Digital assets are often overlooked, but have become very important and should likely be addressed in both your will and power of attorney (POA). Historically, executors under wills or agents under POA’s (fiduciaries) would simply check files and incoming postal mail to address things such as bank accounts, investment accounts, 401k’s, credit cards, utility bills, mortgages, and other open accounts. However, life in current times has in many instances become much more complex, more spread out, and most of all, MORE ONLINE. Regulations prohibit impersonation of another to access online accounts of another person that is living or dead. In the more paperless society that we have become, the possibility exists for others to not know about your bank accounts, investment accounts, and certain other assets, without some type of access to online information. Furthermore, cloud storage of online digital assets such as family pictures, or digital assets necessary to run a family owned business, might be inaccessible or destroyed. The Pennsylvania Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) was approved July 23, 2020 relating to wills and Powers of Attorney. RUFADAA provides avenues for you to allow your executors under your will, or your agents under your POA, specific or limited means to manage your digital assets.
A will, trust, or POA addressing digital assets should address the level of authority of a fiduciary’s access to either the catalog of information or contents. A catalog of electronic communications, also referred to as the catalog or envelope, is similar information that you might see in an email inbox without opening an email. The catalog can contain information such as a subject, time, date, and people involved in the electronic communication including their electronic address or email address. Content of and electronic communication, or content, is similar information that you might see when you open an email. Content includes the non-public substance of a communication, and may also refer to non-public electronic storage maintained by a custodian that provides public electronic communication services or digital asset storage. Electronic storage can include online files and online pictures etc.
A will, trust, or POA addressing digital assets should also address what accounts the fiduciary has authority to access. Access authority granted can include all accounts, or can include only specific accounts. Furthermore, access to the content can be given for some accounts, while just catalog access authority granted to other accounts.
In 2002, Pennsylvania enacted 18 Pa. C.S. Chapter 76, Computer Offenses, which among other things addresses computer fraud and prohibits hacking and unauthorized access to another’s “computer, computer system, computer, network, computer software, computer program, computer database, World Wide Web site or telecommunication device.”
July 23, 2020 (act to take effect 180 days later), Pennsylvania approved 20 Pa. C.S. Chapter 39, Uniform Fiduciary Access to Digital Assets (Act). The Act includes fiduciaries acting under POA’s and wills executed before or after the effective date of the Act, but does not apply to employer owned devices utilized by an employee. The Act enumerates that online tools provided by electronic service providers that the user may at any time modify or delete, override contrary instructions in a POA, will, or trust. Some examples of online tools include Google Inactive Account Manager, and Facebook Legacy Contact. The Act highlights that an agent or fiduciary managing digital assets under a POA, will, or trust, is an authorized user but has a duty of confidentiality, a duty of care, a duty of loyalty, and may not use authority to impersonate the principal user.
20 Pa. C.S. § 5601.4(a)(9) (applicable to POA’s executed on or after the effective date of 20 Pa. C.S. Chapter 39) grants authority to an agent acting under a POA to access “electronic communications and digital assets of the principal,” but that authority must be expressly granted. For more information on POA’s, visit the Power of Attorney page at MentchLaw.com
Access to digital assets including computers, digital storage devices, phones, email, online accounts, and cloud storage of pictures and files can be addressed in a POA, will, and trust. Not granting a fiduciary authority for at least the envelope of electronic information, can create serious issues and loss in the event of temporary or permanent incapacitation or death. Family owned businesses can be crippled. Family pictures can be lost. Information on online bills, credit cards, and mortgages can be lost. Also, not only access, but the very existence of certain accounts can be lost such as retirement accounts, IRA’s, 401k’s, investment accounts, stocks, bonds, annuities, and bank accounts.
It should be remembered that estate planning tools, including access to digital assets, is not just for elders or part of elder law estate planning. Accidents, disease, and temporary or permanent incapacitation can strike young people as well as senior citizens. Incapacitated people may end up in a hospital for an extended stay, in a rehabilitation hospital, in an assisted living home, or with home nursing care or nursing home caregiving. More details on various estate planning tools can be found at MentchLaw.com. It is recommended to start with the estate planning overview page at MentchLaw.com.
Attorney Kirk E. Mentch, Esquire