Last week my colleague, Lee Flaherty, wrote about a newly enacted Michigan law that went into effect on June 27, 2016, dealing with the designation of funeral representatives. This week we want to tell you about another new Michigan law that also went into effect that same day.
“Digital assets,” “digital possessions,” and “digital records” are just some of the terms used to refer to our online presence: specifically, such things as social media accounts, email accounts, blogs, digital files, online banking accounts, online shopping accounts, and so on. Unlike tangible possessions that can be identified, physically located, and managed, and then divided and distributed when we die, our digital presence (which is usually safeguarded by any number of user names and passwords) goes on. The question then becomes, who has the authority to manage and ultimately shut down our online accounts if we become mentally incapacitated and when we die? By enacting the Fiduciary Access to Digital Assets Act, Michigan joined a growing number of states that have passed legislation to deal with these issues.
While keeping complete and updated lists of our online accounts, user names, passwords and instructions is always great advice, it is only part of the equation. The ability to manage, access, modify and ultimately delete accounts is often the bigger concern. Unless someone has the authority to manage or delete the online accounts of another, the accounts will likely linger untouched until the companies that manage the accounts decide to delete them, at which point data stored in the accounts may be lost.
The Act provides that we can now designate in our Will, Trust, Power of Attorney or other written record, the person or persons we want to have access to our digital accounts in the event of our death or disability, and the extent of the authority granted. Likewise, it is possible to designate in those same documents individuals who are prohibited access to our digital accounts. The Act goes on to provide that it does not grant to the appointed fiduciary any new or expanded rights not enjoyed by the original account holder, and that the terms of the service agreement governing the account may ultimately be controlling. The fact that nobody ever reads those things but simply clicks “I Agree” or “I Accept” will not help in the event of a dispute; absent some compelling factor, they will likely be found to be valid.
The Act is fairly lengthy, uses a number of defined terms, and tends to be a bit confusing. Doubtless it will be subject to interpretation, amendment and improvement as the technology, application, needs and considerations change and evolve.
If you want to take advantage of this opportunity to include a designee as part of your estate planning, feel free to give us a call, at (248) 477-6300, or contact us at email@example.com.