number of uniform laws, including the Utah Uniform Probate Act that dominates the fields of probate, wills, trusts, guardianships, powers of attorney and related issues in Utah. This latest uniform act was just finalized by the Uniform Law Commission in 2015 and has already been adopted in 25 states. It’s pending adoption in others.
The act defines the “custodian” as an organization that “carries, maintains, processes, receives, or stores a digital asset of a user.” This includes sites like Google and Facebook. You and I are referred to as “users.” Although many of the provisions of the original proposed uniform act were heavily lobbied against by many online service providers, the uniform act ultimately gained the endorsements of Google and Facebook and a number of other organizations. As a result, the act gives the “custodian” of your digital assets substantially more control and latitude than you might wish.
The act provides that the custodian may establish an “online tool” allowing you to modify or delete a direction regarding disclosure of your digital assets. Such an online tool would override a contrary direction in your will, trust, power of attorney or other document.
However, if the custodian doesn’t provide an online tool like this or your decide not to use it, you may allow or prohibit the disclosure of some or all of your digital assets through a will, trust or power of attorney. Directions established through the online tool trump the provisions of your will, trust or power of attorney. The directions established in the online tool — or those in your will, trust or power of attorney — trump the terms of service agreement.
The act grants the custodian substantial discretion in responding to a proper direction from a user. The custodian, in its sole discretion, may grant your fiduciary full or partial access to your account, or provide a copy of the digital asset. The custodian may assess a reasonable charge for the cost of disclosing that digital asset. The custodian also doesn’t need to disclose any digital asset deleted by the user.
The act contains other substantial protections for the custodian depending on whether the direction for disclosure is contained in a will, trust or power of attorney. In some circumstances, the custodian only needs to respond if it receives a court order.
So, as in the case of most laws, the act was a compromise, but at least it provides much clearer guidelines than have existed prior to its adoption.
Here’s the takeaway: Search for the online tool for each of your accounts, and utilize it. And when making your estate plan or preparing your power of attorney, don’t overlook your digital assets.
The information in this story is provided for general informational purposes only and is not legal advice or a substitute for legal counsel on any subject matter.