Well, it’s been a while since I’ve written a post about digital assets in the probate context. This year, Colorado was one of twenty-three states whose legislatures introduced the Uniform Fiduciary Access to Digital Assets Act (UFADAA). Keep in mind that the uniform act was endorsed by the National Academy of Elder Law Attorneys (NAELA) of which I am a member. The Colorado House Bill to enact the UFADAA was introduced at the beginning of the year, HB 15- 1189, and can be read here. Its short lived history is this: introduced in the Colorado House and assigned to the Judiciary Committee on January 29, committee discussion took place on February 19, and then on March 12, 2015, the House Judiciary Committee voted unanimously to postpone indefinitely further action.
Our legislature has postponed further action on this uniform law, but it doesn’t mean that it isn’t important for people and estate planning attorneys to address issues concerning access to digital assets by fiduciaries in the probate context. According to the bill fiduciaries included the following: a personal representative of a decedent’s estate (where there is a will or codicil or also a special administrator); a conservator acting on behalf of a protected person; a trustee acting under a trust; and an agent acting under a durable power of attorney. The bill specifically addressed each type of fiduciary and their access to a digital asset in further detail.
The Colorado Bar Association subcommittee charged with discussion of this uniform law as a Colorado bill also discussed Colorado-specific inclusions to the Uniform Act, like access by a “successor” as defined in our probate code when a small estate is collected by affidavit. Basic Information about using this form is found on the Colorado State Judicial website, www.courts.state.co.us and searching for the JDF 999 form, with instructions found at JDF 998.
Specifically excluded from application is access by an employer for an asset used by an employee in the course of the employer’s business.
So HB 1189 didn’t become law because it died in committee, but that doesn’t mean that at least some of us estate and elder law attorneys (especially ones like me who prefer to use their own form and not someone else’s) don’t still include provisions regarding digital assets in a durable power of attorney form. Colorado remains in the majority of states which have no legislation regarding digital assets in the probate law context, but that doesn’t mean we should feel comfortable remaining complacent and not doing anything to plan just because our legislature didn’t pass this important legislation. . . . There are step we can take to help ensure that a fidicuairy will have access to important fiduciary assets, but without a state statute to that effect, it is much less certain exactly what type of access will be allowed or recognized.
So here’s a bit of a review of why these measures are important to include in a general durable power of attorney and a will or trust:
- Identifying and providing an inventory of one’s digital “footprint” will greatly simplify an agent or other fiduciary’s ability to take control of an incapacitated or deceased person’s digital assets in keeping with the stated desires of the person giving the power – like a principal under a POA, the settlor of a trust, or a testator (the maker of a will). This can be done easily by keeping an update listing in a place that is discoverable or known to an agent, for example.
- Giving a fiduciary access to important information like usernames, passwords and the like, will greatly simplify the fiduciary’s efforts and ability get access from a service provider or to shut it down. The law in this regard is complicated – it involves user agreements, which often are based on the law of a state where the service provider is headquartered and not in which the user resides, and implicates also the federal law relating to the use of the internet.
- When a person gives another, such as a person acting as a fiduciary for that person, the authority to act, there should also be some instructions about what should be done with the particular asset. This will obviously makes the fiduciary’s job much simpler as a job description takes much of the mystery out of such an undertaking.
- The person who is the account holder should also expressly authorize service providers to disclose private information to a person’s fiduciary so as to evidence the person’s intent to give access to such information and to provide the authorized access to the information or data as a consequent of such access. This is why some of us, myself included, include specific clause to this effect in a durable power of attorney.
That’s all for now, but I will keep you posted as things continue to develop.
©Barbara Cashman 2015 www.DenverElderLaw.org