Presentation to Canadian IT Law Association Nancy Cleman
Sternthal Katznelson Montigny LLP June 18, 2014 1 Planning for your
digital life and after life
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IF WE DONT CARE WHO WILL? 2 NOT BEING ABLE TO GOVERN EVENTS I
GOVERN MYSELF Essays of Michel de Montaigne
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Yesterday 3 Recipe books Photo albums Vinyl Records Books &
CDS Family Videos Board games Address books Paper files
http://www.home-designing.com; 1954 Armstong Kitchen
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Today? Tomorrow? 4 Epicurious.com Facebook iTunes E-readers
(Kindle) On line folders On line games Cell phone contacts
Thinkstock
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The List Can Go On and On . 5 Paper statements Cheques Bill
payment Business contacts Piggy bank On line statements Phone
banking Internet banking Linked In Bit Coin
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Living On After We Are Gone 6 If we do not take charge of what
happens upon our death or disability we risk leaving a digital foot
print that was unintended. On the one hand it is akin to leaving
the house unlocked and letting people in to use your things without
care or attention; On the other hand, it is leaving a locked
treasure chest filled with valuables for which no one has the
key
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Take a close look at your clients digital assets: Rosemary
McCracken 7 Nine months ago, I calculated the value of my digital
assets at $7,000, said Duncan Stewart, Toronto- based director of
research for technology, media and telecommunications at Deloitte
Canada. Today theyre worth about $12,000. Canadians digital assets
are growing at rate of about 100% a year. Discusses possibility of
separate wills for digital and non digital assets ( if permitted by
law) http://www.insurance-journal.ca/2014/05/13/take-a-
close-look-at-your-clients-digital-assets/
Slide 8
Remember when all a person had to do when someone died: 8 Was
go to the safety deposit box to obtain a copy of the will or
mandate and all the important documents Look into a file folder
with the list of bank accounts and insurance policies Look through
an address book with the names of the people to contact
Slide 9
The digital age has changed the way we live our lives 9 Smart
phone = address book, camera, diary, mobile banking, social media
hub; personal and business communication tool Who has access? Who
should have access? What should happen to this information?
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What Can We Do to Protect Our Privacy 10 Who is the guardian of
our privacy if we cannot speak ? How can we be sure that our legacy
is protected and respected ? If we dont take care, we risk leaving
a digital warehouse for others to use; or lose important
information and assets.
Slide 11
Steps to Take 11 Conduct an inventory and keep it current,
including: Login information for mobile devices, tablets and
computers Email accounts & passwords Back up email accounts
Security questions Information on hardware, computers ; smart
phones Social media list of accounts and user ID and passwords
Cancel automatic renewals
Slide 12
List of digital assets 12 Computers; tablets; Smart phones and
their content Social media ( personal and professional) Photos and
videos Contact lists; address books; Calendars On line shopping
accounts; on line stores Music; books; Financial records;
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continued 13 Medical records Bank statements and banking
Electronic financial records; portfolios Emails Cloud storage Blogs
Websites Businesses run on line Bit coin & digital currency On
line gambling accounts
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Designate a Digital Executor/ Agent 14 Once you have the
information decide what should be done- keep the account? Close it?
Find out what can be done you may not control the web site where
you store the information Have you ever read the terms and
conditions or privacy policy? ( see links on the site) Designate a
person to manage this information and these decisions
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Letter of Direction 15 In addition to a memorandum/letter of
direction with the information on where to access the information,
consider what should happen If you dont give direction it is often
left to the executor or liquidator to make decisions (if they can
access the information) He or she may do something with which you
would not agree. Do you want your Facebook page to live on
forever?
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Questions to Ask Identity theft 16 Does the person use social
media to link to other accounts? For example does he or she use
Facebook to log into shopping sites? Do these sites contain credit
card information? Can you map or track this information? There is a
concern of people hacking into sites and assuming identity of
deceased persons
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You get what you pay for 17 Many people use social media sites
or free web sites to share data and information Many of these sites
are located in the USA If a person is incapacitated or dies unless
safeguards are put into place the data housed on these sites may
not be accessible The area is in a state of flux; It is important
to check the terms of these sites They are being regularly updated
to address this issue
Slide 18
Sample policies 18 The next few slides will examine the
policies of several web sites and what happens if someone dies and
a third party needs access to the sight. Most sites only deal with
death and do not take into account disability or people who are no
longer capable of making a decision ( mentally or physically)
Social Media sites often do not provide access to a users account.
They may act on certain instructions but to do so they require a
lot of information to protect the identity of the account
holder:
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Facebook 19 When a person passes away, we memorialize their
account to protect their privacy. Here are some of the key features
of memorialized accounts: No one can log into a memorialized
account and no new friends can be accepted Depending on the privacy
settings of the deceased person's account, friends can share
memories on the memorialized timeline Anyone can send private
messages to the deceased person Content the deceased person shared
(ex: photos, posts) remains on Facebook and is visible to the
audience it was shared with Memorialized timelines don't appear in
People You May Know and other suggestions
Slide 20
Ho w do I submit a special request for a deceased user's
account on the site? 20 We will process certain special requests
for verified immediate family members, including requests to remove
a loved one's account. This will completely remove the timeline and
all associated content from Facebook, so no one can view it. For
all special requests, we require verification that you are an
immediate family member or executor. Requests will not be processed
if we are unable to verify your relationship to the deceased.
Examples of documentation that we will accept include: The
deceased's birth certificate The deceased's death certificate Proof
of authority under local law that you are the lawful representative
of the deceased or his/her estate. If you are an immediate family
member and would like to request that we remove your loved one's
account from the site, please contact us. You may also use this
form if you have a special request regarding the deceased user's
account.contact us
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How do I report a deceased person or an account that needs to
be memorialized? 21 Memorializing the account: It is our policy to
memorialize the account of a deceased person. In order to protect
the privacy of the deceased person, we cannot provide login
information for the account. However, once it has been
memorialized, we take measures to secure the account.we take
measures to secure the account If you need to report a timeline to
be memorialized, please contact us.contact us Removing the account:
Verified immediate family members may request the removal of a
loved ones account from the site.request the removal You're reading
the Desktop Help answer. Learn more in our other Help Centers.our
other Help Centers
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Information to provide Facebook 22 Your full name Your email
address Full name on the deceased person's account Account email
address of the deceased person The email that may have been used to
create the account Web address (URL) of the timeline Please note
that we require verification that you are an immediate family
member or executor for account removal or special requests.
Relationship to the person
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Consider the level of detail 23 Immediate family (spouse,
parent, sibling, child) Extended family (grandparent, aunt, uncle,
cousin) Non-family (friend, co-worker, classmate) How can we help
you? Please memorialize this account Please remove this account I
have a special request I have a question When did the person pass
away?
Slide 24
Facebook 24 Facebook wont disclose passwords or transfer
ownership of an account There have been cases where parents wanted
access to an account of a child who passed away; those who were
successful had to go to court to gain access Facebook updated users
privacy settings to remain the same after ones death; Allows
friends and family of the deceased to request look back
compilations
Slide 25
Twitter 25 Wont disclose passwords Has a process to de activate
an account with request from a family member; (what if a business
is using Twitter?) There is now a service that allows a person to
tweet after death Twitter is unable to provide account access to
anyone regardless of his or her relationship to the deceased
Slide 26
What happens to your Twitter account on death: 26 In order for
us to process an account deactivation, please provide us with all
of the following information: The username of the deceased user's
Twitter account (e.g., @username or twitter.com/username) A copy of
the deceased users death certificate A copy of your
government-issued ID (e.g., drivers license) A signed statement
including: Your first and last name Your email address Your current
contact information Your relationship to the deceased user or their
estate Action requested (e.g., please deactivate the Twitter
account) A brief description of the details that evidence this
account belongs to the deceased, if the name on the account does
not match the name on death certificate.
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Twitter continued; 27 A link to an online obituary or a copy of
the obituary from a local newspaper (optional) Please send us the
documentation by fax or mail to the following address: Twitter,
Inc. c/o: Trust & Safety 1355 Market St., Suite 900 San
Francisco, CA 94103 Fax : 1-415-865-5405 Note: This is a United
States number, so please be sure to include the appropriate
international dialing code if you're sending from outside the
United States. We conduct all of our communication via email;
should we require any other information, we will contact you at the
email address you have provided in your request. If you have any
questions, you can contact us at:
[email protected]@twitter.com
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Deceased LinkedIn Member - Removing Profile How do I close the
account of a LinkedIn member who passed away? 28 Last Reviewed:
11/27/2013 Report Answer Inaccuracies Expand All Collapse All
Unfortunately, there may be a time when you come across the profile
of a colleague, classmate, or loved one who has passed away. If
this happens, we can close that person's account and remove their
profile on your behalf. To start this process, please answer some
questions about the person who has passed away. The form can be
completed and signed electronically via DocuSign here:
https://www.docusign.net/MEMBER/PowerFormSigning.aspx?PowerFormId=91e
28b6c-bc93-47ed-8d1e-1f81083529d6
https://www.docusign.net/MEMBER/PowerFormSigning.aspx?PowerFormId=91e
28b6c-bc93-47ed-8d1e-1f81083529d6 We'll need to know the member's
name, the company they worked at most recently, your relationship
to them, and get a link to their profile. It's also very helpful if
you can provide us with the member's email address so we can find
and verify their account. After you fill out this form, it will be
automatically sent to us for review and we'll be in touch
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3.1Rights to Access, Correct, or Delete Your Information, and
Closing Your Account (march 26,2014) 29 You can change your
LinkedIn information at any time by editing your profile, deleting
content that you have posted, or by closing your account. You can
also ask us for additional information we may have about your
account. You have a right to (1) access, modify, correct, or delete
your personal information controlled by LinkedIn regarding your
profile, (2) change or remove your content, and (3) close your
account. You can also contact us for any account information which
is not on your profile or readily accessible to you. If you close
your account(s), your information will generally be removed from
the Service within 24 hours. We generally delete closed account
information and will de-personalize any logs or other backup
information within 30 days of account closure, except as noted
below. With respect to SlideShare accounts and activity, if you
would like us to delete your record and/or remove a particular
comment you have made on SlideShare.net, or to provide a copy of
any personal data to which you may be entitled, please contact us
at [email protected]. We will remove your information from
SlideShare.net within 24 hours and delete and/or de-personalize it
from our systems within 30 days of closure, except as noted below.
Please note: Information you have shared with others (for example,
through InMail, network updates, content sharing, or LinkedIn
Groups) or that others have copied may also remain visible after
you have closed your account or deleted the information from your
own profile. LinkedIn Groups content associated with closed
accounts will show an unknown user as the source. In addition, you
may not be able to access, correct, or eliminate any information
about you that other Members copied or exported out of LinkedIn,
because this information may not be in our control. Your public
profile may be displayed in search engine results until the search
engine refreshes its cache.
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3.2Data Retention 30 We keep your information for as long as
your account is active or as needed. For example, we may keep
certain information even after you close your account if it is
necessary to comply with our legal obligations, meet regulatory
requirements, resolve disputes, prevent fraud and abuse, or enforce
this agreement. We retain the personal information you provide
while your account is in existence or as needed to provide you
services. LinkedIn may retain your personal information even after
you have closed your account if retention is reasonably necessary
to comply with our legal obligations, meet regulatory requirements,
resolve disputes between Members, prevent fraud and abuse, or
enforce this Privacy Policy and our User Agreement. We may retain
personal information, for a limited period of time, if requested by
law enforcement. LinkedIn's Customer Service may retain information
for as long as is necessary to provide support- related reporting
and trend analysis only, but we generally delete or de- personalize
closed account data consistent with Section 3.1., except in the
case of our plugin impression data, which we will try to de-
personalize at the time of collection, but in any event, we will
de- personalize within 7 days.
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Email Accounts 31 Do they contain important emails or
information? What about business documents or information? Be
careful that they are not appropriated by third parties who use
them to contact people after the email owner has died What is your
plan? Should you print out certain documents? Do you want the
account deleted? This applies to business as well as personal An
issue for entrepreneurs.
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Accessing a Deceased Person's Gmail Account 32 Accessing a
deceased person's mail We extend our condolences for your loss. If
you need access to the Gmail account content of an individual who
has passed away, in rare cases we may be able to provide the
contents of the Gmail account to an authorized representative of
the deceased person. At Google, were keenly aware of the trust
users place in us, and we take our responsibility to protect the
privacy of people who use Google services very seriously. Any
decision to provide the contents of a deceased person's email will
be made only after a careful review. Before you begin, please
understand that Google may be unable to provide the Gmail account
content, and sending a request or filing the required documentation
does not guarantee that we will be able to assist you. The
application to obtain email content is a lengthy process with
multiple waiting periods. If you are the authorized representative
of a deceased person and wish to proceed with an application to
obtain the contents of a deceased person's Gmail account, please
carefully review the following information regarding our two stage
process:
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Part 1-Information Required 33 We require the following
information: 1. Your full name 2. Your physical mailing address 3.
Your email address 4. A photocopy of your government-issued ID or
drivers license 5. The Gmail address of the deceased person 6. The
death certificate of the deceased person. If the document is not in
English, please provide a certified English translation that has
been prepared by a competent translator and notarized 7. The
following information from an email message that you have received
at your email address, from the Gmail address in question: -The
full header from the email message. See instructions on how to find
headers in Gmail and other webmail email providers. Copy everything
from 'Delivered-To:' to 'Content-Type:'instructions -The entire
content of the message Mail or fax this information to: Google Inc.
Gmail User Support - Decedents Accounts c/o Google Custodian of
Records 1600 Amphitheatre Parkway Mountain View, CA 94043 Fax:
650-396-4502
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Part 2- access Gmail 34 Part 2 After a review, you will be
notified by email and informed whether we will be able to move
beyond Part 1 to the next steps of the process. In some cases, this
waiting period may take up to a few months. During this process,
please be aware that Google will not delete the deceased person's
account before responding to your request. If we are able to move
forward based on our preliminary review, we will send further
instructions outlining Part 2. Part 2 will require you to get
additional legal documents, including an order from a U.S. court
and/or additional materials. Please note that submitting these
materials will not guarantee that we will be able to provide Gmail
content so we strongly recommend not embarking on Part 2 until you
hear back from us regarding Part 1. Because of our concerns for
user privacy, if we determine that we cannot provide the Gmail
content, we will not be able to share further details about the
account or discuss our decision. Once again, we offer our
condolences to you at this time and appreciate your patience and
understanding.
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Google inactivity account manager 35 What should happen to your
photos, emails and documents when you stop using your account?
Google puts you in control. You might want your data to be shared
with a trusted friend or family member, or, you might want your
account to be deleted entirely. There are many situations that
might prevent you from accessing or using your Google account.
Whatever the reason, we give you the option of deciding what
happens to your data. Using Inactive Account Manager, you can
decide if and when your account is treated as inactive, what
happens with your data and who is notified.
Slide 36
The digital memorandum needs to be updated 36 Like a will or a
mandate what if the designated person is not available What if
there is a divorce ? It is an issue in business- what if there is a
shareholder dispute? What happens if heirs disagree?
Slide 37
Update Legal Documents 37 Consider drafting specific clauses
for enduring powers of attorney and or wills designating specific
persons and giving them specific rights with respect to digital
accounts, on line accounts, bank accounts, etc.
Slide 38
UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 38 In the US,
several states have statues that address fiduciary authority over
digital assets The Uniform Law Commission is drafting legislation
-Uniform Fiduciary Access to Digital Assets Act ( UFADAA). In its
draft legislation to be presented at its upcoming meeting in July
2014 it states: The purpose of this act is to vest fiduciaries with
the authority to access, control, or copy digital assets and
accounts. It is important to understand that the goal of the
Uniform Fiduciary Access to Digital Assets Act (UFADAA) is to
remove barriers to a fiduciarys access to electronic records and
that the other law, such as fiduciary, probate, trust, banking,
investment securities, and agency law remain unaffected by
UFADAA.
Slide 39
UFADAA 39 A draft of the legislation is available at : www.
uniformlaws.org The next meeting is in July 2014;
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QUOTE FROM THE PREFATORY NOTE June 6, 2014 40 the number of
digital assets held by the average person increases, questions
surrounding the disposition of these assets upon the individuals
death or incapacity are becoming more common. Few laws exist on the
rights of fiduciaries over digital assets. Few holders of digital
assets and accounts consider the fate of their online presences
once they are no longer able to manage their assets. And these
assets have real value: according to a 2011 survey from McAfee,
Intels security-technology unit, American consumers valued their
digital assets, on average, at almost $55,000. Kelly Greene,
Passing Down Digital Assets, WALL STREET JOURNAL (Aug. 31, 2012),
http://goo.gl/7KAaOm. These assets range from online gaming items
to photos, to digital music, to client lists. There are millions of
Internet accounts that belong to dead people. Some Internet service
providers have explicit policies on what will happen when an
individual dies, others do not; even where these policies are
included in the terms-of- service agreement, most consumers click
through these agreements.
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Terms of PASSWORDBOX. COM 41 Digital Identity Management The
PasswordBox Application is a digital identity management service
that gives you the ability to save your passwords, credentials,
frequently visited websites and favorite websites by storing all
passwords, notes and form-filling data. Your passwords will be
encrypted on your device by a master password that only you know.
You only need to remember this master password to open your
PasswordBox and decrypt your encrypted passwords on your device.
After being encrypted on your device your passwords will be sent to
PasswordBox in an encrypted format through a secure connection for
storage in order to enable synchronization on your other devices.
PasswordBox never stores your master password on any server so your
passwords cannot be retrieved by anyone but you. Transfer of
Digital Assets in Case of Death The Services allow you to transfer
the login information of your important digital assets such as
websites, email accounts, social media accounts and sharing sites
(collectively Digital Assets) to your designated heirs (Heirs).
Upon your death, your Heirs are responsible for contacting
PasswordBox and providing necessary proof of death such as a death
certificate and identification before being granted access to your
Digital Assets in accordance with the instructions contained in
your account. PasswordBox will verify your death certificate with
the relevant authorities to avoid fraud. You may change, modify,
revoke or delete your Heirs at anytime by logging into your
account. Sharing of Digital Assets The Services also allow you to
share the login information of your important Digital Assets with
your designated sharee ("Sharee") with end-to-end encryption. There
are many things that Sharee may do with those Digital Assets (for
example, copy it, modify it, re-share it). Please consider
carefully what you choose to share. PasswordBox is not responsible
for any sharing of Digital Assets by you and disclaims any
liability or responsibility in respect of your sharing of Digital
Assets.
Slide 42
Article from the Guardian April 16, 2014 42 Law Society urges
people to leave instructions for their digital legacy Solicitors
organisation warns that too much valuable, intellectual property is
in danger of being lost when we die
http://www.theguardian.com/money/2014/apr/16/l
aw-society-instructions-digital-legacy
Slide 43
Make Sure Your Documents are Legally Correct and up to date 43
Important documents should be prepared by professionals in your
jurisdiction. In Quebec it is a notary or a lawyer. Wills must
respect the form of the jurisdiction. By way of example a recent
decision of the Quebec Superior Court ( Affaire succession
Bellemore, September 7, 2012 )held that a will typed on a computer
and signed by hand did not constitute a holograph will and was not
accepted (2012 QCCS 4283)
Slide 44
Consider updating your documents 44 Add language to powers of
attorney and wills Prepare memorandums Have a strategy for your
passwords and information
Slide 45
Powers of Attorney/Mandate 45 Used with permission of Sharon
Nelson. The following is the language she came up with her attorney
for our wills and Powers of Attorney. POWERS OF ATTORNEY To give
the Agent power over digital assets: Digital Assets. My Agent shall
have (i) the power to access, use, and control my digital devices,
including but not limited to, desktops, laptops, tablets,
peripherals, storage devices, mobile telephones, smart phones, and
any similar digital device which currently exists or may exist as
technology develops for the purpose of accessing, modifying,
deleting, controlling, or transferring my digital assets, and (ii)
the power to access, modify, delete, control, and transfer my
digital assets, including but not limited to, my emails received,
email accounts, digital music, digital photographs, digital videos,
software licenses, social network accounts, file sharing accounts,
financial accounts, banking accounts, domain registrations, DNS
service accounts, web hosting accounts, tax preparation service
accounts, online stores, affiliate programs, other online accounts,
and similar digital items which currently exist or may exist as
technology develops, and (iii) the power to obtain, access, modify,
delete, and control my passwords and other electronic credentials
associated with my digital devices and digital assets described
above. For greater emphasis to banks, include in the provision
giving the Agent powers regarding financial accounts: .and to
access, modify, delete, control, and transfer my digital financial
accounts.
Slide 46
Wills 46 My Executor shall have the power to access, handle,
distribute, and dispose of my digital assets, and the power to
obtain, access, modify, delete, and control my passwords and other
electronic credentials associated with my digital devices and
digital assets. [ALTERNATIVE: I authorize my Executor to engage to
assist in accessing, handling, distributing, and disposing of my
digital assets.] If I have prepared a memorandum, which may be
altered by me from time to time, with instructions concerning my
digital assets and their access, handling, distribution, and
disposition, I direct my Executor and beneficiaries to follow my
instructions as outlined in that memorandum. Digital assets
includes the following: (1)Files stored on my digital devices,
including but not limited to, desktops, laptops, tablets,
peripherals, storage devices, mobile telephones, smartphones, and
any similar digital device which currently exists or may exist as
technology develops; and (2)Emails received, email accounts,
digital music, digital photographs, digital videos, software
licenses, social network accounts, file sharing accounts, financial
accounts, banking accounts, domain registrations, DNS service
accounts, web hosting accounts, tax preparation service accounts,
online stores, affiliate programs, other online accounts, and
similar digital items which currently exist or may exist as
technology develops, regardless of the ownership of the physical
device upon which the digital item is stored.. Used with permission
of the author, Sharon Nelson
([email protected]/www.senseintcom;
twitter.com/sharonnelsonesq.) She asked that we also thank her
attorney.
Slide 47
Plethora of Web Sites and Resources 47 Death and Digital
legacy.com Legacylocker.com CirrusLegacy.com - your digital legacy
secured Murfie.com - store your physical copies Securesafe.com
RecordMeNow.org ifIdie.net ( Facebook app that lets you record a
message) PASSWORDBOX.CA www.thedigitalbeyond.com Thinkstock
Slide 48
Information Can Be Locked Away 48 If User ID and password
information is not available to your trusted advisor, the
information can be lost forever. In an effort to protect privacy
and identity while people are alive, strict rules may prevent
access after they have died; If your advisors dont have a record of
what you have they wont know what to look for or where to look
Slide 49
Create a Digital Memorandum 49 Create a memo to record your
digital life and how to access it ; In addition to a list of bank
accounts and insurance policies it is now important to identify
Email accounts and passwords. Social media accounts On line bill
payment Digital devices and passwords ( smart phones) computers
Email addresses to recover passwords
Slide 50
Digital Memoranda contd. 50 Leave clear instructions to the
people in charge of the estate so they can access the assets and
manage the estate; Identify if possible if you want your social
media site to survive or be cancelled. It is important to plan for
this during your life time when you can make decisions. Personal
property extends beyond the movables and what we can see; We need
to consider our digital foot print so it can be managed as
effectively as our papers
Slide 51
Unclaimed Estates?? 51 What happens if the estate is unclaimed
? Who owns the rights and information ? What if it is critical to
your business does the IP go to the STATE?
Slide 52
Out of sight should not mean out of mind:-Some ideas and
solutions 52 Start the discussion with your clients so they
consider their digital assets when making plans for their estate or
when they are not capable of acting Some lawyers are drafting
specific clauses to give liquidators and executors powers with
respect to digital assets. Other options are to provide a letter of
direction to the executors to advise what should be done with these
assets
Slide 53
Make Sure Not To Lock Up Your Life and Throw Away the Key (
Password) 53 Empower your liquidators so they can respect your
wishes Leave them with the tools and directions to respect your
wishes Thinkstock
Slide 54
Digital Graveyards 54 If actions are not taken your family
photos and mementos are either lost for ever Or made public without
oversight or control Decide what should remain and in what format
Thinkstock
Slide 55
Keep on top of your data include your digital storage 55 Online
storage and filing may not be transferable Can your online
purchases be transferred? We used to leave libraries and boxes of
records and photos- the shift to e-books, digital music has changed
the landscape Consider when reviewing files what should be kept; if
it is important print it out; Try and organize your digital
life
Slide 56
Its a Question of Choice 56 There are a plethora of digital web
sites and memorial sites It is as important to control ones digital
legacy
Slide 57
Questions or Comments 57 Contact: Nancy Cleman [email protected]
514-878-1011 x 249 Thinkstock