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Privacy Legislation for electronic estate

Personal representatives should also be aware of their rights to personal information of the deceased under privacy legislation. Privacy legislation may be raised by providers of electronic services as a reason they are not able to provide a personal representative with access to the account of a deceased. In addition, a personal representative may have need to access or correct personal information on behalf of the deceased. The Personal Information Protection Act (British Columbia) (PIPA) governs the collection, use and disclosure of personal information by private organizations in British Columbia.

Other provinces are governed either by similar provincial legislation or by similar provisions in the federal Personal Information Protection and Electronic Documents Act (PIPEDA). PIPA requires that private organizations obtain the informed consent of individuals for the collection, use and disclosure of personal information. Under section 23 of PIPA, an individual may require an organization to provide him or her with the individual’s personal information under the organization’s control, information about how that personal information is and has been used, and the names of persons to whom the information has been disclosed. The requesting individual then has the right under section 24 to correct any information held by the organization that is incorrect. The Personal Information Protection Regulations made under PIPA specify who may act on behalf of deceased persons and other individuals.

Under section 3 of the Regulations, a personal representative of a deceased person may exercise the rights of the deceased individual under the Act, and give or refuse consent with respect to personal information of the deceased under the Act. If there is no personal representative appointed, then the “nearest relative” of the deceased has the same rights. The Regulations contain a prioritized list to define “nearest relative”.

Under section 2 of the Regulations, a committee, attorney acting under an enduring power of attorney, a litigation guardian, or a representative under the Representation Agreement Act are also given full power to exercise the privacy rights of the individual whom they represent. Because no priority is granted as between these roles, one adult patient may have two or more representatives authorized to exercise their privacy rights under PIPA.


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