THE DIGITAL AFTERLIFE

What will happen in yours?

Law Legacy Blog Forum, 01.09.19

Doing nothing leaves questions of access, privacy, ownership and management up for grabs.

 

Consider your digital footprint and legacy. 

In the digital age, your assets and much of your existence dwells only in electronic form.  Financially, socially, and personally your digital life will live on unless you take control by planning.

 

Lurking in your Electronic Realm

 

MULTIPLE HARD DRIVES        MULTIPLE DEVICES.       MULTIPLE EMAIL ACCOUNTS

 PC LAPTOP              EREADER                  IMAC             IPHONE

IPAD              WORK CLOUD                     DROPBOX                 ICLOUD        

GOOGLE DRIVE      MANAGE WEBSITE             DATA BASE SUBSCRIPTIONS

FACEBOOK    TWITTER    LINKEDIN    SNAPCHAT     REDDIT    VINE

SUBSCRIPTIONS                             BANKING

            INVESTMENT ACCOUNTS            MANAGE A BUSINESS       GAMING

ONLINE MAGAZINES                    ENTERTAINMENT SITES

3 MUSIC PLATFORMS        WEBSITE HOSTING PLATFORM  WORDPRESS,

CUSTOMER MANAGEMENT SYSTEM                CRYTOCURRENCY 

PHOTOS/VIDEO                        BILL PAY

            BROWSING HISTORY        SHOPPING/SELLING          PERSONAL LETTERS

CREATIVE WORKS/INTELLECTUAL PROPERTY                      TAX RETURNS

            COMMUNICATION SENT AND RECEIVED       MANAGE A BLOG

 

Consider for a moment what will happen if you have no digital estate plan. That is what happened to a client’s son, Chappy, who unmarried at 34 was on vacation with his buddies in Costa Rica when he was killed in a jet ski accident.  My client, Chappy’s mom, whose name is Jeanne, was the Administratrix of his estate.

Her husband, Chappy’s father, had died a year earlier after a very long bout of Lou Gehrig’s disease. Jeanne never really used a computer before her husband died. Since her son was so young, he hadn’t considered estate planning to be important. So, when Jeanne  finally got access to Chappy’s computer she got some surprises, like inadvertently coming across his porn collection. This was, of course, mortifying to her and probably Chappy would NOT have wanted his mom to remember him that way. She was also surprised that many of the online sites would not give her access without proof she was authorized by the court to gain entry to her son’s web activities. Armed with only the tiniest bit of computer knowledge she spent hours trying to pry into his electronic devices and all his financial, social and personal accounts. She had to sift among her son’s digital remains without any idea of where he had a foot print, how to get into his various online localities, never sure she found everything, what she should review before deleting, where things should go, what Chappy would have wanted, what company to trust to purge him from the internet and lastly, not wanting to leave  any part of his online identity exposed to hackers or identity thieves.

No one has access to your property except you. Without digital estate planning, whomever you designate as your executor will likely gain access to all your electronic assets, photos, accounts, etc, and maybe after a court struggle. Will they find everything? Do you want them to? Is it fair to burden your executor with this enormous undertaking without instructions or your wishes?  Does data in a cloud have value if it is not accessible?  No, no it doesn’t.  Is your executor sufficiently tech savvy to manage the extent your digital legacy without specific instructions from you?  Do you want to choose what service provider is reliable to be entrusted with deleting certain of your online activities?

In estate planning, we have to bring the digital footprint in for a landing, make a home for the information and traceable here on earth. Describe who has authority, to what extent and what should be done with each locality. It is a matter of centralizing the information needed to locate and access our complete digital existence. Then ensure that it is managed according to what we want and what is easiest for our families or our digital fiduciary (a.k.a. agent) to handle.

So…

  1. Include a plan for your digital assets in your estate planning documents. Designate one or more digital fiduciaries who are willing to serve and set forth the level of authority your agent(s).will have
  2. Make a list/inventory of all forms of your digital assets and how to access each.

If you currently use a password manager program you are about 20% of the way there. Otherwise secure your list in a safe place either a physical safe or in virtual security deposit box/encrypted document retention in the cloud.

  1. Decide how you want or need each asset to be handled. Different types need to be managed differently. Ensure your photos are archived and the one who would most appreciate them, gets them. Other aspects of your digital identity you’ll want transferred to business colleagues or a business successor , certain things you might want deleted. Consider whether some assets have monetary value. Who do you want to manage the valuable digital assets? Should
  2. Provide clear instructions to your designated Digital Executor(s) of how you want each asset handled and give he or she the legal authority to carry out your plan. Though your wishes may conflict with the terms of service agreements or our current outdated law, all the more reason to be clear about your
  3. Use an online management tool to keep track of your digital assets, either by reference to locations and how to access or a tool which functions like a virtual security deposit box Also, Facebook offers the option to designate a Legacy Contact and Google has an Inactive Account Manager. Activate these options today.

Do all of this despite the fact that in Pennsylvania, where I practice, there is no law yet in place which governs how digital assets can be managed. Federal law provides that it is a crime to access another’s electronic possessions without written authority. Philadelphians,… recall newscaster Larry Mendte? (Who hacked into a co-worker’s email account and disclosing private information to the press.)

A federal law gives the digital agent authority to stand in the shoes of the now departed owner, but it limits the ability to disclose another’s electronic content and requires your agent or executor to petition the court to issue an order requiring companies in possession of your electronic data to make certain disclosures of some types of decedent’s digital content. Without a law in force in Pennsylvania, your digital agent may be locked out of your online business and online life.

For privacy, security, and continuity in the management of your digital estate,

Plan Your Digital Afterlife

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Legacy Law Blog Forum .    

 

 

TIPS FOR THE WELL-DRAFTED HEALTH CARE DIRECTIVE / LIVING WILL  –  07.11.2018

 

My goal here is to ensure that you clearly set to paper your health care decisions in advance of needing them. You want your wishes to be honored and your designated decision-maker and family to have as easy a time of it as possible.

Just so we are on the same page, an Advance Health Care Directive is the written health care decisions we make in advance of needing them and includes both a Living Will and a Health Care Power of Attorney. Your Health Care Agent(s) is/are the person(s) you designate to make treatment decisions when you cannot.

Whether you are drafting your own Advance Health Care Directive or working with an attorney, here are some easy and very important considerations:

1) You are unique and therefore so are your choices. Examine your wishes closely. Though it is uncomfortable to imagine yourself in these circumstances, thinking about the possibilities and what you’d truly want is liberating. Do some research. You don’t need to fit your particular wishes into a form, whether online or from a paid professional. If you must sign a “form”, examine many to find the one that best approximates your own wishes. Supplement the decisions with information gained from your research. As a guideline, don’t be too specific either. Make modifications only to those decisions about which you have strong feelings. Perhaps the next issue is one such point…

2) Pain medications may be mistakenly handled under an improperly worded Health Care Directive. One of the last things you’d want is to need pain medication but be unable to ask for it. In that case, what if you mistakenly hadn’t fully documented your wishes about pain medication. For example, some pain medications can hasten death. This may leave your health care agent weighing whether your condition is severe enough to authorize that certain pain medications be administered even though it could hasten death. Also, effective pain medication can render the patient cognitively impaired and without the ability to communicate. To be direct, I think that if there was a chance that I would momentarily regain the ability to communicate, I’d have a lot I’d want to say, and I wouldn’t want medication to dull my ability to communicate. How do you feel about it? By addressing these questions for your health care agent, you can save her/him a great deal of heartache. On the issue of pain medication, be specific to indicate that you want pain medications to be used if they will lessen your suffering even if those pain medications may dull your consciousness or indirectly shorten your life.

3) Consider a liability shield for the doctors and facilities.  One reason why these advance health care directives may not be followed is because of the fear of a lawsuit. Consider including language in your documents that relieves the health care providers, facilities and your agent from any possible liability as a result of their obedience to your directions. Do not underestimate the importance of this provision. People and institutions will be much more likely to honor your wishes if they believe themselves to be protected from liability for doing so.

4) Depending on your circumstances, it is usually best to have 2 agents acting together with each empowered to act individually. Having co-agents facilitates treatment by making it easier to have an agent sign off on implementing your wishes under your directive. When health care decisions need to be made, those decisions often cannot wait to get an agent to create and execute a document. Your document should be crystal-clear on how many signatures are necessary and which agent’s decision is paramount. At Schwartz Legacy Law, we usually recommend that only one signature be required to accomplish a health care decision even if other Agents are available to act. There are pros and cons. You may wish to discuss this issue with an experienced attorney.

6) Your documents should also take into account federal privacy laws. Many lawyers have reported that hospitals and nursing homes have refused to allow a Health Care Agent access to medical records unless the patient’s documents explicitly authorize access under HIPAA and related privacy laws.

7) Experimental medical procedures are sometimes desired, and your documents should specifically authorize your Agent to consent or withhold consent to experimental medical procedures if that is your wish.

8) If hospitals, nursing homes or other health care providers do not get full payment for your care, they might go after your Agent, the equity in your home or even your children for payment. Though it takes several planning strategies to avoid these devastating possibilities, among them is the need to have your Healthcare Directive explicitly state that “My Agents shall not be liable or responsible for any costs or expenses of my medical treatment or care and an Agent’s signature on admissions papers shall not make that Agent liable for any costs and expenses incurred for my care, it being understood that the Agent acts for me and in my stead and I alone would be liable or responsible for such costs and expenses.” This one provision can save great grief and a considerable amount of money.

9) Make the Advance Health Care Directives “self-proving”. In Pennsylvania, all Last Wills & Testaments can be made self-proving. This means that the witnesses do not need to come to court to prove that the person actually signed the Will. A Last Will & Testament is made self-proving with the addition of an affidavit (a sworn statement) attached to the Will. It is not the custom to use these affidavits for Advance Health Care Directives, but it is a smart idea. By including a “self-proving affidavit” the patient’s decisions carry greater force and effect. There is no disadvantage other than that it takes the attorney a bit more time.

10) Consider organ donations and your wishes regarding an autopsy. Most people are unaware that an Agent can donate your body or make organ donations even if you never consented during your lifetime. Including your wishes about organ donation and autopsy in your Advance Health Care Directive will better ensure that your wishes are made known. If you do want to donate part or all of your body, then you also need to make your wishes known.

11) Make SURE people know about your Advance Health Care Directives. Surely, surely, you do not want to create your Advance Health Care Directive then neglect to have it available when needed. As soon as you sign the documents, deliver one copy to each of your designated Health Care Agents and provide one copy to your primary care physician and any other specialists you are seeing. If you are not giving your Agent the original document, tell the Agent where you keep the original and make sure it is accessible. If you update your document, be sure the new one is provided to at least all of the people to whom the prior version had been provided. Make them aware that this new version replaces the older one.

*adapted with permission from an article written by Scott Solkoff, Esquire at Solkoff Legal, PA, Delray Beach, FL.  Consider for a moment what will happen if you have no digital estate plan. That is what happened to a client’s son, Chappy, who unmarried at 34 was on vacation with his buddies in Costa Rica when he was killed in a jet ski accident.  My client, Chappy’s mom, whose name is 

 

 

 

 

 

Orchestrate your digital afterlife