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Should You Be Checking Your Client’s Email?

The Revised Uniform Fiduciary Access to Digital Assets Act raises many questions.

How often do you log in? 

To email. To post. To connect. To follow. To check bank balances, insurance policies, investment portfolios and credit cards. To access phones, tablets and computers. To download content. To make content. Maybe even to work on code to make “content”—as we know it—obsolete.

With these digital interactions so pervasive, if not integral, in our lives, it makes sense that the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADA) has been developed to enable you as a fiduciary to step into someone else’s shoes (or thumbprint) when they die or lose capacity.

Under the RUFADA (which became law in Florida last month, with other states likely soon to follow suit), a fiduciary, such as a trustee, agent under a power of attorney, conservator or personal representative of a decedent’s estate, is empowered to access a principal’s or decedent’s digital assets. This includes all types of electronically stored information, whether stored on a computer or other device, content uploaded to a website or rights to digital property.    

The law is a welcome tool for fiduciaries trying to marshal assets that may only be known or possibly exist via an electronic format or communication. It also stands to be helpful to a fiduciary looking to wrap up or control a client’s affairs more generally. But in that regard, it also raises questions.    

Should an agent under a power of attorney be checking the principal’s email? Should a personal representative be the one memorializing a decedent’s social media accounts? Should a trustee be scrolling through the trustor’s music files?

A Sticky Situation

In these paperless days, someone will need to take these actions. The question is whether it should be the work of a fiduciary, especially when the fiduciary isn’t a loved one or relative of the sort that would typically handle matters of a strictly personal nature.  

Certainly, a fiduciary needs access to digital assets when the only indication of a bank or investment account, or other asset or receivable, may be in an email or downloaded statement. In addition, for some, there may be valuable intellectual property to be found among music files. Yet for many, these searches may be the equivalent of looking for a needle in a haystack with no idea if the needle is even there.

Under RUFADA, a fiduciary who accesses a client’s digital assets remains subject to all of the fiduciary's duties, including confidentiality. The law gives full access, but a client can limit access if appropriate. These provisions simply highlight the question: Should an agent or personal representative be going through a client’s digital affairs?

If the answer is  “yes” or perhaps a middling  “okay,” there’s also a further, more pointed, question: Do our clients expect us to be going through their digital affairs? If a personal representative with authority to access digital assets doesn’t actually use that authority, and let’s say there's a code on the decedent’s computer that would have changed the world except someone else was given the chance to change the world first, should the fiduciary be liable for the loss to the estate? Or let’s say the personal representative does go through everything and finds nothing, should the personal representative be compensated for the additional work?

The RUFADA doesn’t answer these questions. One can only suspect that case law or further statutes eventually will. 

 

Fiduciary Trust Company International is part of the Franklin Templeton Investments family of companies.

 

 

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