Digital Assets and Incapacity Planning

A power of attorney can give a trusted agent authority to manage digital assets.

You can use a power of attorney to give a trusted agent authority to manage your digital assets. And if you have serious or specific concerns about what will happen to your digital assets if you become incapacitated, you might also give your agent login information and instructions about what do with your accounts.

Think about the parts of your life that you live online. Some of these connections are obvious—your email accounts, online banking apps, social media profiles. Now keep digging. What about your Audible subscription, your Nextdoor account, your Vimeo profile, and that Tumblr blog you started five years ago but no longer use?

You get the point.

The list of potential digital entanglements—more politely called digital assets—seems to get longer every day.

Who Manages Digital Accounts If You’re Incapacitated?

You may already have considered what will happen to your digital legacy when you die. Maybe you’ve even done some planning for the inevitable. But what if you get sick or hurt and can’t manage your digital life for weeks, months, or perhaps even years?

To prepare for the unexpected, you can (and should) prepare a document called a durable power of attorney for finances in which you name a trusted person—known as your agent or attorney-in-fact—to take care of important financial and practical tasks for you.

However, even a power of attorney may not give your agent guaranteed access to your digital accounts. (For some assets, that may be exactly how you want it. We’ll discuss privacy in a minute.) Whether your agent can manage your digital assets depends in part on the state where you live—but mostly on the steps you take now to plan for incapacity later.

State Law on Digital Assets and Incapacity

Many states have recently passed a law that allows agents with a power of attorney to manage digital assets. The law is called the Revised Uniform Fiduciary Assets Act (RUFADAA), and it says that your agent may access your online accounts and electronic communications if a power of attorney specifically gives them the right to do so.

The twist is that not every state’s RUFADAA covers powers of attorney. A few states, including California, have left agents out of the picture, giving access to your legal representatives only after you die. (You can find the law for your state by visiting the website of the National Conference of State Legislatures.)

Whether or not your state’s digital assets law covers powers of attorney, you can take a few steps to be sure your agent can take care of digital tasks.

Powers of Attorney and Digital Assets

No matter where you live, if you want someone you trust to manage all or some of your digital assets, your best bet is to:

  1. Use a durable power of attorney for finances to give someone you trust the power to manage your digital assets. (You can use Nolo’s WillMaker & Trust software to make a durable power of attorney that includes this power.)
  2. In a separate document, provide information for your agent about how to access the accounts you’ll want them to manage—usernames, passwords, and so on.

The second step is important because, even in the states that have laws supporting the digital assets power, agents still struggle with companies that actively resist providing access and turning over account information. During these years while the law is new and in flux, giving your agent direct access to your login information will smooth their access to your digital accounts.

If you decide to give login information to your agent, be sure to store it in safe place and tell your agent where to find it if the time comes—and remember to update your information as it changes.

You may also consider writing your agent a note about what you’d like your agent to do with your digital property. For example, you could ask your agent to respond to certain types of email, update the amount of your automatic online payments to reflect any annual increases in your bills, or deactivate your Facebook account.

If You Prefer Digital Privacy

If you know you don’t want your agent to have broad access to your digital accounts and electronic communications, you can skip the digital assets power when you make a durable power of attorney. If there are just a few digital tasks you’d like an agent to handle in the event of your incapacity—like manage your online banking or brokerage accounts—make sure your agent knows how to find and log in to those accounts if necessary.

Be aware, however, that the law is moving toward giving legal representatives broad powers over digital assets—particularly after death. If there’s anything you really don’t want others to see, you might want to tackle some online cleanup and organization with that in mind.

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