The world seems to be changing faster and faster as technology makes its leaps and bounds. The law, which is not designed for quick action (remember: the mascot of the United States Supreme Court is the tortoise, representing slow and steady progress) struggles to keep up. However, as more and more things get digitized – even money (think online bank accounts and BitCoin) – the law has to stretch to accommodate it.
For example – what happens if your mother is declared incompetent by the Court due to dementia, but still finds her way to various and sundry scammers via her Facebook account? What happens to the written, but unpublished, masterpiece stored in the Cloud when the author dies? When your wife gives you a Power of Attorney because she is being sent overseas on a Secret Mission by the CIA, can you access her electronically delivered 1099s from the bank?
The answer has been, “well, don’t know, probably….” up until recently. Senate Bill 301, just passed by the Georgia Legislature, expands the definitions in the law regarding powers of attorney, conservatorships, and the probate of wills, to include electronic, web-based assets and social media accounts.
This bill says that someone to whom you have given Power of Attorney (your ‘agent’) (and not your health care power of attorney – just financial) or if someone is appointed as your Conservator by the Probate Court can have access to your digital assets just like they could your physical, tangible assets. It also applies to executors and trustees and “personal representative[s] acting for a decedent.”
In plain English, this means that if you become your mother’s Conservator, or if you are the executor of her will, you can get Facebook to give you access to her account. Or AOL (because of course your mother still has AOL) to give you access to her email. Or eTrade to give you access to her day trading account. This is true even if the terms-of-service agreement says that no one will have access to these things but the account holder herself.
This isn’t necessarily free reign in the cyber world, however. The custodian of the information (Facebook, etc.) can grant you only partial access in order to do whatever it is that you need to do. They can also charge you a ‘reasonable administrative charge’ for the cost of providing the information to you. They also don’t have to recover deleted files.
Of course, when you are making a Power of Attorney which grants access to these things, you can limit it yourself. For example, you may want your fiduciary to be able to have access to the billing section of your account, but not your private messages, you can limit that in the Power of Attorney itself. You may want someone to be able to make trades in your day trading account but not remove the money from the account itself. Everyone has their own boundaries, and the law allows for you to draw them. If it is confusing, then the holder of the records can ask a court to order what it can and cannot give to the fiduciary.
It gets a little more complicated. Some electronic accounts have a great deal of financial value – say, a website for an online business. You may want to leave the domain and website in your will to a particular person. The law accommodates this.
Like all new laws, especially ones that break new ground like this one, it will take some time before we see how the dust settles and how Powers of Attorney created before the new law are affected. Like everything else, if you have questions, ask a lawyer.
Nothing in this article should be construed as legal advice. It is being offered for informational purposes only. No lawyer can advise you about your situation without hearing the individual details of your case.