Online banking and electronic communication are ubiquitous in today’s world. Consequently, the need for an agent under a durable power of attorney to have specific powers to deal with digital assets and electronic communication is increasingly important. What type of digital assets should an agent under a durable power of attorney be able to access? Are there any protections or assurances which guide an agent’s access to digital assets?
In 2017, Utah adopted the Uniform Fiduciary Access to Digital Assets Act (Digital Assets Act) which is focused on disclosure of digital assets and electronic communications to “fiduciaries”, including agents under durable power of attorney documents.
Utah Code Annotated Sec. 75-11-102 (10)(a) defines a “digital asset” as an electronic record in which an individual has a right or interest, but it does not include the underlying asset unless the asset itself is the electronic record. Digital assets may include emails sent or received; text messages sent or received; other digital communications sent or received; digital music; digital photographs; digital videos; software licenses; social network accounts; file sharing accounts; ; personal and commercial websites; tax preparation service accounts; online store accounts; affiliate marketing accounts; and other types of online accounts.
The Digital Assets Act does offer some guidance to agents requesting disclosure of digital assets from a custodian. The Digital Assets Act, defines an agent as a “fiduciary” which means that the agent must managing all digital assets with a duty of care, loyalty and confidentiality. U.C.A. Sec.75-11-115((1).
A good durable power of attorney document should directly address the scope of digital assets used by the principal and also carefully define the duties of the agent with access to the digital assets.