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03rd July 2019

Digital Assets Part 2: During Your Lifetime

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Lasting Powers of Attorney (LPAs)* are often seen as documents which only the elderly or infirm should be thinking about. In reality, everyone should be considering appointing trusted individuals to manage their affairs if they are unable to do so themselves – not least so that digital assets** may be dealt with. Your digital property rights and interests can be managed by an attorney with authority under a Property and Financial Affairs LPA. Digital property includes copyrighted photos, funds held in online betting or selling websites and cryptocurrencies such as bitcoin. Your attorney would need to know how to access these accounts taking into consideration the terms and conditions of the user agreement you have signed up to – so you should consider taking specialist legal advice when making the LPA.

Digital records are distinct from the property rights and interests described above and comprise your files, information, non-copyrighted digital photos etc. These items are not regarded as digital property but can generally be managed by an attorney appointed by a Health and Welfare LPA if appropriate provisions are in place.

Digital accounts are governed by the licence/user agreement which you signed up to when the account was created, and the law in this area is both constantly evolving and mainly created in America as that is where most of the tech companies are based. Several cases in America have indicated that a written instruction from the account holder giving attorneys or executors the authority to deal with these accounts may be accepted, but depending on the particular agreement with the particular company such authority may not be accepted. Again, taking specialist advice will help you to navigate this complex area.

During your lifetime, the best way of providing such written instructions is within Lasting Powers of Attorney (LPA). These documents are registered with the government and accepted by financial institutions or healthcare providers (depending on the type of LPA created). There is a regulatory regime governing attorneys acting under an LPA which provides some oversight and although there is no law in England compelling the internet service provider to grant access to an Attorney under an LPA, this appointment does at least give the Attorney legal standing to make some investigations on your behalf.

It is possible for you to provide your attorneys with guidance as to how to deal with your digital footprint – for example, if you are in an accident you may wish your attorney to inform your family and friends by making an announcement on social media stating what has happened and providing regular updates. For some though, this would make a terrible situation much worse. Tailoring your LPAs to include your preferences for how your digital assets are managed is an important way of recording your wishes and provides a route for your attorneys to obtain (limited) access to your accounts.

Hewitsons have a large team of solicitors experienced in Wills, trusts, tax and estate planning. We can advise you on a plan to assist you with managing your digital assets and tailor this to your wider circumstances taking into account the complex and fast evolving legal context. 

*Please click here to read more about what LPAs are and how they work.
** Please click here to read our introduction to digital assets

You can read Part 3 of this article series by clicking here, or alternatively to read Part 1 click here.