Template of Digital Property Provision for a Power of Attorney

(template)  Generally the following provision will be inserted as a subparagraph in the section of a Power of Attorney which explicitly enumerates the powers granted to a Attorney in Fact.

Power With Regard to Digital and other Intangible Property.

In the event that I own an interest in any form of electronic, digital or intangible assets (including but not limited to leaseholds, licenses, contractual rights, computing devices, data storage devices, a domain names, user accounts, email accounts, digital pictures, digital music, or any other form of electronically stored information (collectively, “Digital Assets”)), then in addition to any other powers granted to my Attorney in Fact under this Durable Power of Attorney, or which may otherwise be provided for under applicable law, my Attorney in Fact shall have the following powers:

(1)   the power to obtain copies of any electronically stored information of mine from any person or entity that possesses, custodies, or controls that information, including but not limited to entities that may be subject to the Stored Communications Act under or similar state laws that may then be in effect;

(2)   power to decrypt any encrypted electronically stored information of mine or to bypass, reset, or recover any passwords or other kind of authentication or authorization necessary to gain access to access the Digital Assets;

(3)   the power to waive any confidentiality that I may have had under any Terms of Service Agreement or Privacy Policy that I had previously agreed to in regards to any Digital Asset, to the extent allowable under such Terms of Service or Privacy Policy;

(4)   all other powers that an absolute owner of a Digital Asset would have, and any other powers appropriate to achieve the proper investment, management, and distribution of my Digital Assets, including the power to employ any consultants or agents to advise or assist the Attorney in Fact in exercising the powers listed above.

In furtherance of such powers which are granted to the Attorney In Fact above, I hereby authorize, to the extent permitted by federal and state law, including the Electronic Communications Privacy Act of1986 (which includes the Stored Communications Act), as amended, and the Computer Fraud and Abuse Act of 1986, as amended, any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to my Attorney in Fact (1) any electronically stored information of mine; (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service; and (3) any record or other information pertaining to me with respect to that service. This authorization is to be construed to be my lawful consent under the Stored Communications Act, as amended, and any other applicable federal or state data privacy law or criminal law. The terms used in this paragraph are to be construed as broadly as possible, and the term “user account” includes without limitation an established relationship between a user and a computing device or between a user and a provider of Internet or other network access, electronic communication services, or remote computing services, whether public or private.

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Template of an Authorization and Consent for Release of Electronically Stored Information

(template)

I, __________________________________________ , hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to my then-acting fiduciaries at any time: (1) any electronically stored information of mine, (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service, and (3) any record or other information pertaining to me with respect to that service. The terms used in this authorization are to be construed as broadly as possible, and the term “fiduciaries” includes a guardian or conservator appointed for me, a trustee of my revocable trust, an Attorney in Fact under a valid Power of Attorney, and a Personal Representative (executor) of my estate.

This authorization is to be construed to be my lawful consent under the Electronic Communications Privacy Act of 1986 (which includes the Stored Communications Act), as amended, the Computer Fraud and Abuse Act of 1986, as amended, and any other applicable federal or state data privacy law or criminal law. This authorization is effective immediately. Unless this authorization is revoked by me in writing while I am competent, this authorization continues to be effective during any period that I am incapacitated and continues to be effective after my death.

Unless a person or entity has received actual notice that this authorization has been validly revoked by me, that person or entity receiving this authorization may act in reliance on the presumption that it is valid and unrevoked, and that person or entity is released and held harmless by me, my heirs, legal representatives, successors, and assigns from any loss suffered or liability incurred for acting according to this authorization. A person or entity may accept a copy or facsimile of this original authorization as though it were an original document.

Dated this_______ day of_________________________ , 20__

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Template of a Will Clause For Digital Assets

(template)

My Trustee may access, handle, distribute, and dispose of my digital assets, and may obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets. My Trustee may engage contractors or agents to assist my Trustee in accessing, handling, distributing, and disposing of my digital assets. [OPTIONAL: Without restricting my Trustee, it is my wish that my Trustee engage to assist the Trustee in accessing, handling, distributing, and disposing of my digital assets.]

If I have prepared a memorandum, which may be altered by me from time to time, with instructions concerning my digital assets and their access, handling, distribution, and disposition, it is my wish that my Trustee and beneficiaries follow my instructions as outlined in that memorandum.

For the purpose of my Will, “digital assets” includes the following:

  1. Files stored on my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device; and
  2. Emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items, regardless of the ownership of any physical device upon which the digital item is stored.
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Template of a Power of Attorney clause for Digital Assets

(template) Digital Assets. Without limiting the other powers granted to my Attorney, my Attorney shall have

  1. the power to access, use, and control my digital devices, including but not limited to desktop computers, laptop computers, tablets, mobile telephones, smartphones, peripherals, storage devices, and any similar digital device which currently exists or may exist as technology develops for the purpose of accessing, modifying, deleting, controlling, or transferring my digital assets, and
  2. the power to access, modify, delete, control, and transfer my digital assets, including but not limited to my emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, and (iii) the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets described above.