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Data Delegates: Who Speaks For Your Online Self?

Arizona Estate Planning attorneys are taking notice of new laws which define the rights of administrators over a deceased or incapacitated person's digital assets. For many people, digital assets, like email accounts, social media, and intangible assets like airline miles are an important and sometimes valuable part of their lives and until recently there was no clear mechanism for accessing those assets if the person was incapacitated or deceased. Many custodians of data had policies which conflicted with the user's wishes, or no policy at all.

With the enactment of the Fiduciary Access to Digital Assets Act (A.R.S. §14-13101 et seq.) this year, each custodian of digital assets and records is still free to allow users to decide for themselves who should be able to access their data and what those people should be allowed to do with it, as long as the user makes those choices clear to the custodian. Since not every custodian has or will set up a means to do this, the Act's provisions which allow people to make instructions in their Estate Planning documents are likely to be important in the years to come.

The most important instructions, of course, are those which define who is empowered to make decisions about a person's digital assets when that person cannot do so themselves. As long as your Trust, Will, and Power of Attorney mention access to digital assets, those documents should also enable your administrators to access your data, so in one sense not very much needs to change about those documents. On the other hand, digital assets do present unique questions that are worth thinking about when creating or updating a Trust, Will, or Power of Attorney.

The Fiduciary Access to Digital Assets Act defines multiple levels of access that a proxy might be granted. The basic level is just a summary or catalog of the asset but not the asset itself. For example, someone might allow their agent to see that they have unread emails in their inbox and save or delete them but not allow the agent to read the emails themselves. The Act also accommodates users who wish to allow broader access so that their agents can access the user's data just the user could. At times it may also be useful to restrict an agent's access to a certain time period or type of data. It's also a good idea to give an agent guidance about which digital assets should be shared and which should be kept private and deleted once the agent has no more need for them.

Whether you have Estate Planning documents that are several years old and are interested in updating them or are creating an Estate Plan for the first time, it's a good idea to get help from an Arizona Estate Planning attorney familiar with the latest developments in the law, such as the Fiduciary Access to Digital Assets Act.

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