DIGITAL ASSETS:A PATH TO FIDUCIARY

ACCESS

HOWARD H. COLLENSGALLOWAY AND COLLENS, PLLC

What happens when a person becomes incapacitated or dies?

Imagine If…

Charles Dickens had drafted The Mystery of Edwin Drood using Google Docs and had a stroke before publishing…

Imagine If…

Janis Joplin had uploaded her original recording of Me and Bobby McGee to Soundcloud before she died …

Access to this content would be challenging,

if not impossible, without a Fiduciary Access to

Digital Assets law

What are Digital Assets? Digital assets come in a variety of forms, and are constantly

changing, along with technology and social trends. An individual may have a property ownership interest in an

asset, or merely a license. The term “digital assets” means, but is not limited to, files,

including but not limited to, emails, documents, images, audio, video, and similar digital files which currently exist or may exist as technology develops or such comparable items as technology develops, stored on digital devices, including, but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smart phones, and any similar digital device which currently exists or may exist as technology develops or such comparable items as technology develops, regardless of the ownership of the physical device upon which the digital asset is stored.

Excerpt from: The Elder Law Report, Vol. XXV, Number 1

Categories of Digital Assets

Personal Stored on computers, smart phones, or other devices, or are

uploaded to a Web site or digital service Photographs, videos, emails, and music playlist

Social Media May involve photos, videos and other electronic files stored

on these accounts Financial

Online banking, online bill-paying activities Online accounts with no connection to a brick-and-mortar

establishment (Amazon, eBay, PayPal and E*TRADE, BitCoin) Business

Varies by types of business and extent of its computer or Internet associated activities, which may include blogs, domain names, credit card and financial data

Homestuck is a webcomic written, illustrated and animated by Andrew Hussie, and is the fourth overall webcomic published on MS paint adventures. The series centers on a group of

teenagers who unwittingly bring about the beginning of the end of the world through the installation of a beta copy of an upcoming computer game.

The comic uses a combination of static images, animated gifs, instant message logs, and animations and games made with adobe flash. It has been noted for its considerable length

—6,851 pages and over 750,000 words as of October 16, 2013.

The site has over 600,000 unique visitors daily.

On September 4, 2012, Andrew Hussie announced a Kickstarter to raise funds to develop a homestuck video game with a (then-unannounced) game studio. Development began in

2013, with the finished product expected in 2014. The project had raised "more than $275,000 in hours". more than 80% of the $700,000 goal was pledged in the first day. the

game reached the full $700,000 of funding in fewer than 32 hours. The Kickstarter eventually raised $2,485,506, making it the "fifth game on kickstarter to pull in a full seven figures" and the third highest funded video game in Kickstarter history

at the time.

FROM WIKIPEDIA

Provide Access

Create a document and note if the property is personal or has monetary value

Examples of note

Excerpt from: The Trust Advisor

Provide Instructions:

If you want a site to continue, for example if you have a website or blog, you need to leave instructions for keeping it up or having someone take it over and continue it.

If a site is currently producing or could produce revenue (e-books, photography, videos, blogs), make sure your successor knows this.

If there are things on your computer or hard drive that you want to pass on (scanned family photos, ancestry research, a book you have been writing), put them in a “Do Not Delete” folder and include it on your inventory list.

Excerpt from: Estate Planning for Digital Assets and Social Media

Inventory Checklist

• Make sure you include everything from your computer, other devices, and the “virtual world” (i.e. cloud, internet)

• All email accounts• All social websites you participate in• Financial and commerce accounts• Make a simple spreadsheet with passwords to

access assets

Digital Assets Inventory

Asset Access WishesName Contents Locatio

nUsername

Password Instructions

Recipient

Who is in Charge?

After you inventory your digital assets, you must decide who to give the access to in the event of your death or disability.

Make sure you indicate whether you want your digital executor to archive your content, share your content with others, or delete your content (and/or secure privacy of some content which may be harmful).

Make sure to include any special instructions (Think sensitive and/or embarrassing content).

Where Should I Note My Intent?

Powers of Attorney

Sample language: Electronic and Social Media. To access any and all of my online accounts; to obtain, use or change any of my usernames and/or passwords to any of my online accounts; to manage, add, delete, modify, curate, archive, maintain, and increase access or limit access to any of my online content; to transfer ownership rights and to maintain, modify, delete, or cancel any of my online accounts.  Such powers shall apply to all of my social media accounts, including but not limited to Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and financial institution on-line access points, any and all data and photo archiving sites, blogs and websites of mine whether I am maintaining such accounts in my individual name, through a business, through a pseudonym or anonymously.

Where Should I Note My Intent?

Last Will and Testament

Sample Language: Electronic and Social Media. To access any and all of my online accounts; to obtain, use or change any of my usernames and/or passwords to any of my online accounts; to manage, add, delete, modify, curate, archive, maintain, and increase access or limit access to any of my online content; to transfer ownership rights and to maintain, modify, delete, or cancel any of my online accounts.  Such powers shall apply to all of my social media accounts, including but not limited to Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and financial institution on-line access points, any and all data and photo archiving sites, blogs and websites of mine whether I am maintaining such accounts in my individual name, through a business, through a pseudonym or anonymously.

Where Should I Note My Intent?

Revocable Living Trust

Sample Language: Electronic and Social Media. To access any and all of Settlor’s online accounts; to obtain, use or change any of Settlor’s usernames and/or passwords to any of Settlor’s online accounts; to manage, add, delete, modify, curate, archive, maintain, and increase access or limit access to any of Settlor’s online content; to transfer ownership rights and to maintain, modify, delete, or cancel any of Settlor’s online accounts. Such powers shall apply to all of Settlor’s social media accounts, including but not limited to Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and financial institution on-line access points, any and all data and photo archiving sites, blogs and websites of Settlor’s whether Settlor is maintaining such accounts in Settlor’s individual name, through a business, through a pseudonym or anonymously.

Where Should I Note My Intent?

General Assignment

Sample Language: To the extent possible this assignment shall also act as delivery of all of my social media accounts, including but not limited to Facebook, Twitter, LinkedIn, any and all data and photo archiving sites, blogs and websites of mine whether I am maintaining such accounts in my individual name, through a pseudonym or anonymously.

Incorporating Digital Estate Planning into Your Practice

To help the process, a questionnaire for the client to list all digital assets and the value of those assets

Discuss if any of the assets have financial value

Keep record of all passwords and profiles There are websites specifically designed to

release account information after death to designated beneficiaries (PasswordBox.com or AssetLock.net)

Suggest clients protect significant data with strong encryption

Facebook Memorialize the account “We will memorialize the Facebook account of a deceased person when we receive a valid request. We try to prevent references to memorialized accounts from appearing on Facebook in ways that may be upsetting to the person's friends and family, and we also take measures to protect the privacy of the deceased person by securing the account.Please keep in mind that we cannot provide login information for a memorialized account. It is always a violation of our policies to log into another person's account.”

Memorial accounts can never be logged into again

Ask to have profile removed or deleted“We will process certain special requests for verified immediate family members, including requests to remove their loved one's account. This will completely remove the profile and all associated content from Facebook, so no one can view it.”Need to submit

The deceased's birth certificate The deceased's death certificate Proof of authority under local law that you are the lawful representative

of the deceased or his/her estate

From: Facebook

Twitter“In the event of the death of a Twitter user, we can work with a person authorized to act on the behalf of the estate or with a verified immediate family member of the deceased to have an account deactivated.

In order for us to process an account deactivation, please provide us with all of the following information:

The username of the deceased user's Twitter account (e.g., @username or twitter.com/username)

A copy of the deceased user’s death certificateA copy of your government-issued ID (e.g., driver’s license)A signed statement including:

Your first and last nameYour email addressYour current contact informationYour relationship to the deceased user or their estateAction requested (e.g., ‘please deactivate the Twitter account’)A brief description of the details that evidence this account belongs

to the deceased, if the name on the account does not match the name on death certificate.

A link to an online obituary or a copy of the obituary from a local newspaper (optional)”

From Twitter: How to Contact Twitter About a Deceased User

Twitter

“Please send us the documentation by fax or mail to the following address:Twitter, Inc.c/o: Trust & Safety1355 Market St., Suite 900San Francisco, CA 94103Fax : 1-415-865-5405”

*Please note: We are unable to provide login information for the account to anyone regardless of his or her relationship to the deceased.*

From Twitter: How to Contact Twitter About a Deceased User

LinkedIn

“Unfortunately, there may be a time when you come across the profile of a colleague, classmate, or loved one who has passed away. If this happens, we can close that person's account and remove their profile on your behalf.

We'll need to know the member's name, the company they worked at most recently, your relationship to them, and get a link to their profile. It's also very helpful if you can provide us with the member's email address so we can find and verify their account.”

There is an online form to complete.

From: Linked In

iTunes

Customers own a license to use digital files Apple grants “nontransferable” rights to use content Limits use of files to Apple devices used by the account holder

Digital music downloads do not work the same way physical content does

Restrictions even when alive to prevent person from lending, sharing or burning music to a CD

Section B of iTunes terms of service agreement says “iTunes is the provider of the Service, which permits you to purchase or rent a license for digital content ("iTunes Products") for end user use only under the terms and conditions set forth in this Agreement.”

Could ownership by a Trust defeat this problem?

From: iTunes

Google Inactive Account Manager

Can be set up through Google Settings Lets Google know what to do with some or all

Google related accounts after a specified period of inactivity

Services that can be controlled: +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube

Google sends a warning text and email before action is taken

Can have Google delete the accounts What about items bought on Google Play?

The State of the Law Is In Flux

In matters of incapacity and post death, the Probate laws (and in certain cases in Michigan, the Mental Health Code) will control who can access digital assets

Overwhelmingly, the law has been silent on this issue Digital companies have created terms of service

agreement to begin to address the management of digital property after incapacity and death

No one really reads the terms of service agreements Only eight states have passed legislation regarding

access to digital assets (Delaware, Oklahoma, Idaho, Rhode Island, Indiana, Virginia, Nevada and Connecticut, who was the first in 2005)

In 2011, the Uniform Law Commission established the Fiduciary Access to Digital Assets Committee to draft a free-standing act that will vest fiduciaries with the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets

The Committee has met since that time and in July 2014 the ULC adopted a final version of a Uniform Fiduciary Access to Digital Assets Act (UFADAA)

The UFADAA: Gives Account Holder control over

whether digital assets should be preserved, distributed or destroyed

Authorizes access to digital assets that would not violate the Federal Stored Communications Act, 18 USC 2701 and Computer Fraud and Abuse Act, 18 USC 1030

The UFADAA: If widely adopted, provides

consistency throughout the country Currently, there is a hodge-podge

approach Authorizes access by:

Agent under Power of Attorney Conservator Personal Representative Trustee

The UFADAA: Requires that fiduciaries provide

proof of authority in the form of a certified document

Gives Custodians of digital assets immunity for relying on a fiduciary’s apparent authority

Addresses Impairment of Contract and Public Policy

Under UFADAA: Personal Representative/Trustee are

“opt-out” May Access Digital Assets Unless

Otherwise Provided in Writing Conservator is “opt-in”

May Access Digital Assets Only With Authority from Court

Agent under Power of Attorney is mixed Access to Catalogue of Electronic

Communications is “opt-out”, Content is “opt-in”

Michigan and FADA

There are currently bills pending in the Michigan House (HB 5366-5370) and Senate (SB 293)Timing for action is uncertain Michigan FADA should improve on UFADAA by adopting broader definition of Fiduciary to include:

Guardian of the Person/Guardian of the Estate

Special Fiduciaries

Howard H. CollensGalloway and Collens, PLLC

26075 Woodward Ave, Suite 200Huntington Woods, Michigan 48070

248.545.2500GallowayCollens.com

Howard@GallowayCollens.comTwitter: @howardcollens