October 2018

Access to digital assets upon incapacity or death

Modern forms of asset ownership and wealth continue to change and evolve.  The traditional paper trail to locate assets is disappearing.  Digital assets are now significant for most people and need to be considered in the event of incapacity or death.  Existing legal structures (legislation and general case law) often struggle to change and evolve at the same pace.  Digital assets add complexity because of restrictions in the present legal structures and the uncertainly of which law applies to some assets.

What are digital assets?

Digital assets include all your online accounts and hard storage devices that contain data which can be both personal and financial information.  Online accounts include social media, email, cloud storage, pay pal accounts or other financial accounts.  Hard storage devices include laptops, desktops and external storage devices locked by encryption.

Incapacity or death

Accessing digital assets on incapacity or death is a major problem because of restrictive, existing laws and uncertainty about the application of the proper law.

In the event of incapacity, representatives of the incapable person (attorneys, financial managers or trustees) and in the event of death, representatives of the deceased person (executors, administrators or trustees) are often in a difficult position.  Both types of representatives will, for simplicity and convenience, be referred to as representatives in this article.

There are important legal reasons why representatives need timely access to digital assets and information about those assets.  These reasons include to properly carry out their legal and fiduciary duties, to ensure the prevention of financial loss and to reduce the risk of identity fraud.

NSW Law Reform Commission (Commission) Consultation Paper 20

The Commission produced consultation paper 20 in August 2018 titled “Access to digital assets upon death or incapacity”.  The NSW Attorney General’s terms of reference to the Commission include to review and report on:

  • the laws that affect who can access a person’s digital assets after they become incapable or die, and in what circumstances

  • whether NSW needs new laws in this area; and

  • what should be included in any such laws.

The closing date for submissions to the Commission is Friday, 12 October 2018.

The Commission’s View and Approach

The preliminary view of the Commission is that there are significant policy reasons for law reform to provide a clear legal framework to govern when a third party can access a person’s digital assets upon incapacity or death.  Reasons include current legal uncertainties and the increasing accumulation, value and significance of digital assets.

The approach of the Commission has been to set out questions to guide responses and submissions to the issues raised in the consultation paper.  The questions are set out on pages ix, 36 and 37 of the paper.  Submissions on other relevant issues not raised are also encouraged.

Challenges and Suggestions

The process of prudent law reform is necessarily slow and careful.  It will be a huge challenge to provide new laws that balance the competing interests and policy considerations.  It will be impossible, in the absence of international collaboration, to provide new laws that cover every potential issue and problem.  Past Australian succession law experience also suggests that uniform new laws in Australia will not be easy to achieve.

Representatives seeking access to digital assets and information about those assets on incapacity or death, often need timely access in order to properly undertake their legal and fiduciary duties.  It is only with timely access that representatives can manage the risk of financial loss.  The present legal structures do not provide clear legal guidance to representatives.

It would be helpful to representatives if, in addition to new laws, there was a simple standard procedure that allowed representatives to obtain essential information about digital assets without the need for a time consuming Court or tribunal application. The problem is exacerbated by the fact that any meaningful Court or tribunal application can often only be made with proper details of the digital assets which in many cases cannot be obtained in the first place.

One suggestion could be to allow public notaries the exclusive right to authenticate documents identifying representatives of incapable or deceased persons for the purposes of access to information about digital assets.  This would enable those representatives to quickly obtain essential information about digital assets. 

Notaries are approved by the NSW Supreme Court pursuant to the Public Notaries 1997 (NSW) and the Public Notaries Appointment Rules 1998.  Applicants must be lawyers with at least 5 years standing, who complete the prescribed notarial practice course.  Upon appointment, the name of the notary is entered on the Roll of Public Notaries maintained by the NSW Legal Profession Admission Board.  The system is already in place for recognition of notarised documents in Australia and overseas.  If there is sensible collaboration, a simple practical step to assist representatives can be quickly implemented.

Conclusion

Access to digital assets upon incapacity or death is an area that requires law reform.  Prudent law reform is necessarily slow and careful.

In the meantime, representatives of incapable or deceased persons need to be provided with as much support as can lawfully be made available to them.  Estate planning for incapacity and death must focus on the proper identification of digital assets.  Legal documents need to be prepared that allow representatives (as far as is presently legally permissible) to access, manage and deal with digital assets of an incapable or deceased person.

Author: Gerard Basha