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The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 2

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At the Denver Tea Room

At the Denver Tea Room

This is part two of the previous post about some of the obstacles as well as rewards of solo and small firm lawyers getting their disability and death plans in place.  In the first part I mentioned I was posting this due to my participation in the American Bankruptcy Institute’s Rocky Mountain regional conference.  Next month I will be putting on a similar program for the Aurora Bar Association.

Let’s dive in with (a review of) Kipling’s serving men –

I keep six honest serving-men

 (They taught me all I knew);

Their names are What and Why and When

 And How and Where and Who.

 . . .

The Elephant’s Child, by Rudyard Kipling.

We’ll begin where we left off, with the fourth serving man. . . .

 Here’s the fourth man, HOW . . .

Well, you can always start with a simple plan, which involves another person (the sixth man is “who”).  It’s best to start with a person in mind to help you (known in the appendix as the “assisting attorney”) because it’s often easier to get going with this plan if there are two of you who are holding each others’ feet to the fire, so to speak.  If you can’t think of another attorney with whom you can get started, try a request on the BR listserv or ask on the SSF listserv.

Don’t let the fear of confidentiality and conflicts (as in the CRPC variety) stop you in your tracks.  Any arrangement to manage or take over the lawyer’s practice must include appropriate protections for client confidentiality. The assisting lawyer taking over must beware of conflicts and must safeguard confidential information. The assisting lawyer should be introduced to or familiar with office staff. Staff or family members of an affected lawyer need to know how to contact the assisting lawyer in the event of disability or death.  They need to know where any agreements, powers of attorney, or other planning documents are located. Family members and the PRs should be advised of the arrangements so they know of their existence and any important provisions. Instruction letters could prove invaluable and of course an office procedure manual would be ideal to help locate and decode the affected lawyer’s system.

A more advanced plan and even the super deluxe plan aren’t rocket science as such (unless you have an engineering background).  Lloyd Cohen’s ABA book Being Prepared is very useful in this regard AND it’s available from the CBA’s lending library.

 Enter Kipling’s fifth, WHERE.

This one is up to you! Meet somewhere with your law partner, a trusted colleague, a family member or office staff at a place and time where you can get started on the difficult conversation that leads to . . .  the documents.  The documents need to be kept in a safe place where your assisting attorney  can have access to the documents in the event they must be used or held by a third person like an escrow holder.  At a minimum you will need an easily understood and complete filing system with access by someone who has some familiarity with the system.

   And last but not least, there is WHO.

This can be a very challenging detail – on whom can you rely for this type of assistance?  Will it be asking too much of the person? These are not easy questions to answer, but many of us deal with these questions regularly in representing our clients.  The arrangement you make with the assisting attorney should establish the scope of the assisting attorney’s duty. Will the assisting attorney be the personal attorney for the deceased or incapacitated lawyer? This can be an important distinction. If the assisting attorney personally represents the deceased or incapacitated lawyer, in the event he or she discovered malpractice or ethical violations in any matters, the assisting attorney would not be able to inform the clients and also the assisting attorney could not represent the clients. If it is intended that the assisting attorney take over representation, then he or she would not be the personal counsel for the deceased or incapacitated attorney and must obtain each client’s consent to representation.

The compensation of the assisting attorney should be addressed, as should the matter of staff support to assist the assisting attorney in performing his or her duties and arrangements to pay for these services.  If you are looking for more inspiration about the intersection of (1) what to avoid by planning and (2) how a community of lawyers came together to help one of its own, read this 2013 article from the ABA Journal.

Okay, we’re finished with Kipling’s serving men, and I hope they have helped demonstrate how simple this process can be (note: I did not say it was easy).  Just in case you need a little extra ethics ammo to get you motivated, take a look at the American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-369, December 7, 1992, Disposition of Deceased Sole Practitioners’ Client Files and Property, which provides:

To fulfill the obligation to protect clients’ files and property, a lawyer should prepare a future plan providing for the maintenance and protection of those client interests in the event of the lawyer’s death. Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention, and who should notify the clients of their lawyer’s death.

Many state bars require such plans of solos (our neighbor Wyoming, for example).  Colorado does not – let’s not give OARC a reason to require this of us – plan now!  If you are looking for more ideas by way of checklists, LDPOAs, casualty letters, and other documents associated with this planning, and you are a solo attorney and have a question about my forms, get in touch!

©Barbara Cashman  2015   www.DenverElderLaw.org

The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 1

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My Old Girl

My Old Girl

Well, it seems my Solo Attorney Estate Plan posts are few and far between!  Strange when I consider that I have usually presented on the topic at continuing legal education (CLE) programs at least a couple times a year.  I’m always updating my materials (and looking for more cartoons about death and dying) and am particularly grateful to my colleague Mark Masters, a community resource for trust and estate lawyers who is of counsel at Glatstein & O’Brien. Mark was kind enough in December to take a close look at my forms that I use in my CLE presentations to get the planning going.  Though I have shared these forms over the years with dozens of attorneys, I am always looking for comments and suggestions.    I will be presenting on Friday at the ABI Rocky Mountain Bankruptcy Conference, January 23, 2015 as a panel member of Consumer Workshop III: Practical and Ethical Issues in Succession Planning. 

The other panel members include Charles “Chip” Mortimer, Jr. from the Office of Attorney Regulation Counsel, Colorado Supreme Court, Mark Dennis, of Dennis & Co., P.C. and our moderator, Nancy Miller, of Nemirow Perez. 

As an estate and elder law attorney, I am familiar with detour, dissolution, disability and death.  I am one of a small number (as far as I can tell) of attorneys who has a plan of some sort in place.  Fact is, most people put off thinking about these things and making plans.  I think it proves that lawyers are people too.  What are the barriers to making a plan?  Well, there are many.  There is the first hurdle of the emotional issues we face in coming to terms with uncertain certainties (death) and certain uncertainties (some catastrophe or a disability of a physical or cognitive variety).  This freezes many of us right in our tracks.  It may be the biggest reason that most people die without any estate plan in place.  Perhaps you have heard the estate planners’ adage about the people most in need of estate planning (people with young children and small business owners) being the least likely to have it?  Many of us, especially the solo and small firm types, have kids or family members who depend on us and our law practice as a source of income.  We need to make our own plans.

I don’t like to scare people, and so that is one of the reasons I share my forms – it’s kind of a “hey kids, try this at home” approach. For this post I will begin with the end in mind – yes, the plan itself, and a few documents that are must haves.  Where to start? Well, I recommend Rudyard Kipling’s six honest serving men to help overcome that most potent physical and psychological force – inertia:

I keep six honest serving-men

 (They taught me all I knew);

Their names are What and Why and When

 And How and Where and Who.

 . . .

The Elephant’s Child, by Rudyard Kipling.

Let’s start at the beginning with WHAT. . . this is the most important part to begin with.  What do you want to happen in the event of your disability, incapacity or death?  You as the person making the plan will sometimes be referred to as the planning attorney or the affected lawyer.  I know, the second moniker doesn’t sound so nice.  The person you have selected to help you will be known as the assisting lawyer.  Here are a few questions to get the ball rolling.

  • What will happen if you become disabled? Begin with a conversation with another lawyer or perhaps a staff member about how to make arrangements for you, a/k/a your law firm, as an affected lawyer or law firm to continue, close, or transfer your practice on your behalf.
  • What can you put in place to cover your disability? Have appropriate powers of attorney in place so that your assisting lawyer(s) can step in if needed to run your practice. They will need to be able to sign checks, handle the COLTAF accounts, manage employees, and generally conduct your law practice business on your behalf.
  • What will happen to your law practice upon your death? Consider naming at least one personal representative in your will who is a lawyer to be charged with the responsibility of selling or closing the practice.
  • What can you do now that could help your assisting attorney? Maintain an easily understandable system of client records to help the assisting or successor lawyer to carry out his or her responsibilities.

Sure, there’s the detail of how your assisting attorney will get paid, but don’t let that detail hold you back!

 

The second serving man is WHY.

Think of this planning as putting in place a management plan.  Even if you don’t have a business plan, let alone a management plan for your current practice, it is imperative that you get one for these “if” and the “when” scenarios.  Think of the plan as putting together a management team.  They will manage according to the plan you have put in place.

Whether you have a plan [or not] should be a conscious choice.  I know this sounds familiar to all of you reading this because, well . . .  many of us do this planning for a living and some of us do litigation when there wasn’t a plan or a badly constructed plan.  So, at the risk of singling you out as your own cautionary tale, wouldn’t you rather make a conscious and deliberate decision?  It doesn’t have to be perfect and it can be changed and updated as needed. What it is that fits your goals, personality, your business plan and your longevity and estate planning goals? Most of us would rather be in charge of deciding this and not leaving it to be a burden on someone else.  Here are a few “why” things to consider – just in case you forgot that you have to think about the same things as your clients:

  • Longevity planning (for incapacity or disability to avoid guardianship, conservatorship or OARC appointment of inventory counsel)
  • Making a will or trust that addresses or has provision relating to your law practice
  • Tax issues
  • Providing for some financial management in the event the firm can go on without you
  • Caring for and protecting beneficiaries with a stream of income or other benefit they might be depending on
  • Considering carefully and choosing your key people: agents, assisting lawyers, personal representatives, trustees, etc.
  • Maintaining privacy and confidentiality during times of uncertainty or transition
  • Ensuring there is no breach of fiduciary duty owed to clients by the lawyer or law firm

 

Kipling’s third serving man is WHEN.

There is no time like the present!  Some would argue that there is no other time besides the present, that the rest of it is . . . theoretical.  So get busy and start now.

That’s all I can fit in this post for now. . . .  stay tuned for the continuation!

©Barbara Cashman  2015   www.DenverElderLaw.org

 

Digital Assets After You’re Gone – Digital Assets in Decedent’s Estates

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The Call

 

Part III: This post is about digital assets after you have passed away.  What happens with your digital assets?  This question is simpler to explain (notice I did not use the term “answer”) in the decedent estate administration context, but the answer is a lawyerlike response of “it depends.”

If you would like to view a fun infographic blog post, check out Linda Rosenthal’s post about digital estate planning here.   Okay, let’s start with the basics.

  1. What is Digital Property?

Any online account you may own or any file that is storedon your computer, another device or in the cloud.

2. What might an estate planning attorney want to advise a client about digital assets in the EP context?

Many of us who practice law in this area use a “letter of instruction” as an organizational tool to help a personal representative do their job.  It is not a legal document but rather an organizational document designed to help make the job of the personal representative (PR) easier.  Many people have experience with trying to locate assets, insurance policies, investment accounts, etc., that are nowhere to be found after a person dies.  This is what the letter of instruction is designed to flesh out.  Many people assume that if they have a will or a trust, that this document alone will suffice to guide them to assets.  This is not necessarily so and is often not the case at all.  The will names the PR and describes the assets and property of the person who wrote the will and usually dictates the method of distribution of the property, but often a will or a trust will usually not give a PR any indication as to the identityor nature of many of the assets, how they can be located and accessed, along with other important details.

There are several services online to put into place if you want to make arrangements via persons other than those whom you have selected as your agent or personal representative.   I think it is crucial that a letter of instruction contain a digital access as well as digital assets listing so that the agent, PR or survivors can identify the “known universe.”  How is that universe constellated?  Look to Kipling’s six serving men to assist here: what, why, and when, and how, where and who.

  • Computer storage of information (hard drive or cloud-based)
  • Email accounts, usernames and passwords
  • Online Banking information
  • web domains and the like (internet real estate)
  • intellectual property (e.g., blogs, pictures, etc.)

For better or worse, digital assets that have value can be transferred or disposed of relatively easily via a will or trust.  Management of those assets is another story.  How can estate planners stay on top of the ever-changing landscape?!  How about a special digital asset trust?  You certainly don’t want the private information contained in your will.  I just probated a will where I had to redact the testator’s SSN.  The trust’s ownership of the assets will survive the death of a testator, and (in states outside Colorado where estates are public record) remain private.  Trusts can be amended relatively easily, and a special successor trustee (like a digital asset management company) may be named to manage the assets. This is just one idea to consider among several alternatives.

3. What are some of the difficulties to consider when devising an estate  plan which includes digital assets?

Most states do not have any law that applies particularly to digital assets in the probate context.  In our legal system case law can develop in new areas of the law but a preferable means of  a cogent legal response to this ever-changing landscape would be to devise a new “regime” for such assets by including them in each state’s probate laws.  There is of course a difficulty of the variety of each state’s probate laws, and this mobility is relevant in our mobile American culture.  This effort, a uniform state law regarding digital assets, is what the Uniform Law Commissioners (ULC) is engaged in presently.  In the meantime however, we must consider the lack of clearly applicable law, the uncertainty of existing law, the prevention of identity theft for online activities all in the context of taking steps to make sure that a person’s wishes relating to digital assets are carried out in the way  intended.  This area is a natural place for the ULC to get involved, as the need for uniformity across state lines, along with the consideration of applicable federal laws regarding the internet requires a considered approach.  In the durable power of attorney context, the issues are much more challenging than in the decedent estate context.

4. Fiduciary Access to Digital Assets

There are important distinctions between fiduciary management of digital assets when a person is alive  and the management of those same assets after a person has passed away.  The situation appears to be much more problematic as they concern management of assets while a person is alive and perhaps incapacitated.  The situation is clearer and a bit more manageable as it concerns decedents’ estates.  I previously wrote a blogpost about social media and mourning, here’s an article about a new feature on Facebook that allows people to memorialize, pay tribute to and otherwise grieve on Facebook.

I will have another post on this topic before year’s end – updating our digital accounts and assets should be on everyone’s year-end to do list!

©Barbara Cashman 2013     www.DenverElderLaw.org

Digital Assets in the Estate and Elder Law Context – Evolving Law in a State of Uncertainty: Part II

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In this post, I look particularly at a couple topics that touch on issues that relate to both the agent/conservator (while a person is still living) context (what we elder law types refer to as disabled or incapacitated) as well as the post-mortem (decedent’s estate) context.

Fall Colors at DBG

After reading last week’s post, one of my readers expressed to  me that he thought it was perhaps a bit too much of the big picture and didn’t see how the post hung together.  So, with that helpful observation in mind, I write today’s post with the intent for a slightly more concrete approach. . . .

Today I will focus on two major aspects of digital assets and our thinking about them.  First, I will look at the historical distinction between tangible versus intangible property and how digital assets extend this historical distinction in a new context.  Second, I will briefly examine the intersection of laws that apply to and are involved in our online activities, specifically I’ll take a look at which law applies and in what context-  the federal law and state law sources for internet regulation.

I recently spoke with a colleague who has been practicing for over forty years.  He has a tax law background and I am lucky to consider him part of my “brain trust.”  I liked his comments to me about digital assets, that they are basically just intangible property of different stripes and that this management issue for the decedent estate context can be managed in a way similar to the historical use of a “literary executor” that many writers have employed over the course of history.  I plan to revisit this prospect of “digital executor” in future posts.  Okay, I promised I was going to get more literal in this post, so here goes.

Black’s Law Dictionary (my embossed office copy was published in 1979) gives three useful definitions:

It defines “intangible asset” as: Such values as accrue to a going business as goodwill, trademarks, copyrights, franchises or the like.  A nonphysical, noncurrent asset which exists only in connection with something else, as the goodwill of a business.  For “intangible property” is the following: As used chiefly in the law of taxation, this term means such property as has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes, and franchises.  And so if you’re still scratching your head over this legal term for je ne sais quoi, Black’s offers this final shot under “intangibles:”  property that is a “right” rather than a physical object.  . . This sounds pretty well on point so far, doesn’t it?  So, let’s take a look at the second topic – the fuss about how to regulate the internet.

The Supremacy clause, conflict of laws, etc.  One astute commentator (Jim Lamm, who edits the very astute blog digital passing) has discussed the issue of federal preemption in the digital asset context. Federal preemption derives from the Supremacy Clause of the U.S. Constitution, which makes the U.S. Constitution the supreme law of the land.  Remember that under our federal system each state has its own constitution which is free to provide and protect rights more vigorously than the US Constitution, but below which no state constitution can fall, at the  …. There are two basic types of federal preemption, express and implied.  Express is explicit, when the federal law says “this is the law or federal regulatory regime that applies to a particular are of law.  I am thinking back to a case I was familiar with from federal court.  A good example of this is the Federal Insecticide and Fungicide and Rodenticide Act (FIFRA) which confers exclusive regulatory control of labeling of pesticides on the Environmental Protection Agency.  The states have no authority to regulate labeling under this type of federal preemption.

As you might imagine, even  express preemption gets an occasional workout in the U.S. Supreme Court.  So what about this issue in the context of digital assets?  There is arguably no  federal law that states it (the federal government) is the supreme regulatory scheme for the internet, even if there are in place a number of laws, including criminal statutes, regulating use of the internet.  Here is where we look at implied preemption, and the flavor of this type applicable to the digital assets and internet context is “occupation of the field” preemption, basically where the federal law takes up so much of the “regulatory room” if you will, that there is really nothing substantive left for the states to regulate.  It is a far stretch to consider the federal statutes concerning the use of the internet use as concerning a federal interest (as opposed to state interest) that is entrenched in a federal regulatory and enforcement scheme that is all-embracing in such a way as to leave no room for the individual  states to regulate in any meaningful way.

I will forge ahead with this discussion as it develops and as the Uniform Law Commissioners hone their model act.  This will potentially apply to our probate code in Colorado in several contexts  – for agents and other fiduciaries, for guardians and conservators, trustees, as well as personal representatives.  So, once again, we are left with more questions than answers.  This is one of the primary reasons I love practicing estate and elder law – it is constantly evolving.  So, if I might cast my net out on that far shore as I close this post, let me quote a favorite poet – Rainer Maria Rilke – who had a very insightful comment about the importance of questions in a human life:

..I would like to beg you dear Sir, as well as I can, to have patience with everything unresolved in your heart and to try to love the questions themselves as if they were locked rooms or books written in a very foreign language. Don’t search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.

       Letters to a Young Poet , by Rainer Maria Rilke, 1903.

 ©Barbara Cashman 2013     www.DenverElderLaw.org

 

 

Digital Assets in the Estate and Elder Law Context – Evolving Law in a State of Uncertainty part I

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October clouds in Deer Creek Canyon

 

In this first post, I will explore some of the unsettled and unsettling legal aspects of digital assets.  I am going big picture here.  Digital assets are a new kind of property, coming into existence as such by virtue of the technological and communication advancements that are part of our networked online world.  Like any other property, digital assets – an emerging “digital divide” if you will, have both the power to unite people and to distance us from each other.  Flash mobs, crowd sourcing, playbor and lots of other connections are all new ways of collective communication and concerted action which can be used to usher in positive changes, more democratic participation in previously closed institutions, and many other efforts.  Here’s a good recent example in an 11/5/13 post on the CBA/CLE Legal Connection blogpost about “crowdfunding” securities under the federal Crowdfund Act.   The new federal statute allows crowdfunding, a previously prohibited type of sales of unregistered securities over the internet.  Here’s a link to the new proposed regulations – the SEC wants to hear from you about them!

So back to the people and property connection.  I think that a basic question, as Howard Rheingold writes in his excellent 2012 book “Netsmart” is a question of the degree to which each of us embraces change and participation on an individual level so as to become part of something bigger.  Rheingold’s taxonomy of online collective work includes: (1) networking, (2) coordination, (3) cooperation, and (4) collaboration.  (Netsmart at 153-54.)   Some of this work involves hanging out, messing around, geeking out, networking, collaborating, participating – these are just some of the activities that the digital commons can provide participants.  I think conceptualizing digital assets requires a whole new way of thinking about property in this regard.  This virtual message board, marketplace, library, playground or laboratory – however you characterize it – typically defines the “property” by how it is used.  This is a break from tradition, and while this may not be a time for nostalgia really, but there is a looming sense of challenge for many of us when it can become difficult to disengage.   Unless you can bring yourself to shut off your Smartphone while you are with a loved one, on vacation or the like, and otherwise resist the urge to be plugged in 24/7, it can become a huge challenge  even if you don’t “have to.”  Theories regarding the implication s of networked technologies and its implications for human interaction, our sometimes compromised ability to engage in reflective, contemplative and deep thought, and so to an extent, even human consciousness abound.  Last summer I posted on GriefLink’s blog about  the simple power of listening and simple human presence (a/k/a the heart’s ancient technology).   But wait, this post isn’t about the internet as social experiment, it is about digital assets . . . .  there is a distinction, right?

Before I abandon this foray, let me go down one last philosophical path.  What if we consider the networked society and a means to advance the evolution of humans and our civilization (and yes, I am deliberately choosing to ignore that immense sleazy side of the internet)?   Here I will openly borrow from the final post in a series I wrote for the CBA’s SOLOinCOLO  blog:   Interesting to note in this context is “The Evolution of Cooperation: Competition is Not the Only Force that Shaped Life on Earth,” from the July 2012 issue of Scientific American,  and the article by Martin Nowak, “Why We Help.”  Nowak’s article describes a public goods game (inspired by the “tragedy of the commons” of the late 1960s)  that found that people were more altruistic when: (1) they are convinced (educated) that sacrifices for the common good are needed; (2) they are allowed to make contributions publicly (to enhance reputation); and (3)  they feel they are being watched.  Sorry – but this last one sounds positively theological to me, so I have to mention Pierre Teilhard de Chardin, who also had some very forward-looking ideas about the evolution of humanity and consciousness.

Nowak’s final observation is that “the altruistic spirit always seems to rebuild itself; our moral compasses realign.”  I liked this last comment about evolutionary simulations because it looks to be consistent with Teilhard de Chardin’s observations on the drawing together of noospheric effects and offers much promise for realizing the potential of social networks within the Internet.  I love this connection between Nowak, the mathematical biologist at Harvard; Teilhard, the late Jesuit paleontologist/theologian; and … social media.   That’s a glimpse of the “special world” that is all around us today – at least from my point of view.

The power of connection, of collective action made possible by the internet is indeed a force to be reckoned with, and we need also to account for the ways in which people and relationships are subjected to harm.  This is where the networked age is like a death, the demise of the old “information society” – and we cannot ever go back, or return to who we were before it.  This new place, however, is one of wonder.  It reminds me of a favorite poem by Hafiz, the medieval Persian poet, this excerpt is from “Deepening the Wonder” and is from Daniel Ladinsky’s 1996 book “The Subject Tonight is Love,” a translation of many poems written by Hafiz:

Death is a favor to us,

but our scales have lost their balance.

The impermanence of the body

should give us great clarity,

Deepening the wonder in our senses and eyes

Of this mysterious existence we share

and are surely just traveling through.

                …..

excerpted from The Subject Tonight is Love at 55.

At this point, I will conclude with the theme for the next few posts on this topic, what is digital property, how do we use it (or how is it used by others, sometimes in ways that we do not intend) and how do we manage and protect it?  What do I consider digital property?  The only way to answer this is in the big picture context that is really the only effective way to encompass, intellectually, what is a constantly developing universe: it is any online account you may own or any file that is stored in the cloud.  To be continued . . . .

©Barbara Cashman 2013     www.DenverElderLaw.org

Offering Support and Grieving in the Digital Afterlife

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Mesa Verde National Park

Most people don’t want to think about death and dying and the digital afterlife is part of the denial-based mindset that is widely accepted in our culture.  Recently I read an interesting article in the September/October issue of Scientific American Mind entitled “managing Your Digital Afterlife,” which discussed, among other things, how we genuinely grieve using an online medium.  I think to the online obituaries that are now commonplace and the messages left in a guest book at such sites. Perhaps you have heard of CaringBridge, a nonprofit  online community where terminally ill people and family members can get support (by helping friends and family organize meals, coordinate care, etc) and people can post updates on health events and other developments via journal entries.  I know people who have used it and it is a great way of staying in touch and offering care and support when people really need it.

Enough time has passed now with the biggest psychological experiment ever (a/k/a the internet) for studies to have been done about using it as a venue for grieving.  The article talks about how Facebook users interacted with the digital remains if you will of a decedent, returning to pages on anniversaries, birthdays and other events as a way to keep the memories of that person alive.  It makes me think of the memorial prayer – that says we are not gone until we are forgotten.  How will online grieving open us up to grieve in new ways, to forge new social support for survivors and maintaining a sense of connection with a deceased loved one or friend?

The Well of Grief, by David Whyte

Those who will not slip beneath

   the still surface on the well of grief

turning downward through its black water

  to the place we cannot breathe

will never know the source from which we drink,

  the secret water, cold and clear,

nor find in the darkness glimmering

  the small round coins

     thrown by those who wished for something else.

(from the 1992 CD entitled Close to Home, with special thanks to John L. for sending the CD of David Whyte’s spoken poems to me)

One of the biggest interferences with the grieving process that I see as an estate lawyer is when a person passes away and the grieving survivors have no idea where to find important information, accounts and contacts and often have no idea where to look.  For those reasons, organizing information is an integral part of the estate planning process I undertake with clients.  So what can we do with these complications when it comes to digital assets and digital remains?  What is it that we can leave behind online when we pass away?  What kind of property is it?  To whom does it belong? The legal issues arise out of a lack of clarity of answers to these questions and this can have adverse effects on the grieving process.

Digital property is not easily defined, as it depends on what the matter is, how it is used, and so on.  This is both a nascent and evolving area of the law.  So far only six states have digital asset laws that are part of their probate code.  Colorado is not one of them.  The Uniform Law Commissioners  are working on a uniform law in this area, which seems like a natural for uniform law adoption – the digital commons involve both state and federal laws.  I have drafted powers of attorney which cover several types of digital property and digital access, but the law in this area (access to an incapacitated persons digital property and accounts using a power of attorney) is less than clear.  Not even the finality of death seems to clarify the nature of a decedent’s digital assets.  Stay tuned for further posts on this topic.

©Barbara Cashman 2013     www.DenverElderLaw.org

 

Death and Taxes, Sure . . . . but what about Death and Facebook?

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I liked this link I found on mashable  thanks to the Wills, Trusts & Estates Prof blog I subscribe to.  Entitled “How 1 Billion People are Coping with Death and Facebook,” I think the article is more about how Facebook provides both a new means of grief expression and support, and also another avenue for death denial. . . .

I think of my dear late friend Matt, a collaborator on several bar association projects with me, as well as my only ever “tech support” guy.  He is still with me on Google +, which I find comforting.  Where do we go after we die?  That is one of the “big questions” in life. . .  This post is concerned with a slightly narrower issue that looks at the different levels of “immortality” online.    Speaking of immortality, and what you might want to be remembered for, here’s a link to a story about Billy Ray Harris, a homeless man in Kansas City, who returned a diamond ring to a woman who mistakenly put it into his change cup.   Just a bit of gratuitous feel-good stuff for this post.

A law blog I check periodically on digital estate planning issues is www.digitalpassing.com .  The blog’s author, Jim Lamm, posted on Feb. 18th about the digital afterlife from a legal perspective.  There are several commentators who are dealing thoughtfully with these questions that are breaking new legal ground.

Colorado doesn’t yet have a part of our probate code amended to consider access to and rights in digital assets for agents under durable powers of attorney, those acting on behalf of incapacitated persons and personal representatives of decedent estates.  All of these folks would be acting as “fiduciaries,” and  there is effectively a gray area surrounding rights, responsibilities and access to property and accounts.  The Uniform Law Commissioners, the same group who brought us the Uniform Power of Attorney Act (adopted by the Colorado legislature and in effect since January 2010), are working on this problem.

What makes these questions particularly challenging are twofold: the practical difficulties relating to finding someone’s password or getting around their encryptions (for some this is extremely difficult), and couple these with an interesting combination of contract law, state law, and federal  law relating to the internet, using data of another and privacy – and this can be quite a challenging mix!  I’m not going into those services which promise to keep your passwords safe, allow for some kind of a plan for internet mortality in the event of a person’s demise; or one I saw recently that promises to wipe your internet footprints.

Okay, so what about other online presence and persona besides Facebook, what about writings on blogs (sometimes these become books) and other intellectual property? Famous authors can retain licenses for the original works, but the bigger issue for some is how long does that legally protectable interest or copyright last?  Here’s a blog post about a federal court proceeding by a scholar against the Estate of Arthur Conan Doyle (author of Sherlock Holmes).  Copyright law is governed by federal  law, and there have been a few authors of works who were obscure and penniless during their lives but won posthumous acclaim and their estates became wealthy.  Copyrightable works include writings (literary works), music, choreography, audio and video (or other “moving pictures) recordings. Under current law (the 1976 copyright act and the Sonny Bono Act) it looks possible to extend copyright protection for seventy years beyond the life of its author or creator.  This is where Mickey Mouse, Superman and lots of other famous characters work their way into federal laws. . . .  Protection is extended to “original works of authorship fixed in a tangible medium of expression from which such works can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”  17 U.S. Code sec. 102.

Digital assets in the probate context (here I mean as used by an agent acting under a power of attorney or by a personal representative in a decedent’s estate) are at the intersection of federal and state law and can involve contract and property rights along with potential criminal implications when a person acting on behalf of another may be violating the agreed upon terms of use for a particular account.  Stay tuned for future posts on this timely and interesting topic.

©Barbara Cashman     www.DenverElderLaw.org

End of Year Lists: Don’t Forget the Digital Assets!

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Okay, it’s December – and it might even snow soon here in Denver . . .

End of year planning means list-making, right? So here’s a follow up to a post I published on April 30th about passing on in a wired world.

        1. Make a list of all your digital “stuff”

        2. Tell someone you trust where to find it

        3. Don’t forget to update it regularly (new information and changes to existing)

These are the top three things I suggest doing – even if  my use of the term “stuff” is vague.  Why would I use such a vague term here?  Well, there are more than a few types of digital “property,” some of which may look like property but not be property (e.g., a license).   This area is relatively new, evolving and fraught with uncertainty.  This is why I think the better policy is to include all property on a list and have it “sorted out” later on if need be.

Relating to (2), you could consider someone taking care of your online identity/footprint/stuff as your “digital executor.”  I’m thinking  historically, back to the many writers who entrusted their unfinished works or compilations to their named “literary executors.”  In one case with which I’m familiar, a friend of a decedent was previously instructed to “wipe” the hard drive and all storage devices on the decedent’s computer and smartphone.  Not all of us want to live forever digitally or leave a trail for other’s to track.  It’s best to decide these things in advance.

You will want to regularly update the list, which could include ownership interests (like a domain name or a bank account for example), licenses or uses (subject to terms of use contracts), access information for accounts, communication and devices (including computers, external storage, cloud and smartphone).

Only a handful of states have enacted legislation relating to digital assets of a decedent and Colorado has not yet done so.  What is the state of the law applicable to these matters?  Evolving!  There is federal legislation regarding the internet, contract law pertaining to terms of use which govern access to most online accounts, and then there is the unsettled area relating to the application of agency law and decedent’s estates (powers of agents under durable powers of attorney and a personal representative of an estate).   Suffice it to say there are some very interesting legal scenarios about the nexus of these three sources of law . . .   Many estate planning attorneys now regularly ask their clients about digital assets, and some (myself included) have drafted powers of attorney regarding digital access and assets.

There are many nuanced issues relating to digital versions of the familiar world (at least to those of us like me, a “digital immigrant”)  – a good example is the book.  Let’s say Decedent leaves his library of Mark Twain works (published in 1903) to his son, and the impressive digital collection of the same complete works to his daughter.  Whoa! The first bequest is simple and straightforward, but in the bequest to daughter of the digitized versions of the works (which may include versions of audio, video, CD, eBook, etc.) each of the assets would need to be considered according to federal copyright law, any terms of use or terms of service the decedent agreed to when the purchase was made, and whether any kind of intellectual property protection may additionally apply (like under the federal Digital Millenium Copyright Act of 1988).

Okay, what about your Facebook account – maybe you’ve heard there are memorial pages available . . . .  This access depends on many factors as well.  For example, a coroner investigating a suspected suicide may not be able to access the deceased person’s Facebook account to help with the investigation.  Read Jim Lamm’s Oct. 11, 2012 blog post that discusses this very issue in the context of the Stored Wire and Communications Act (part of the Electronic Communications Privacy Act of 1986).

This area of law, like the rest of life – is uncertain.  If you want to ensure that everything is accounted for (or erased) – be sure to provide some instructions and make that list of your digital assets.

©Barbara Cashman     www.DenverElderLaw.org