Understanding Fiduciary Access to Digital Assets Under Florida Fiduciary Access to Digital Assets Act
Social networking, e-mail, and digital platforms are here to stay; unfortunately, we are not. Internet users must plan for the management and disposition of their assets in similar ways that they make plans for tangible property.
Florida statutes define a digital asset as “an electronic record in which an individual has a right or interest.” When a user with digital assets passes away or becomes incapacitated, a representative may want access to these digital assets to collect financial records of the decedent, to prevent identity theft, or even for sentimental reasons. There are various state and federal privacy laws, however, that may prevent one from acquiring this information. Amongst these laws is the Florida Fiduciary Access to Digital Assets Act. The Act applies to a fiduciary acting under a will, trust, or power of attorney executed before, on, or after July 1, 2016 Fla. Stat. § 740.08. Chapter 740 generally prevents access to electronic information and assets without specific authorization from a user, even if a general grant of authority has been given to a fiduciary. As such, if the user desires that the agent have access to electronically stored information digital information or digital assets, they must curate the operating document to include a special authorization to that effect.
Granting an agent with power over your digital assets
Florida Fiduciary Access to Digital Assets Act gives users the ability to plan for the management and disposition of their digital assets if they should die or become unable to manage their assets. Users may manifest their intent through the use of a will, trust, power of attorney, or the individual digital platforms they utilize. A direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record. This online tool will direct the site to disclose to a designated recipient or not to disclose some or all of the user’s digital assets.
If there is no online tool manifesting a user’s intent, the user may vest fiduciaries with the authority to access, control, or copy digital assets and accounts through a will, trust, or power of attorney. The authority granted may include:
- The right to access, manage, control, delete and/or terminate any digital accounts.
- The right to access and receive the content of electronic communications (emails) to the greatest extent permitted under Florida Statute §740.008.
- The right to access and receive the catalog(s) of my digital assets (other than email communications) to the greatest extent permitted under Florida Statute §740.009.
- The right to access the user’s computer, phone, or similar electronic devices, and anything that the user may have stored in them
These and other powers may be granted under a power of attorney, will, or trust, but absent such direction, fiduciaries may not have access to such digital assets. If you are interested in more information regarding the protection of digital assets or in creating a comprehensive power of attorney, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help. Call Bart Chepenik at 305-613-3548 and/or Brad Trushin at 305-981-8889 for legal advice.