Sunday, November 20, 2016

Getting Digital Affairs in Order

Jim and I sat in side-by-side chairs in an examining room. We were both scared. I knew I looked as worried, or more so, than Jim did. The neurologist breezed into the room, and said to Jim, “Now, we know why you are having trouble with thinking. Your MRI shows brain atrophy.”

My tears began to flow. “Why so sad?” he asked. “Other people have similar problems and go on with their lives.”

“Do you have your legal affairs in order?” he asked.

“No,” I admitted, thinking that question had an ominous sound to it.

Ominous or not, we heeded his advice and visited our attorney. He prepared our wills, advance directives, and durable power of attorney for financial and medical. We had it covered for both of us.

That was before online banking and bill pay—at least as far as we were concerned. I couldn’t get too involved online with super slow dial-up Internet and a PC that barely qualified as a working machine.

Now, with high-speed Internet and a powerful PC, most of my financial dealings are online. I pay bills electronically, access online bank accounts, and have countless other web presences. Not all assets are monetary. Some of us store our precious family photos online in digital photo albums.

Still, I figured my designated power-of-attorney could handle my digital affairs if I became incapacitated. That was a misconception indeed!

Harold and I have always assumed that if need be, we could manage each other’s digital finances, including the accounts each of us hold separately. In a casual conversation, he discovered that it was illegal to access an account unless you are a joint owner.

Even a financial durable power of attorney does not give legal access to digital accounts. A Florida woman found that out the hard way. Her husband had dementia, and she had managed his online bank account for years. One day she had a problem with the password, and when she contacted the bank, they told her she could not access the account because her name was not on it.

Sometimes it seems that we live in a world of too many laws, but digital information is one area that hasn’t been covered in most states. Persons with dementia need someone to manage their digital assets.

Congress and state legislatures could enact laws to ensure powers of attorney allow access to online assets and that executors can administer and distribute online assets. Service providers may eventually ask for “standby” owners who would manage digital accounts when an owner dies, or as in the case of dementia, could not manage his own account.

A law has been drafted addressing digital assets. At its 2015 Annual Conference in Williamsburg, Virginia, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment in all states a Revised Uniform Fiduciary Access to Digital Assets Act (2015). The act would grant the legal authority to manage digital assets to four types of fiduciaries: personal representatives of decedents’ estates, conservators for protected persons, agents acting pursuant to a power of attorney, and trustees.

In addition, the proposed Act would give custodians of the assets the legal authority to conduct business with the fiduciary of their client. In other words, the bank in Florida could have legally helped the woman access her incapacitated husband’s account.

Most of us need to revisit our financial documentation to make sure our digital affairs are in order. I don’t know about you, but it gives me nightmares to think that any of my digital assets could be forever lost in cyberspace.

Copyright © November 2016 by L.S. Fisher

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