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
http://earlyonset.blogspot.com
Good Information! Thank you for posting this wonderful blog
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