What is the Florida Fiduciary Access to Digital Assets Act, and why is it important?
On July 1, 2016, the Florida Fiduciary Access to Digital Assets Act took effect. “Digital assets” include electronic records like emails, texts, online photographs, and social media accounts. Before the passage of the Digital Assets Act, Florida, like most other states, lacked any legal authority addressing the disposition of such assets in the event that an individual becomes incapacitated or dies. As a result, fiduciaries – including agents acting under Durable Power of Attorney, court-appointed guardians, trustees, and Personal Representatives of estates – were frequently denied access to digital assets by custodians of the incapacitated or deceased person’s accounts. Every experienced probate attorney can attest to the growing problem posed by lack of legal access to digital assets.
Only a few years ago, most financial transactions were documented in physical form: People carried checkbooks, received their statements by mail every month, and visited actual banks to cash checks, make deposits and withdrawals. We also collected physical photographs and slides, and put our most precious prints in photo albums for safekeeping. Important papers and legal documents were organized in file cabinets and lockboxes.
Times have changed. In today’s increasingly technology-driven world, checks are deposited electronically and bank statements arrive online. Most people only visit banks to withdraw cash from ATMs. Countless digital photos exist only in our phones’ memories or in the invisible cloud, and we share them electronically as well, on Facebook, Instagram, or other social media. Our most important documents are stored as data on computer servers and accessed via the Internet. Many people have no documents in their homes and receive no statements by mail. When those people die or are incapacity, locating and accessing their digital assets becomes a challenge for their fiduciaries.
Consequently, several years ago, the Digital Assets and Information Study Committee of the Florida Bar’s Real Property Probate and Trust Law Section, of which I am a member, was formed to fashion a statute that would resolve the problems posed by access to digital assets. The law ultimately drafted and submitted to the Florida legislature this year is based on the Uniform Fiduciary Access to Digital Assets Act, which has also formed the basis of similar laws in several other states.
The stated purpose of the Act is to provide Internet users with the ability to plan for the ongoing management of their digital assets in the event that they become unable to manage such assets themselves. The Act gives these fiduciaries the authority to access, control or copy any such assets and accounts. As part of your estate planning in Florida, you should work closely with a highly regarded attorney who specializes in the field to make sure this crucial aspect of your accumulated assets is well taken handled. For example, ever Durable Power of Attorney and every Will I have drafted for a client since the enactment of Digital Assets Act has expressly granted authority to fiduciaries to access digital assets under the law.
What precisely are digital assets?
Under the guidelines of the Act, digital assets include:
- All information stored on computers or other electronic devices
- Content, including photos and documents, uploaded onto websites
- Domain names or digital entitlements associated with online games
- Any catalogue or content of electronic communication
A distinction is made in the Act between content and catalogue of electronic communications, the former being the more sensitive information. The catalogue refers to, for example, the email address, date and time of the mailing, whereas the content refers to the actual substance of the communication.
Who is authorized to obtain access to digital assets?
The four types of fiduciaries Digital Assets Act applies to are personal representatives of decedents’ estates, guardians of the property of minors or incapacitated persons, agents who are acting under a power of attorney, and trustees
Exceptions within the Act
There are two major exceptions to the digital assets covered by the Act. In order to protect digital assets owned by others and to protect the disclose of that the owner did not want accessed, the Act doesn’t cover employee communications generated in during the normal course of business and it also doesn’t require disclosure of any deleted information to which it is clear the user did not intend to grant access.
WIthout Planning, Terms of Service (TOS) Control
If a user hasn’t made arrangements for the disposition of their digital assets in an estate planning document or online, the provisions of a TOS agreement will always take precedence.
Procedures for Disclosure
The Act explains procedural rules for different types of fiduciaries in detail. Fiduciaries, such as personal representatives, agents, attorneys, guardians and trustees, may request disclosure from a custodian.
If the custodian has received all of the information required under the Act, he or she must typically disclose digital assets if such disclosure is requested. If the custodian fails to comply with a request to disclose digital assets, a fiduciary can usually apply for a court order directing compliance. Nonetheless, if the custodian is perceived to be acting in good faith, he or she is immune from liability for any act or omission.
Effective Date
The Florida Fiduciary Access to Digital Assets Act became effective July 1st of this years, and applies retroactively to all fiduciaries acting under a will, trust or power of attorney, and to appointed guardians with respect to Florida residents.
If you are a Florida resident, or considering becoming a Florida resident in the future, you should consider updating your estate planning documents with a trusted estate planning attorney to cover all pertinent aspects of your digital assets.