The Uniform Law Commission, a national law group, approved a new law on July 16, 2014 which provides access to digital assets by executors, guardians, agents under powers of attorney and other fiduciaries.

The purpose of the Uniform Fiduciary Access To Digital Assets Act (UFADAA) is to provide fiduciaries with the authority necessary to access, control, or copy digital assets, while respecting the privacy and intent of the account holder. The UFADAA governs access by four types of fiduciaries: (1) executors (also known as personal representatives under some state laws) of a deceased person’s estate; (2) guardians (also known as conservators) for a living person who is incompetent; (3) agents acting under a power of attorney; and (4) trustees of a trust.

Each of the fiduciaries is subject to different rules based on the presumed intent of the account holder For example, an executor is presumed to have access to all of the decedent’s digital assets unless that is contrary to the decedent’s will or to other applicable law. A guardian may access the assets pursuant to a court order. An agent acting pursuant to a power of attorney is presumed to have access to all of a principal’s digital assets not subject to the protections of other applicable law; if another law protects the asset, then the power of attorney must explicitly grant access. And a trustee may access any digital asset held by the trust unless that is contrary to the terms of the trust or to other applicable law.

Although family members or friends often seek access to a loved one’s digital assets, the UFADAA does not provide access unless the family members or friends seeking access are also fiduciaries.

The Act adopts the concept of “media neutrality”, which means that individuals who would gain access to an owner’s tangible property as a fiduciary, such as an executor after the death of the owner, or a guardian during an incompetent owner’s life, will also have access to the owner’s digital assets. However, if the owner previously expressed a desire that the assets be kept private as expressed either in a document (such as a will or trust), or online by an affirmative act, then those wishes will be honored under the UFADAA.

Now that the act has been passed, the UFADAA will be published in a few months and ready for state legislatures to begin considering local enactment. The Uniform Law Commission drafts “model” or “uniform” state laws which may be adopted by the states, or modified as required.

The final version of the UFADA, with comments, is attached here – Uniform Fiduciary Access To Digital Assets Act

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