By: Sarah SavilleThis year, the Uniform Fiduciary Access to Digital Assets Act went into effect in Virginia. This Act has important privacy concerns for users of social media, emails, and other digital assets. The bill allows for fiduciaries to manage digital property. Electronic communications, however, are restricted unless the user consents to such access prior to death or incapacity, or if ordered by a court.Who are fiduciaries?
Fiduciaries include agents under a power of attorney, trustees acting under a trust, and executors and administrators of a deceased individual’s estate. Court appointed guardian and conservators are also fiduciaries.What are digital assets?
Digital assets are electronic records in which an individual has a right or interest. It does not include the device on which the records are stored. Virtual currency, web domains, and computer files are examples of digital assets.What are electronic communications?
Electronic communications are communications in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptic system. It includes text messages, e-mails, and social media messages. It does not include wire or oral communications, tone-only pagers, communications of tracking devices, or transfer of funds by a financial institution.How can I consent or prohibit access?
Consent, or prohibition, of access may be given in the power of attorney, will, or trust naming the fiduciary.Some custodians have a terms-of-service or online tools that allow a user to designate a recipient or prohibit disclosure to named persons. The use of such an online tool will override any contrary directions in the user’s power of attorney, trust, last will and testament, or other writing. The written consent or prohibition in power of attorney, trust, last will and testament, or other writing, however, overrides a terms-of-service agreement that does not require the user to take affirmative action other than a generic assent to the terms of service.In other words, the online tool provided by a custodian of electronic communications or assets will be honored if the user takes an extra step to consent to or prohibit disclosure, or consents by some means other than the generic “I accept terms and conditions” button. If the online tool does not have this affirmative action, then the estate planning tools can be used to consent or prohibit access.
Tags: guardian, last will and testament, Power of Attorney, privacy laws, social media laws, trustee