Mary, your little sister, names you as her agent under her financial power of attorney. Two years later she has an incapacitating stroke. You have to immediately swing into action to manage her finances. When you start looking for papers in her desk so you can pay her bills, you realize two things.
First, Mary does not keep paper records.
Second, Mary, like the average person now, has at least 168 personal online accounts. These include emails, cell data, text messages, photographs, digital music and video, social media accounts, online financial, utility, credit card, and loan accounts.
Those accounts are called digital assets. You must access them if you have any hope of managing Mary’s affairs.
The Reality of Being a Fiduciary
Welcome to what is rapidly becoming a common fiduciary nightmare. Fiduciaries like executors, guardians, agents under the financial power of attorney, and trustees are sucked into an increasingly complicated world of digital assets.
This can be especially challenging because most fiduciaries are just ordinary people who lack expertise in the digital world.
Fear not because Texas has a law to help you: the Texas Revised Uniform Fiduciary Access to Digital Assets Act (TRUFADAA).
Texas Revised Uniform Fiduciary Access to Digital Assets Act Procedures
TRUFADAA removes a lot of barriers to your access to Mary’s accounts. Perhaps more importantly, as long as you are acting within the scope of your duties and authority, then you will be considered an “authorized user” for the purpose of computer fraud and unauthorized computer access laws.
It’s always nice to have a defense to a Federal or State crime.
TRUFADAA sets out different procedures for each type of fiduciary to follow to gain account access.
Procedure as An Agent
Your procedure, as agent for Mary under her power of attorney, is to send a written request to the custodian of the account enclosing a copy of the power of attorney and a certification signed by you, under the penalty of perjury, that the power of attorney is in effect. If the custodian requests it, then you must also provide the unique account identifier for Mary’s account, or evidence linking the account to her.
Digital Custodian Response Options
The digital custodian has options for its response. It can grant you full access to Mary’s account, partial access to the account sufficient to perform the tasks with which you are charged or provide you with a copy in a record of any digital assets that Mary could have accessed.
There is no guarantee that you will get access to the content of Mary’s digital communications. Mary’s privacy concerns, and those of third parties involved in her communications, will likely protect that content. As a fiduciary, you have a duty of confidentiality, but that may not be enough to outweigh the other privacy concerns.
Be Aware of Restrictions
There are other restrictions that may limit your access. A particular custodian’s terms-of-service agreement may throw up roadblocks. Further, Mary may have put some obstacles in place. Many companies allow users to use an online tool to restrict disclosure. If Mary did so, then that will override any contrary provision in her power of attorney that named you her agent.
How to Simplify Digital Credential Access
How could Mary have prevented this nightmare? She could have created a secure process for digital credentials to be stored and transferred to you, ensured that her Power of Attorney included language about digital assets, regularly updated her digital estate plan, and taken advantage of tools for her online services.
Have you obtained the records yet for Mary’s first account? Good, because you have only 167 more accounts to go…
Make Account Access Easy with Hammerle Finley Law Firm
Help your loved ones avoid a headache in the future and include a secure process for digital credentials into your estate plan now. Our team of expert attorneys is here to help. Schedule a consultation today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
