2017 October 20 by Erin Nobles
When you think about your “assets,” you probably think about your 401k, your house, and your personal property. But take a moment to think about your online content: email accounts, banking and credit accounts, social media, online subscriptions, and so much more.
These are all part of your digital estate and should be addressed in your estate plan. On the most basic level, your personal representative will need access to your accounts to notify online friends of your passing, pay final expenses, and cancel subscription services. Additionally, there may be financial or sentimental value in your social media data, bitcoin wallet, and personal or business blog.
But whereas Massachusetts law is clear that a duly appointed personal representative may take possession of your physical property at your death in order to make sure your last wishes are carried out, the law is less clear about what happens to your digital assets. A recent case out of Massachusetts’ highest court illustrates the value of planning for your digital estate.
In 2006, Massachusetts resident John G. Ajemian passed away following a bicycle accident. Like many 43 year olds, he did not have a will. His brother Robert sent a request to Yahoo! for access to John’s Yahoo! email account in the hopes that John’s email history might help him wrap up his brother’s affairs.
Yahoo! denied Robert’s request, claiming that releasing the account to him would be a violation of federal digital privacy laws which prohibit disclosure of electronic communication to third parties. The Court found that an exception to the law applied, allowing for disclosure to a personal representative who could “lawfully consent” to the disclosure on the decedent’s behalf. So far, so good.
However, despite holding that Yahoo! was not barred from releasing the account, the Court noted that Massachusetts law does not compel Yahoo! to release the account if they don’t want to. Furthermore, the Court did not rule on Yahoo!’s other argument that they could always just delete the account based on the user agreement John agreed to when he opened the account rather than turn it over to a third party. Not good.
So how do you make it more likely your personal representative will be able to access the information he needs to settle your digital estate? A few ideas:
1. Keep a log of current login and password information (somewhere safe and not “hackable,” obviously) and don’t forget to update it regularly. This can be as simple as keeping a running list of passwords with your important documents or ICE Binder. Another option is to CONSISTENTLY use a password manager like True Key or LastPass. Many of these services are free for a limited number of passwords, or have a nominal fee for an unlimited number. Just make sure your future personal representative knows where, how, and under what circumstances she can access the master password.
2. Make sure your personal representative has specific authority to access your online accounts. This should be referenced in a stand-alone release of electronic information (RESI), as well as in your power of attorney, and your will. Currently, about half of the States have adopted some version of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which specifically empowers a personal representative to obtain disclosure of your online assets, exactly in the same way he or she would be able to take over paying your mortgage of selling your art collection. Until Massachusetts joins in the adoption of the UFADAA, ensuring that your estate plan grants these powers to your personal representative is a good idea.
3. Think twice before accepting that user agreement for any new app or online service provider. The user agreement with the tiny boilerplate text that you just scroll through to click “accept” may just obviate your personal representative’s rights to the account in the case of your death.
Digital assets will only continue to become a more significant part of our estates as we migrate more and more of our life online. Make sure digital estate management is part of the conversation you have with your estate planning lawyer and that he or she can speak comfortably about your options when it comes to settling your digital affairs.
Erin Nobles is a partner at Nobles & Sigman, Attorneys at Law, a virtual and concierge law practice based in Melrose, Massachusetts. She focuses her practice on estate planning, with an emphasis on the unique issues facing entrepreneurial women and younger families. Erin is on Twitter @OnDeathandTaxes.
2017 October 4 by Erin Nobles
The Equifax credit breach that was announced last month is big and scary, potentially exposing the personal data of 143 million consumers, including names, addresses, Social Security numbers, and birth dates. That’s right…basically everything the bad guys need to open credit accounts pretending to be you.
The good news is that you can take steps right now to protect your good credit. Putting a security freeze on your credit accounts will prevent anyone from opening accounts in your name without your authorization.
2017 May 10 by Erin Nobles
All this month Nobles & Sigman will be talking about why you need an Advance Directive for Health Care and how to draft one that complies with Massachusetts law. In this first article, we will explain how a living will is different from a Massachusetts health care proxy and suggest what to look for in a health care agent. In part two, to be published later this month, we will be busting some myths that might keep you from proper health care planning.
Terminology Matters: What is an Advance Directive?
An Advance Directive is the blanket term for a legally enforceable document that allows you to control how medical decisions will be made on your behalf if a doctor determines, through specific medical criteria, that you are unable to make your own decisions. This is referred to as being “incapacitated,” and it can be a temporary situation where you are expected to recover, or a permanent condition, from which recovery is unlikely. Without an Advance Directive, your doctor may be required to provide you with medical treatment that you would have otherwise refused.
The good news is, it is relatively easy to write or to change an Advance Directive. The law presumes that all adults are competent to make and to revoke an Advance Directive, so any adult over 18 may write one. Depending on your state law, an Advance Directive may contain two elements: (1) a living will and (2) a health care proxy (HCP). (We’ll talk more below about how some states only recognize either the living will or the HCP). The HCP is sometimes called the health care power of attorney, and the person nominated to be the health care proxy is sometimes called the health care surrogate.
Every state has its own Advance Directive statute and body of case law governing how the statute will be interpreted by a judge. It is important to note that the Advance Directive will only be used if you become incapacitated and need medical intervention. If you regain your ability to make medical decisions, the Advance Directive becomes moot and you are once again your own real-time health care advocate. If you pass away, the Advance Directive ceases to have any legal effect.
In many states, the living will and the HCP can be used together to create a comprehensive and legally enforceable statement of end of life wishes and a grant of decision making authority. A few states (including Massachusetts) recognize only the HCP and not the living will. If you live in or spend a good deal of time in a state holding this minority view, you will want to make sure your Advance Directive is compliant with that state’s law.
The Living Will with Health Care Proxy Delegation
A living will should not be confused with a last will and testament (usually just called a “will” these days). Your will governs the disposition of your property after you die. A living will is a document that states the types of medical interventions that you do or do not want in specific situations.
For example, you may state in your living will that you do not want a feeding tube to be placed if doing so would only prolong the dying process. You may also more generally specify in your living will that you do not want your life to be artificially prolonged and that you want to be allowed to die naturally with only the administration of medication for comfort care. In the alternative, you may wish to make it clear that you DO in fact wish any and all measures be taken to save your life. As long as what you are requesting is legal, the choice is yours.
Individual states require different formalities in order for the living will to be effective. Although some states do not require that the living will be notarized, it is a good idea to execute the document with as much formality as possible (such as a notary and at least two witnesses) in case you become incapacitated in a state that requires these formalities.
Many living wills contain the HCP, or a clause appointing a person to act on your behalf as your agent in medical decision making. If decisions to be made are outside the scope of what you have outlined in your living will, your health care agent should be permitted to make decisions for you based on this grant of authority.
The HCP is the only Advance Directive legally enforceable in the Commonwealth. If your living will from another state provides for the appointment of a health care agent, it is likely that this component of your living will may be enforced in Massachusetts.
Choosing a Health Care Agent in Massachusetts
Massachusetts residents may be surprised to learn that living wills are not enforceable in the Commonwealth, which means that doctors and courts do not have to follow them. Instead, as stated above, Massachusetts law allows citizens to nominate a health care agent in a stand-alone document, simply called the health care proxy or HCP. You do not need an attorney to exercise the HCP and Massachusetts does not even require a notary to witness your signature.
An HCP can give you peace of mind that your wishes will be carried out, provided you choose the right person to be your agent. Under Massachusetts law, a properly drafted HCP gives the person you choose near-absolute authority to make decisions for you. But how do you know that you’ve made the right choice?
First of all, choose someone who understands your values, and perhaps most importantly, someone who would enforce your values even if they conflicted with their own. Be sure to choose a back-up or successor agent, in case of a common disaster with your initial agent. Make sure that you have regular communications with your agent to ensure that you remain on the same page regarding end of life treatment. If someone asks you to be his or her HCP, think about what it would mean to make these sorts of decisions. Make sure you understand what the other person wants.
Many Massachusetts residents elect to complete a living will as a personal wishes statement, to be used by their HCP in guiding decision making. Although the personal wishes statement is not legally binding, it may be important if you believe that there could be differences of opinion among family members who might challenge the decisions of your HCP.
If you are interested in writing your Advance Directive, or revising one previously drafted, it makes sense to contact a qualified attorney. Our firm focuses on helping women entrepreneurs to create, nurture, and sustain their professional legacies. We believe that a thoughtfully drafted estate plan – including an advance directive – is an important component of personal legal wellness.
To learn more about Nobles & Sigman, please visit us at www.noblesandsigman.com.
© 2017 Erin Nobles. All Rights Reserved. This article is not intended to be legal advice.