Power of Attorney and Digital Assets

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Question: Should I update my power of attorney every few years even if my agents have not changed?

Answer: Yes; powers of attorney, indeed all estate planning documents, should be reviewed periodically. This is because even though your wishes may not have changed, the law may have changed.

Powers of Attorney are particularly important to keep current because, unlike the Health Care Proxy which confers broad authority to make decisions, the Power of Attorney must be on a specific form and enumerate, with specificity, what powers you grant to your agent. Because of the nature of having to “list” what your agent can do, this form keeps estate planning attorneys on their toes by requiring us to continually add powers to the document as new caselaw or circumstances develop.

The most recent example of this came last year when Governor Cuomo signed the Fiduciary Access to Digital Assets Act into law. The new law provides fiduciaries with the right to access digital assets. However, in order to give this power under a power of attorney, the power referencing digital assets must be specifically referenced in the modifications section. Without such a reference, the institution holding the digital asset could refuse to accept the power of attorney. Absent another designation of authority to access your digital assets, most loved ones are bound by a Terms of Service Agreement, typically consented to in haste when creating an email or social media account. The law permits the owner of digital asset to direct who can access the account and to what extent. Without this access, many service agreements provide that at the death or incapacity of the owner of a digital asset, their account was frozen or deleted without access by loved ones.

Digital assets can be more than just an old email account. The term refers to email accounts, online access to bank accounts, social media accounts, online businesses and digital work product, such as an author’s unpublished manuscript. Like our tangible items, digital assets hold sentimental and monetary value which most would like their loved ones to be able to access in the event of their incapacity. Ensuring that your documents have provided reference to this new law is an important step in completing your estate plan.

 

Kimberly Trueman, Esq. and Nancy Burner, Esq.

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Burner Law Group, P.C.

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