The Fiduciary Access to Digital Assets Act in Michigan:Now That We Have it, What Can We Do?

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THE Fiduciary Access to Digital Assets ACT IN MICHIGAN:NOW THAT WE HAVE IT,WHAT CAN WE DO?

Howard H. CollensGalloway and Collens, Pllc

Photo Sharing You probably already know that your computer's hard drive isn't the ideal location for your cherished images. Hard drives routinely crash, sending the data stored on them into the abyss. Many people are storing their pictures online or in the cloud. The only real question then, is this: What are the best ways to store and share your photos online?

Early years spent on Walloon Lake. Died 1961. Nick Adams published in 19723

What Happens When a Person Becomes Incapacitated or Dies?

Could someone else, acting on behalf of the incapacitated client, gain access to the account and photos?

What if the client was deceased?

Access to Digital Assets would be challenging, if not impossible, without a Fiduciary Access to Digital Assets law

Your Digital Afterlife While you may have many collections, all the things you own combined create a greater personal collection where the theme is you. You are the arbiter of what belongs or does not belong. Increasingly, the things you gather for that collection are digital. Evan Carroll, Author of Your Digital Afterlife

http://www.yourdigitalafterlife.com/book/

Early years spent on Walloon Lake. Died 1961. Nick Adams published in 19727

What are Digital Assets?

Digital assets come in a variety of forms, and are constantly changing, along with technology and social trends.

An individual may have a property ownership interest in an asset, or merely a license.

The term digital assets means, but is not limited to, files, including but not limited to, emails, documents, images, audio, video, and similar digital files which currently exist or may exist as technology develops or such comparable items as technology develops, stored on 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 or such comparable items as technology develops, regardless of the ownership of the physical device upon which the digital asset is stored.Excerpt from: The Elder Law Report, Vol. XXV, Number 1

Categories of Digital Assets

PersonalStored on computers, smart phones, or other devices, or are uploaded to a Web site or digital servicePhotographs, videos, emails, and music playlist

Social MediaMay involve photos, videos and other electronic files stored on these accounts

FinancialOnline banking, online bill-paying activitiesOnline accounts with no connection to a brick-and-mortar establishment (Amazon, eBay, PayPal and E*TRADE, BitCoin)

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

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

July 2014 the ULC introduced 1st version of a Uniform Fiduciary Access to Digital Assets Act (UFADAA)

Only Delaware adopted law based on 2014 version

In July 2015, the ULC developed a revised UFADAA

Revised Uniform Fiduciary Access to Digital Assets::

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

Revised Uniform Fiduciary Access to Digital Assets:

If widely adopted, provides consistency throughout the countryCurrently, there is a hodge-podge approach

Authorizes access by:Agent under Power of AttorneyConservatorPersonal RepresentativeTrustee

Revised Uniform Fiduciary Access to Digital Assets:

Revised UFADAA requires the consent of the user before granting access to contents of digital communications.

Priority to wishes expressed through tools like Googles Inactive Account Manager and Facebooks Digital Legacy Contact

Service providers Terms of Service taken into account

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Revised Uniform Fiduciary Access to Digital Assets:Does not apply to employer email systems or assetsDefers to account holder/client intent and privacy desiresEncourages custodian complianceProtects fiduciaries, custodians and content providersStates are starting to enact the RUFADAA

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RUFADAA Updates

Twenty-one states have currently passed the Fiduciary Access to Digital Assets Act. California also passed a partial version that only deals with decedents estates.

Five states have RUFADAA bills introduced in 2017.

Twenty-nine states have plans to introduce a RUFADAA bill in 2017. If they are all enacted, we will have near-universal enactment in the U.S. - Benjamin Orzeske, Chief Counsel of the Uniform Law Commission

RUFADAA Enactment Map

http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,%20Revised%20(2015)

Michigan and FADAA

HB 5034 was introduced, October 28, 2015 by Representative Anthony Forlini

Based on the ULC revised approach, HB 5034 offered a comprehensive approach to Fiduciary Access to Digital Assets for Michigan

Joint Efforts of Elder Law and Disability Rights Section and Probate and Estate Planning Sections to represent the interests of end users

Michigan and FADAA

HB 5034 became law in March 2016

Effective as of June 27, 2016

Codified at MCL 700.1001 et seq.

http://www.legislature.mi.gov/(S(lbtllxurzntu2irpvxgxznb3))/mileg.aspx?page=getObject&objectName=mcl-Act-59-of-2016

MichigansFiduciary Access to Digital Assets Act

Per MCL 700.1003, FADAA Applies to:

Fiduciary acting under a will or power of attorney

Personal representative acting for a decedent estate

Proceeding involving a conservator

Trustee acting under a trust

Digital custodian if the user resides in this state

Does not apply to a digital asset of an employer used by an employee in the ordinary course of business


Definitions:

Conservator - Expanded to include plenary guardian, partial guardian, special fiduciary, special conservator and a parent of a minor child. MCL 700.1002(e)

Digital Asset - An electronic record in which a user has a right or interest. Does not include an underlying asset or liability unless the asset or liability is itself an electronic record. MCL 700.1002(j)


Catalogue of electronic communications - Information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person. MCL 700.1002(d)


Content of electronic communication - Information concerning the substance or meaning of an electronic communication that has been sent or received by a user, the information is in electronic storage by a digital custodian providing an electronic communication service to the public or is carried or maintained by a digital custodian providing a remote-computing service to the public, and the information is not readily accessible to the public. MCL 700.1002(f)


Online tool An electronic service provided by a digital custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the digital custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person. MCL 700.1002(x)

A user may use an online tool to direct the digital custodian to disclose or not to disclose some or all of the users digital assets, or may prohibit or direct the digital custodian in a will, trust or power of attorney.

The users direction using the online tool or estate planning document overrides a contrary provision in a terms of service agreement. MCL 700.1004


HOW MUCH ACCESS DOES THE DIGITAL CUSTODIAN NEED TO PROVIDE? MCL 700.1006

At the Digital Custodians SOLE DISCRETION, they mayGrant a fiduciary or designated recipient full access to the user's account.Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged. Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the digital custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.


HOW MUCH ACCESS DOES THE DIGITAL CUSTODIAN NEED TO PROVIDE? MCL 700.1006

A digital custodian may assess a reasonable administrative charge

A digital custodian is not required to disclose under this act a digital asset deleted by a user

If only a request for some but not all of the digital assets and if segregation would impose an undue burden on the digital custodian, the digital custodian may seek a court order to disclose some, all or none of the digital assets. Allows for in camera review.


Accessing Content vs. CatalogueMCL 700.1007Personal Representatives Content of Digital AssetsIf a deceased user consented to or a court order directs the disclosure, a digital custodian shall disclose to the personal representative the content of electronic communication if the personal representative gives the digital custodian all of the following:


A written request for disclosureA certified copy of the death certificate of the userA certified copy of the letters of authority or other court orderUnless the user provided direction using an online tool, the users will, trust, power of attorney or other record of the users consent to disclosureIf requested by the digital custodian, any of the following:Evidence linking account to the userA finding by the court that the user had a specific account with the digital custodian.


Accessing Content vs. CatalogueMCL 700.1008

Personal Representatives Catalogue of Digital AssetsUnless the user prohibited disclosure or a court directs otherwise, a digital custodian shall disclose to the personal representative a catalogue of electronic communications sent or received by the user if the personal representative gives the digital custodian all of the following:


A written request for disclosureA certified copy of the death certificate of the userA certified copy of the letters of authority or other court orderIf requested by the digital custodian any of the following:Identifying information for the users accountEvidence linking the account to the userAn affidavit stating that disclosure is reasonably necessary for administration of the estateA finding by the court that the user had a specific account with the digital custodian


Power of Attorney Content of Digital Assets MCL 700. 1009

To the extent a power of attorney grants an agent authority over the content of electronic communications, and unless directed otherwise by the principal or the court, a digital custodian shall disclose to the agent the content of electronic communications if the agent gives the digital custodian all of the following:An affidavit from the agent under MCL 700.5505If requested by the digital custodian, any of the following:Identifying information for the users accountEvidence linking the account to the user


Power of Attorney - Catalogue of Digital Assets MCL 700.1010

Unless otherwise ordered by the court, directed by the principal or provided by a power of attorney, a digital custodian shall disclose to an agent a catalogue of electronic communications sent or received by the principal, if the agent gives to the digital custodian all of the following:A written request for disclosureAn original copy of the power of attorneyAn affidavit from the agent under MCL 700.5505If requested by the digital custodian, any of the following:Identifying information for the users accountEvidence linking the account to the user


Original User Trustee Any Digital Assets MCL 700.1011Unless otherwise ordered by the court or provided in a trust, a digital custodian shall disclose to a trustee that is an original user of an account, any digital assets of the account held in trust, including catalogue and content.


Non Original User Trustee Content of Digital Assets MCL 700.1012Unless otherwise ordered by the court, directed by the user, or provided in a trust, a digital custodian shall disclose to a trustee that is not an original user of an account, the content of electronic communication, if the trustee gives to the digital custodian all of the following:


A written request for disclosureA certificate of trust under MCL 700.7913 that includes consent to distribute contents of electronic communications to the trustee.If requested by the digital custodian, any of the following:Identifying information for the trusts accountEvidence linking the account to the trust


Non Original User Trustee Catalogue of Digital Assets MCL 700.1013Unless otherwise ordered by the court, directed by the user, or provided in a trust, a digital custodian shall disclose to a trustee that is not an original user of an account, a catalogue of electronic communication in which the trust has a right or interest, if the trustee gives to the digital custodian all of the following:


A written request for disclosureA certificate of trust under MCL 700.7913A certification of the trustee that the trust exists and that the trustee is currently acting trustee of the trustIf requested by the digital custodian, all of the following:Identifying information for the trusts accountEvidence linking the account to the trust


Conservator MCL 700.1014 After an opportunity for a hearing, the court may grant a conservator access to the digital assets of a protected person.

Unless otherwise ordered by the court or directed by the user, a digital custodian shall disclose to a conservator the catalogue of electronic communications not the content, in which the protected person has a right or interest if the conservator gives digital custodian all of the following:


A written request for disclosureA certified copy of the court order that gives the conservator authority over the digital assets of the protected personIf requested by the digital custodian, any of the following:Identifying information for the protected persons accountEvidence linking the account to the protected person

A conservator may request the digital custodian to suspend or terminate an account of a protected person for good cause. Request must be accompanied by certified copy of letter of authority.


Fiduciary duties and authority as to digital assets are described in MCL 700. 1015

Digital custodians shall comply with the requests for disclosure by Fiduciary within 56 days of receipt of required information. MCL 700.1016(1)

If the digital custodian fails to comply, the fiduciary may petition the court for an order directing compliance. MCL 700.1016(1)

A fiduciary as well as digital custodian are immune from liability for any action done in good faith in compliance with this act. MCL 700.1015(8) and 700.1016(9)


A digital custodian may require a fiduciary or designated recipient who requests disclosure or termination of an account to obtain a court order that: Specifies that an account belongs to the protected person or principal.

Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure.

Contains a finding required by law other than this act. MCL 700.1016(8)


An interested person may petition the probate court to limit, eliminate, or modify the personal representative's powers with respect to the decedent's digital assets.

Hearing shall be heard within 14 and 56 days of filing the petition.

MCL 700.1017 is a Michigan specific provision not found in the RUFADAA.

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

Ask to have profile removed or deletedWe will process certain special requests for verified immediate family members, including requests to remove their loved one's account. This will completely remove the profile and all associated content from Facebook, so no one can view it.Need to submit The deceased's birth certificateThe deceased's death certificateProof of authority under local law that you are the lawful representative of the deceased or his/her estate

From: Facebook

Facebook

Legacy Contact is someone you choose to look after your account if it's memorialized. Once your account is memorialized, your legacy contact will have the option to do things like:

Write a pinned post for your profile (ex: to share a final message on your behalf or provide information about a memorial service) Respond to new friend requests (ex: old friends or family members who weren't yet on Facebook)Update your profile picture and cover photo

You also have the option to allow your legacy contact to download a copy of what you've shared on Facebook, and we may add additional capabilities for legacy contacts in the future.

Your legacy contact can't:

Log into your accountRemove or change past posts, photos and other things shared on your TimelineRead messages you've sent to other friendsRemove any of your friends

From: Facebook

Twitter

In the event of the death of a Twitter user, we can work with a person authorized to act on the behalf of the estate or with a verified immediate family member of the deceased to have an account deactivated.

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 certificateA copy of your government-issued ID (e.g., drivers license)A signed statement including:Your first and last nameYour email addressYour current contact informationYour relationship to the deceased user or their estateAction 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.A link to an online obituary or a copy of the obituary from a local newspaper (optional)

From Twitter: How to Contact Twitter About a Deceased User

Twitter

Please send us the documentation by fax or mail to the following address:Twitter, Inc.c/o: Trust & Safety1355 Market St.,Suite 900San Francisco, CA94103Fax : 1-415-865-5405

*Please note: We are unable to provide login information for the account to anyone regardless of his or her relationship to the deceased.*

From Twitter: How to Contact Twitter About a Deceased User

Google Inactive Account Manager

Can be set up through Google Settings

Lets Google know what to do with some or all Google related accounts after a specified period of inactivity

Services that can be controlled: +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube

Google sends a warning text and email before action is taken

Can have Google delete the accounts

What about items bought on Google Play?

Provide AccessCreate a document and note if the property is personal or has monetary valueExamples of note

Excerpt from: The Trust Advisor

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

Inventory ChecklistMake sure you include everything from your computer, other devices, and the virtual world (i.e. cloud, internet)All email accountsAll social websites you participate inFinancial and commerce accountsMake a simple spreadsheet with passwords to access assets

Digital Assets InventoryAssetAccessWishesNameContentsLocationUsernamePasswordInstructionsRecipient

Who is in Charge?After you inventory your digital assets, you must decide who to give the access to in the event of your death or disability.

Make sure you indicate whether you want your digital executor to archive your content, share your content with others, or delete your 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).

Where Should I Note My Intent?Powers of Attorney

Sample language: Electronic and Social Media. My Agent shall have full access to the content of electronic communications and catalogue of electronic communication and to all of my digital assets. My Agent shall have the authority to obtain, use or change user names and passwords; to manage, add, delete, modify, curate, archive, maintain, and increase or limit access to my digital assets; to transfer ownership rights of my digital assets; to maintain, modify and delete digital assets. These powers shall apply to all social media, financial and cloud storage accounts, including, but not limited to, iTunes, Pandora, Kindle, Amazon Prime, Google Play, Spotify, Tidal, Netflix, Hulu and all other online content vendors, Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and financial institution on-line access points, data and photo archiving providers, blogs and websites, whether in my individual name, through a business, through a pseudonym or anonymously. My Agent shall have authority to exercise all privacy rights to limit or grant access to my digital assets, including search history, cookies and other plug-in data, cached images and files, and all other forms of browsing or transaction records. I grant to my Agent all authority and power permitted under the Michigan Fiduciary Access to Digital Assets Act, MCL 700.1001, et seq., as amended, or UFADAA as it may be enacted in any state where I or my digital assets may be located.

Where Should I Note My Intent?

Last Will and Testament

Sample Language: To access the content of electronic communications and catalogue of electronic communication and to all of my digital assets; to obtain, use or change user names and passwords; to manage, add, delete, modify, curate, archive, maintain, and increase or limit access to my digital assets; to transfer ownership rights of my digital assets; to maintain, modify and delete digital assets. These powers shall apply to all social media, financial and cloud storage accounts, including, but not limited to, iTunes, Pandora, Kindle, Amazon Prime, Google Play, Spotify, Tidal, Netflix, Hulu and all other online content vendors, Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and financial institution on-line access points, data and photo archiving providers, blogs and websites, whether in my individual name, through a business, through a pseudonym or anonymously. The Fiduciary shall have authority to exercise all privacy rights to limit or grant access to my digital assets, including search history, cookies and other plug-in data, cached images and files, and all other forms of browsing or transaction records. The Fiduciary shall have all authority and power permitted under the Michigan Fiduciary Access to Digital Assets Act, MCL 700.1001, et seq., as amended, or UFADAA as it may be enacted in any state where I or my digital assets may be located.


Revocable Living Trust

Sample Language: To access the content of electronic communications and catalogue of electronic communication and to all of my digital assets; to obtain, use or change user names and passwords; to manage, add, delete, modify, curate, archive, maintain, and increase or limit access to my digital assets; to transfer ownership rights of my digital assets; to maintain, modify and delete digital assets. These powers shall apply to all social media, financial and cloud storage accounts, including, but not limited to, iTunes, Pandora, Kindle, Amazon Prime, Google Play, Spotify, Tidal, Netflix, Hulu and all other online content vendors, Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and financial institution on-line access points, data and photo archiving providers, blogs and websites, whether in my individual name, through a business, through a pseudonym or anonymously. Trustee shall have authority to exercise all privacy rights to limit or grant access to my digital assets, including search history, cookies and other plug-in data, cached images and files, and all other forms of browsing or transaction records. Trustee shall have all authority and power permitted under the Michigan Fiduciary Access to Digital Assets Act, MCL 700.1001, et seq., as amended, or UFADAA as it may be enacted in any state where I or my digital assets may be located.


General Assignment

Sample Language: To the extent possible, this assignment shall also act as delivery of all of my social media accounts, including but not limited to Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and financial institution on-line access points, any and all data and photo archiving sites, blogs and websites, email and all other digital assets including both the catalogue of electronic communications and content of electronic communications of mine whether I am maintaining such accounts in my individual name, through a pseudonym or anonymously.

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 profilesThere are websites specifically designed to release account information after death to designated beneficiaries but they may be here today gone tomorrow.

Suggest clients protect significant data with strong encryption

Test Out Our New Law

Now that FADAA is here in Michigan:What Works?What Needs Improving?Are we in Probate Court more or less over these issues?I would love to hear how you and your clients experience Fiduciary Access to Digital Assets

Howard H. CollensGalloway and Collens, PLLC26075 Woodward Ave, Suite 200Huntington Woods, Michigan 48070248.545.2500GallowayCollens.comHoward@GallowayCollens.comTwitter: @howardcollens @probatelawmi @realestatelawmi