01 Jun Iowa, Kansas, Mississippi, Vermont and Virginia Legislative Update
The legislatures of Iowa, Kansas, Mississippi, Vermont and Virginia have all enacted the Uniform Fiduciary Access to Digital Assets Act (the “Act”). This uniform act has been enacted in various states on which we have previously reported, see our Distribution Memoranda dated September 1, 2016, with updates dated February 17 and March 30, 2017. The enactments discussed in this memorandum are effective July 1, 2017.
The laws enacted in each state have minor differences, but the primary focus of the Act is to define digital assets and the parties involved, which generally includes the following:
- Custodian (person or entity that carries, maintains, processes, receives or stores a digital asset of a user)
- Digital Asset (electronic record in which an individual has a right or interest, but does not include an underlying asset or liability unless the asset or liability is itself an electronic record)
- User (person who has an account with a custodian)
- Designated recipient (person chosen by a user to administer digital assets of the user – to be chosen by online tool)
- Fiduciary (personal representative, executor, administrator, trustee, guardian, conservator, agent, or other person performing in a fiduciary role with regard to a user).
The Act sets forth the requirements and obligations for a custodian to provide a designated recipient or fiduciary with access to the digital assets of a user. A fiduciary has legal duties with regard to management of digital assets, including the duty of care, the duty of loyalty, and the duty of confidentiality.
IOWA SENATE FILE 333
VERMONT HOUSE BILL 152
The legislatures of Iowa and Vermont enacted the uniform Act and incorporated the provisions above.
KANSAS SENATE BILL 63
The Kansas Act also amends the law affecting powers of attorney, trusts, guardians and conservators, as follows:
- In order for a principal to grant authority over the content of electronic communications to his/her attorney-in-fact, the power of attorney must expressly authorize such action.
- A trustee under Kansas law is authorized to access digital assets held in trust.
- A guardian is authorized to access digital assets of the ward, except if otherwise directed by the court.
- A conservator is authorized to access digital assets of the conservatee, except if otherwise directed by the court.
MISSISSIPPI HOUSE BILL 849
In addition to enacting the Act, the law affecting a power of attorney in Mississippi has also been amended, so that a general grant of authority under a power of attorney includes the authority to exercise all rights and powers granted to a fiduciary under the Act.
VIRGINIA HOUSE BILL 1608
The Virginia Act provides that an agent under a power of attorney may have authority over the content of an electronic communication of the principal only if the power of attorney expressly grants that authority to the agent and the exercise of such authority is not otherwise prohibited or limited by another statute, agreement or instrument.