UPDATE ON ACCESS TO DIGITAL ASSETS:

ARE WE THERE YET?

PRESENTED BY:

HOWARD COLLENSGALLOWAY AND COLLENS, PLLC

MICHAEL LICHTERMANBOLHOUSE, BAAR & HOFSTEE, P.C.

Controlling and Maintaining Online Access

Categories of Digital Assets

Personal Stored on computers, smart phones, or other devices, or are

uploaded to a Web site or digital service Photographs, videos, emails, and music playlist

Social Media May involve photos, videos and other electronic files stored on

these accounts Financial

Online banking, online bill-paying activities Online accounts with no connection to a brick-and-mortar

establishment (Amazon, eBay, PayPal and E*TRADE, BitCoin) Business

Varies by types of business and extent of its computer or Internet associated activities, which may include blogs, domain names, credit card and financial data

Poll Question:

Do you have a personal Facebook page?

A. YesB. No

Poll Question:

Do you have a law firm Facebook page?

A. YesB. No

Poll Question:

Do you have a LinkedIn account?

A. YesB. No

Poll Question:

Do you have an online picture storage account?

A. YesB. No

Value of Digital Assets

“Digital Assets” may have sentimental and monetary value

2013 survey conducted by McAfee - average value on digital assets of $35,000

Both personal and business assets – actual monetary value (i.e. domain names, blogs, etc.)

Access to Digital Assets - Provide Instructions:

If you want a site to continue, for example if you have a website or blog, you need to leave instructions for keeping it up or having someone take it over and continue it.

If a site is currently producing or could produce revenue (e-books, photography, videos, blogs), make sure your successor knows this.

If there are things on your computer or hard drive that you want to pass on (scanned family photos, ancestry research, a book you have been writing), put them in a “Do Not Delete” folder and include it on your inventory list.

Excerpt from: Estate Planning for Digital Assets and Social Media

Terms of Service

Facebook’s Statement of Rights and Responsibilities

Yahoo Terms of Service LinkedIn User Agreement Google Terms of Service Ello

Facebook

Memorialize the account “We will memorialize the Facebook account of a deceased person when we receive a valid request. We try to prevent references to memorialized accounts from appearing on Facebook in ways that may be upsetting to the person's friends and family, and we also take measures to protect the privacy of the deceased person by securing the account.Please keep in mind that we cannot provide login information for a memorialized account. It is always a violation of our policies to log into another person's account.”

Memorial accounts can never be logged into again

From: Facebook

The State of the Law Is In Flux

In matters of incapacity and post death, the Probate laws (and in certain cases in Michigan, the Mental Health Code) will control who can access digital assets

Digital companies have created terms of service agreement to begin to address the management of digital property after incapacity and death

Only eight states have passed legislation regarding access to digital assets (Delaware, Oklahoma, Idaho, Rhode Island, Indiana, Virginia, Nevada and Connecticut, who was the first in 2005)

Federal Statues and Michigan Statues

Stored Communications Act, 18 USC 2701, (also known as the Electronic Communications Privacy Act (ECPA))

Computer Fraud and Abuse Act, 18 USC 1030

Michigan law, in MCL 750.540

Michigan and FADA

HB 4072 is the latest effort in Michigan Michigan FADA should improve on UFADAA by adopting broader definition of Fiduciary to include:

Guardian of the Person/Guardian of the Estate Special Fiduciaries

In 2011, the Uniform Law Commission established the Fiduciary Access to Digital Assets Committee to draft a free-standing act that will vest fiduciaries with the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets

The Committee has met since that time and in July 2014 the ULC adopted a final version of a Uniform Fiduciary Access to Digital Assets Act (UFADAA)

The UFADAA: Gives Account Holder control over

whether digital assets should be preserved, distributed or destroyed

Authorizes access to digital assets that would not violate the Federal Stored Communications Act, 18 USC 2701 and Computer Fraud and Abuse Act, 18 USC 1030

The UFADAA: If widely adopted, provides

consistency throughout the country Currently, there is a hodge-podge

approach Authorizes access by:

Agent under Power of Attorney Conservator Personal Representative Trustee

The UFADAA:

Requires that fiduciaries provide proof of authority in the form of a certified document

Gives Custodians of digital assets immunity for relying on a fiduciary’s apparent authority

Addresses Impairment of Contract and Public Policy

Under UFADAA: Personal Representative/Trustee are

“opt-out” May Access Digital Assets Unless

Otherwise Provided in Writing Conservator is “opt-in”

May Access Digital Assets Only With Authority from Court

Agent under Power of Attorney is mixed Access to Catalogue of Electronic

Communications is “opt-out”, Content is “opt-in”

Privacy Expectation Afterlife and Choices Act

The Privacy Expectation Afterlife and Choices Act (PEAC Act) Proposed by NetChoice Addresses post-death access only Requires probate in every instance

A Robust, Effective Approach for Michigan

Drafted by Updating Michigan Law Committee of the Probate Council

Final version of UFADAA as its basis A practical, Michigan specific law

developed by members of the Michigan Bar.

Endorsed by Probate and Estate Planning Section, the Elder Law and Disability Rights Section and the Michigan Probate Judges Association

Incorporating Digital Estate Planning

into Your Practice To help the process, a questionnaire for the

client to list all digital assets and the value of those assets

Discuss if any of the assets have financial value

Keep record of all passwords and profiles There are websites specifically designed to

release account information after death to designated beneficiaries (PasswordBox.com or AssetLock.net)

Suggest clients protect significant data with strong encryption

Inventory Checklist Make sure to include everything from the

computer, other devices, and the “virtual world” (i.e. cloud, internet)

All email accounts All meaningful social websites Financial and commerce accounts Make a simple spreadsheet with passwords to

access assetsDigital Assets Inventory

Asset Access WishesName Contents Locatio

nUsername

Password Instructions

Recipient

Who is in Charge?

After an inventory of digital assets is created, decide who to give the access to in the event of death or disability.

Make sure to indicate whether the digital executor should archive content, share content with others, or delete content (and/or secure privacy of some content which may be harmful).

Make sure to include any special instructions (Think sensitive and/or embarrassing content).

Access to Digital Assets

Create a document and note if the property is personal or has monetary value

Examples of note

Excerpt from: The Trust Advisor

Where Should The Client Note His or Her Intent?

Powers of Attorney Last Will and Testament Revocable Living Trust General Assignment

Using Tools that Service Providers Offer

Facebook Legacy Contact

Google Inactive Account Manager

Howard H. CollensGalloway and Collens, PLLC

26075 Woodward Ave, Suite 200Huntington Woods, Michigan 48070

248.545.2500GallowayCollens.com

Howard@GallowayCollens.comTwitter: @howardcollens

Michael LichtermanBolhouse, Baar & Hofstee, P.C.Grandville State Bank Building

3996 Chicago Drive SWGrandville, Michigan 49418

616.531.7711BolhouseLaw.com

MikeL@BolhouseLaw.com