Alexander K. John, Esq., Health Care and Business Law
In an increasingly digital world, access to a person’s data and information has become an issue of growing concern. Certain states have responded to this by adopting the Revised Uniform Fiduciary Access to Digital Assets Act (the “Uniform Act”). The Uniform Act allows individuals to plan for the disposition of their digital assets.
A digital asset is any electronic information that an individual stores on a computer or other form of technology. Today this includes photographs stored online, social media accounts, online investment and bank account statements, etc. Because people tend to maintain numerous online accounts with passwords, this is problematic when they pass away and fail to give the password to someone to close their accounts or fail to provide some sort of directive as to what should be done with these accounts. Therefore, certain digital assets remain online indefinitely. Florida recently passed its version of the Uniform Act called the Florida Fiduciary Access to Digital Assets Act (the “Florida Act”), which shall be made effective on July 1, 2016.
In the context of estate planning, the Florida Act is very important. The Florida Act allows fiduciaries to manage an individual’s digital property and addresses his or her authority to manage digital assets. An individual may designate a representative using a web custodian’s online tool, which provides instructions for how information may or may not be disclosed to a third party. One may also provide access to these accounts via traditional estate planning documents, such as a will, trust, or power of attorney. The Florida Act also provides custodians legal authority to interact with fiduciaries and provides those custodians immunity from liability for acts or omissions done in good faith compliance with the Florida Act. Additionally, it gives certain flexibility to custodians to decide whether to grant full or partial access to the assets.
Not all online custodians have an online tool, which allows for a designated individual to access a person’s date or information. Sites like Facebook provide methods to terminate accounts but do not allow fiduciaries access to messages and emails. Therefore, providing a method to access these accounts in a will, trust, or power of attorney is still a viable practice. However, in the event of a conflict between the online tool and a designation in one of these estate planning documents, the designation made via the online tool controls assuming the tool allows the user to modify the designation at any time.
As it pertains to health care digital assets, the Florida Act does not address private online health care information with any clarity. Although separate HIPAA rules provide guidance and procedures on access to those records directly with a health care provider, there is still ambiguity as to how to manage health records stored online. How an individual wants these records handled should be clearly laid out in their estate planning documents.
If you have any questions or concerns about how to handle your online digital assets, please contact Alexander John or any of our estate planning attorneys at 941.748.0100. To reach healthcare law attorney, Alexander John, email ajohn@blalockwalters.com.
