Who Gets What’s On Your Computer?
How much of your important information: pictures, family ancestry, financial and medical data, business or property ownership, is on your computer or other digital equipment? Is any of it encrypted? What if automatic payments continue after your incapacity or death (and the end of your income) and your agent or personal representative cannot get to the site to make arrangements? Does your power of attorney allow your agent access? Could your agent get into the computer.
Individual privacy and law enforcement are on a collision path, and the commitment of some companies (like Apple) to prevent access by third parties to customer accounts for any reason, makes the fiduciary’s job almost impossible. If have ever you read the lengthy “Terms and Conditions”, which almost everyone automatically accepts to sign on to a new site, it probably prevents anyone else, including fiduciaries, from accessing your account. In addition, federal and state laws prohibit unauthorized access to computers.
There are some online programs (like Facebook and Google) that let you determine what happens if your account has not been used for a certain period (“Inactive Account Manager” or “Legacy Contact”). However, many of us are not aware of them, and therefore, few of us use them.
Additionally, federal and some state laws have tried to address Fiduciary Access to Digital Assets, but they do not completely solve the problem. The Alabama legislature has introduced a bill, which would specify powers and duties of a fiduciary in managing digital assets and for a custodian of digital assets to disclose the assets to a fiduciary, but no action has been taken.
Until a suitable law exists, you should be certain that your own documents give maximum power to your trusted representatives. When you do your estate planning, consider the disposition of your digital assets and be sure that your agent or personal representative will have access to accounts, including granting them express powers in your will, trust and power of attorney. More than ever you should carefully choose whom you appoint to handle these matters, and who the successor will be.
Ann R. Moses is President at Moses & Moses, P.C.