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By:  Cheryl A. Jones, Esquire

A rapidly growing number of people do everything online, from managing their banking to storing their photos, writing the next best-seller, or documenting the next great invention.  Yet few of them have read the Terms of Service governing access to those Facebook, LinkedIn, AOL, Gmail, and other digital media sites. (You know what the Terms of Service are – those pages of small print that you don’t read, quickly scroll through, and then agree to (“click here”), just so you can get to the good stuff.)  And access to that information by your family if you become disabled, sick, or die is most assuredly not guaranteed.

Consider the family, whose mom bought an iPad to keep her busy during chemo treatments.  She left the iPad to her children in her Will, but neglected to give them the access code.  The device is now useless (“a shiny silver placement”), as her children fight with Apple and their hyper-vigilant security team.

Or the father, who had to beg Facebook for access to the videos and photos left by his 21-year-old son who had passed away.

Now think about how difficult it would be for someone to pay your bills, or transfer funds between your accounts, or publish your future best-seller if they couldn’t access your accounts and/or electronic devices.  Although a group of lawyers are trying to formulate a uniform law regarding access to digital assets, few states have clear-cut laws allowing a “fiduciary” (a trusted family member or other individual who can step into your shoes) access to your digital identity and information if you become incapacitated or die.  A bill introduced on the topic in the Maryland Senate last year died in committee, and has yet to be resurrected.

Addressing the problem is a two-step process. First, make sure your logins, passwords, security codes, and other access information are up-to-date and stored in a safe place.  There are lots of options for this, from low-tech (think paper copy, stored someplace safe in your home) to high-tech (online password vaults and services which allow you to store endless passwords.)

Second, don’t wait for lawmakers and online providers to get around to solving the problem.  Instead, make arrangements in your estate planning documents to address your digital assets.  A properly-drafted Power of Attorney can authorize a trusted friend or family member (your “fiduciary”) to access your digital passwords and media in the event you become disabled.  A properly drafted Will or Revocable Trust agreement can empower your Personal Representative or Trustee to manage your digital footprint after your death.  And don’t wait until you have enough “stuff” or assets to get these documents in place, access to a simple iPad or Facebook video with your memories (much less the award-winning Broadway play you wrote back in college) is a priceless gift to your family members.

Cheryl A. Jones is an attorney in the Wealth Preservation Department of PK Law in Towson, MD.  She can be contacted by email at cjones@pklaw.com or 410-769-6141.

This information is provided for general information only.  None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy