Wednesday, September 10, 2014

State of Delaware: Fiduciary Access to Digital Assets and Digital Accounts Act

Likely you have already heard about this, but in case you haven't. Here is the synopsis as written into the Delaware State House Bill No. 345, which amends that State's Title 12:
Recognizing that an increasing percentage of people's lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlors, and beneficiaries of trusts. The Act should be construed liberally to allow such access and control, especially when expressly provided for in a written instrument. Section 1 creates a new Chapter 50 in Title 12 to contain the Act itself while Sections 2 through 4 amend existing statutes pertaining to personal powers of attorney, guardianships, and trustee powers to include the authority permitted under Section 1.
 As Nate Hoffelder wrote:
Delaware is the first state to follow the latest suggestion from the Uniform Law Commission, a non-profit group that crafts model legislation and lobbies to enact it across all jurisdictions in the United States. Last month the ULC adopted a new legal standard, the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which laid out what rights heirs should have over digital content belonging to the deceased.
Hoffelder notes that other states do have laws related to how the digital assets of the decreased should be handled, but that Delaware's law is more comprehensive.

While these state laws only govern people living in those states, they do create a path that other states - and our federal government - can follow.  This also should provide impetus for people to consider their digital assets when create a power of attorney and/or will.  If people do that and take advantage of these laws, then pushing other governments down this path becomes much easier.

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