The Indiana General Assembly updated several Indiana laws into the digital age during the 2016 legislative session. The legislature updated existing laws in the Indiana Probate Code, guardianship statutes, the Indiana Trust Code, and the Power of Attorney Act to allow trustees, decedent's personal representatives, incapacitated people's guardians, and attorneys in fact appointed under powers of attorney to access and manage digital assets for the people they serve. The legislature also added a chapter to the Indiana Code to adopt the Revised Uniform Fiduciary Access to Digital Assets Act. The whole piece of legislation becomes effective on July 1, 2016, and can be found online at: http://iga.in.gov/legislative/2016/bills/senate/253#document-07ac762f.
If you think that you have no valuable digital assets, take a moment to think about what happens when you lose your cell phone or you have to replace or clean a computer that has crashed or been hacked. We are all becoming more dependent upon web and mobile applications to order prescription medicines, shop for Christmas gifts, and communicate with family and friends around the world. That dependence will only grow more comprehensively as we become more comfortable and familiar with cloud storage and online communications.
The Revised Uniform Fiduciary Access to Digital Assets Act says, "'digital asset' means an electronic record in which an individual has a right or interest." The Act says, "'electronic' means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities." Thinking broadly about such matters, and imaginative person can expect digital assets to include photos, videos, records, and information contained in desktop computers, mobile phones, computer tablets, cloud storage, and every kind of social media website or application. Digital assets can include whimsical things like Facebook posts and more serious matters like banking records and medical records.
It would be easy for someone to assume that an attorney-in-fact, a trustee, a court-appointed guardian of an incapacitated person or a court-appointed personal representative of a decedent's estate would be able to access digital assets of the incapacitated person or deceased person. However, the right to access someone else's digital information is such a sensitive topic, that representatives of many national and international digital media companies like Facebook, twitter, and Google negotiated with Indiana lawyers and legislators during the legislation drafting process. The legislation will undoubtedly require revision and updates as problems in application of the legislation arise, but it is an important step to make digital assets more manageable and useful for everyone.
The part of the new legislation relating to the Indiana Power of Attorney Act as a whole new set of powers with respect to digital assets that attorneys can include in Indiana powers of attorney. Is important to update existing powers of attorney to incorporate the new language because a power of attorney that does not include the new digital asset powers may not be sufficient to allow an attorney-in-fact to manage digital assets effectively.
The new legislative changes to the Indiana Probate Code and Trust Code extend power to personal Representatives and trustees to manage digital assets. Those changes make it important to update wills and trusts to include language about digital assets.
As we began updating our wills, trusts, and powers of attorney to include new about digital assets, we found opportunities to refine our documents and make them much clearer and effective this spring. We encourage everyone to review their estate plans with experienced estate planning lawyers to make sure that their plans include all the latest language. We specifically encourage people to make sure that their powers of attorney reflect current and emerging issues in their lives as we recommended in our recent blog article entitled "Puny Powers of Attorney." Sure, existing plans may be good enough to do many things, but when you say "good enough," are not you usually trying to convince yourself of something that really isn't true?
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and Jeff is a Fellow of the American College of Trust and Estate Counsel. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator and was the 2014-15 President of the Indiana State Bar Association.