What Makes up Your Digital Estate?

Duties and rights of attorneys and committees with respect to digital assets

Attorneys and committees will generally have greater legal rights for dealing with digital assets of the incapable adult for whom they act than will personal representatives of a deceased person. This is because all contractual rights of the incapable adult continue in full force and may generally be exercised by the attorney or committee on behalf of the incapable adult. However, if the adult has not kept up‐to‐date and accessible records of account information, the attorney or committee may still run into practical challenges in gaining access to assets or information.

While enduring powers of attorney may be limited to specific powers, most enduring powers of attorney grant general powers to the attorney. A general power of attorney authorizes the attorney to do anything that the adult may lawfully do by an agent in relation to the adult’s financial affairs.15 In addition, section 32 of the Power of Attorney Act provides that an attorney may request information and records relating to the adult who granted the power, if the information or records relate to the incapability of the adult, or to any area of authority granted to the attorney. The Act states that where the attorney has the power to request information or records, the attorney has the same right to those information and records as does the adult. These powers overlap with the powers granted to powers of attorney with respect to personal information under the PIPA Regulations, as discussed above in Part II.E “Privacy Legislation”.

A person appointed as committee of the estate of a patient is granted “all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind.” Based on the foregoing, an attorney exercising authority under a general enduring power of attorney and an estate committee should have the right to access all digital information and services to the same extent the donor or patient had such rights. If the attorney or committee has not been left with passwords for any CADA, they should have the right to require the service provider to provide them with the password.

Attorneys and committees must manage the affairs of the adult in the manner that is in the adult’s best interests.

Eleanore

Eleanore

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