Pennsylvania Has A New Digital Assets Law
On January 19, 2021 a new Pennsylvania law regarding digital assets went into effect. If you do not recognize what a digital asset is or why this matters, you are not alone. The law has the jawbreaking title of the Revised Uniform Fiduciary Access to Digital Assets Act or RUFADAA. Here is what it means.
If you store your photographs in the cloud, have a Facebook or Instagram account or keep records of your financial transactions in the cloud, or if you are carrying around with you passwords to multiple accounts and apps, you are probably dealing with digital assets on a regular basis. Digital assets could include your emails, favorite videos and music or important documents not otherwise saved in hard copy format. The question is what happens if you become disabled or die and someone who might be an agent under power of attorney or an executor, personal representative, or trustee needs to access your private information. There obviously is a delicate balance between privacy and the need for disclosure.
You could keep running lists of your user names and passwords and there are apps that aggregate these also and then share that information with a third party but if a person is not authorized to access your account he or she might run into problems later if challenged.
RUFADAA was passed by the Pennsylvania State Legislature and signed into law by Governor Wolf on July 23, 2020 to take effect January 19, 2021, making us the 48th State of 50 to pass the uniform law. It does not address all problems and the language is technical but it clarifies rights and procedures in a way not handled before.
First it should be noted that whether information can be accessed can still be subject to the service agreement with the online provider. In other words, Google, Facebook and similar providers have their own rules and procedures. There could be what is referred to as “legacy contacts” who are given deference if information needs to be transitioned to another party. These are expected to have been designated by the owner of the account prior to the need to use them.
So, if anyone reading this remembers naming a “legacy” contact in the long list of statements given before you sign up for an account I for one would be curious how and when that happened. Not all providers have a system for recording this information and of those who supposedly do, the information for sign up is likely lost in the multiple pages of agreement requiring you to say “yes” before you can access the new app or platform.
Here is what you can do now.
- Make a list of all your online accounts, their online URL addresses and your user names and passwords (or you could if you wish use one of many apps on line that aggregate them all in one place and add the information there.) To remind yourself you may need to check all computers, laptops, phones and similar devices. That information should be kept in a very secure location but one where the person to whom you want to give access knows where it is. Suggestion: Also you might keep your hard copy original Will, and Power of Attorney and any other documents that must be in hard copy format in the same place.
- Review the terms of service for each account to see if you have the option to name a person authorized to access the account for you, that is, the “legacy” contact as described above. Then name the person of your choice.
- Check your Will, Power of Attorney and other legal documents to see that the authorized individuals in them are consistent with the individuals named as your contacts for the digital asset accounts.
- When you review your Will, Financial Power of Attorney and similar documents, the next time you revise your documents you can add provisions for digital assets. It is probably best first to know what they are and then develop a plan. It is not recommended that you name or list specific digital assets, apps or platforms with personalized information since this information could become readily accessible.
Ask for help if needed. Happy hunting.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.