An important new law went into effect in Washington State, which deals with increasing fiduciary access to “digital assets.”
Who is a fiduciary and what are digital assets?
In general, a fiduciary is any person or institution who has the power to act on your behalf in situations that require trust, honesty, and loyalty. These individuals are hired or appointed to act in your best interests and must set aside their own personal motives in favor of your goals and well-being. The four types of fiduciaries this new law applies to are: 1) Personal Representatives of a deceased person’s estate; 2) Court-appointed Guardians of an incapacitated person; 3) Trustees; 4) Attorneys in fact acting under a power of attorney.
Digital assets can be online financial accounts, electronic mail accounts, electronically stored information, or even social media accounts.
A major complaint with the existing law in this area, the Uniform Fiduciary Access to Digital Assets Act (UFADAA), was that it was overly burdensome for fiduciaries to access digital assets. Fiduciaries often need to access digital assets to manage the affairs of a deceased person or a person who no longer has mental capacity. These changes should allow fiduciaries to handle digital affairs in an easier, quicker, and more cost-effective manner.
Why does this legislation matter?
This law makes it easier to reach e-mails or electronically stored documents of a deceased person, which may help determine the actual intent and wishes for their estate. Further, it allows someone to take down the social media accounts of a deceased person, so they do not simply sit there and cause people to mistakenly believe they are still alive and continue attempts at communication. A horrible example we have seen is a Facebook notification to “say happy birthday” to a relative who has already died of cancer. These are tricky areas, but the deceased or incapacitated person has a fiduciary to make these exact kinds of tough decisions, and they should be allowed to take proper action to carry out their duties.
The bottom line is that this legislation lets the person who has the best interests at heart make the necessary decisions on their behalf. At the Benjamin Law Group, we try to empower our clients as fiduciaries to make the best decisions on behalf of their deceased or incapacitated friends and relatives, and it is great to see this type of progressive legislation that aids our clients in their important efforts.
