MD Senate Bill 239

Legislation

State: Maryland
Signed: May 10, 2016

Effective: October 01, 2016
Chapter: 364

Summary

Senate Bill 239 enacts he Uniform Fiduciary Access to Digital Assets Act (UFADAA), allowing an individual to grant the power of accessing and controlling the individual’s electronic communications and digital assets in a power of attorney that must be acknowledged before a Notary.

Affects

Adds Sections 15-601-15-620 to the Annotated Code of Maryland (Estates and Trusts Article).

Changes

Provides that a user may use an online tool to direct a custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
Provides that if the online tool allows the user to modify or delete a direction at any time, a direction in an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
Provides that if the user does not use an online tool to give direction or if the custodian fails to provide an online tool, the user may, in a will, trust, power of attorney, or other record, allow or prohibit disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
Adds to the statutory power of attorney form the following power: “In accordance with the Maryland Fiduciary Access to Digital Assets Act, access and take control of (1) the content of any of my electronic communications, (2) any catalogue of electronic communications sent or received by me, and (3) any other digital asset in which I have a right or interest.”

Analysis

The UFADAA is a comprehensive law adopted by the Uniform Law Commission that authorizes access and control to a wide range of digital assets. The Prefatory Note to the UFADAA reads: “As the number of digital assets held by the average person increases, questions surrounding the disposition of these assets upon the individual’s death or incapacity are becoming more common. These assets, ranging from online gaming items to photos, to digital music, to client lists, can have real economic or sentimental value. Yet few laws exist on the rights of fiduciaries over digital assets. Holders of digital assets may not consider the fate of their online presences once they are no longer able to manage their assets, and may not expressly provide for the disposition of their digital assets or electronic communications in the event of their death or incapacity.” Senate Bill 239 allows an individual to grant by a power of attorney the power of accessing and taking control of the individual’s electronic communications and digital assets. The statutory power of attorney form has been amended to grant this power. The power of attorney must be acknowledged before a Notary.

Read Senate Bill 239.