Post by Stephanie Carter, Attorney at Law, with Draneas & Huglin, P.C.
Member, Senior Resource Alliance Northwest
What do I mean by the term “digital assets?” This term includes any assets in a computer-readable format and stored on a computer, server, or other electronic device. Examples include websites: Facebook, iTunes, Twitter, Flickr and similar accounts; documents and other information saved in the “cloud;” and bank, investment and other accounts accessed over the Web.
At this time, most people have no planning in place for what happens to these digital assets when they become incapacitated or die. Currently, Oregon, like most other states, has no law in place that gives fiduciaries (trustees, conservators, or personal representatives) access to these digital assets. I serve on a committee of lawyers that has developed a legislative proposal to pass a law that gives fiduciaries access to digital assets. However, the process is complicated by the user agreements that a person electronically approves when the person opens one of these accounts. You know, the window that pops up displaying the user agreement that you automatically click the “I Agree” button on without reading the agreement?
The story of Oregon Mom, Karen Williams, illustrates the problem of accessing digital assets after a death. When her son died in a motorcycle accident in 2005, she found his password and emailed Facebook, requesting that the administrators maintain his account so that she could read his posts and comments by his friends. Within two hours, Facebook had blocked his account. After a two-year legal battle, Williams finally gained access to her son’s account.
Other reasons a fiduciary may want to gain access to an account include the removal of hateful or distressing comments that may be posted (this has been a problem on Facebook memorial accounts for deceased police officers) or a conservator for an incapacitated person may need to gain access to accounts in order to determine whether the person has been financially abused.
At this time, the legal authority of a fiduciary to gain access to these digital assets is far from certain. In fact, state law makes it a criminal offense to access the computer accounts of another person. I invite you to think about what you would like to have happen to your digital assets when you die. I will keep you posted on the progress of the legislative proposal in future posts.
Stephanie Carter, Attorney at Law, Draneas & Huglin, P.C., 4004 Kruse Way Place, Suite 200, Lake Oswego, OR,
(503) 496-5509, stephanie@draneaslaw.com, www.pegasusfiduciary.com
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