Apr. 4, 2016

Florida Enacts Fiduciary Access to Digital Assets Act

Florida Enacts Fiduciary Access to Digital Assets Act 

For those that can’t go a day without posting a political jab on Facebook, posting a photo on Instagram, tweeting a Tweet on Twitter (sounds like a line from a Dr. Seuss book), you may have wondered what happens to those accounts when you die.  Well, for Florida residents, we have some clarity.

On March 10, 2016, Governor Scott signed into law Senate Bill No. 494 which creates Chapter 704 of the Florida Statutes entitled the “Florida Fiduciary Access to Digital Assets Act” (the “Act”).  The bill was sponsored by Sen. Hukill. 

The Act is the States’ adaptation of the Revised Uniform Fiduciary Access to Digital Assets Act and aims to provide “fiduciaries” legal authority to manage digital assets on behalf of others and provides “custodians” legal authority to interact with fiduciaries to disclose digital assets in the manner requested by “users”.

This post summarizes some of the main points of the Act. 

What is a “digital asset”? 

Within the context of the Act you have your “account”, which under the Act, is “an arrangement under a terms-of-service agreement in which the custodian carries, maintains, processes, receives or stores a digital asset of the user or provides goods or services to the user. A “Digital asset” is “an electronic record in which an individual has a right or interest.  The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”   For example, an “account” is your Facebook account and a “digital asset” is your Facebook profile picture.

Who may access accounts and/or digital assets? 

The Act authorizes (1) Designated Representative(s) (through custodian’s online tool); or (2) Personal Representative(s); (3) Attorney(s)-in-Fact (4) Trustee(s); (5) Guardian(s) to access a “user’s” account or digital asset (collectively referred to as a “Fiduciary” under the Act).

Thus, there are two ways to grant someone other than you access to your digital accounts.  You may designate a representative using a “custodian’s” “online tool” which provides directions for disclosure or nondisclosure to a third person under the custodian’s terms-of-service agreement.  Alternatively, you may designate a third person under customary estate planning documents such as a Will, Revocable Trust, and/or Power of Attorney.  The Act also grants access to a court appointed guardian. 

What may a custodian disclose to a fiduciary or designated representative? 

The Act gives sole discretion to a custodian to (1) grant full or partial access to a user’s account and/or (2) provide a copy of a digital asset. Custodians are not required to disclose digital assets which were deleted by a user (i.e. the “What Happens in Vegas Stays in Vegas” digital assets).  Custodians may charge a reasonable fee for disclosing assets under the Act.

What are some other takeaways from the Act?

The Act provides protections to custodians by preserving any existing terms-of-service agreements and granting immunity from liability for acts or omissions done in good faith compliance of the act.

The Act requires certain disclosures depending on which fiduciary is requesting access to a user’s account.  For example, if a user grants authority to an attorney-in-fact under a Power of Attorney, a copy of the Power of Attorney is required.  Additional documentation is required if a Trustee or Personal Representative is requesting disclosure. 

For attorneys, the Act does not provide safe harbor language to include in estate planning documents. 

When is the Act Effective?

The effective date of the act is July 1, 2016.  

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