Decrease Bucks County Chamber of Commerce: Does Your Power of Attorney Embody This Provision? It ought to.

Written by: Robert A. Stewart, Esq.

My colleague Christopher N. McGann, Esq., Recently discussed the treatment of “digital assets” when creating an estate plan. So I wanted to share how we are addressing this issue when creating a general power of attorney for an estate planning client.

Our general (as opposed to “restricted”) power of attorney documents for customers in Pennsylvania and New Jersey contain a specific provision for digital assets that both defines digital assets and authorizes the agent to access those assets from the principal’s computers. Telephones or similar devices. The provision also gives the agent the ability to control passwords and other electronic credentials associated with digital assets. In addition, the authority granted to the agent is intended to represent a “legitimate consent” to a service provider to disclose the content of a communication in accordance with the Federal Law on Stored Communications.

As a background, the law on stored communications (18 USC Sec. 2701 ff. Or a successor thereof) creates a fourth amendment-like data protection for e-mails and other digital communications stored on the Internet. This limits the government’s ability to force third-party Internet Service Providers (ISPs) to disclose content information and non-content information (such as logs and envelope information from emails). However, ISPs may disclose “non-content” information such as log data and the recipient’s name and email address to anyone other than a government agency, hence the “lawful consent” given in our general permanent power of attorney.

If you know a client, relative, or friend who may have a power of attorney issued fifteen or more years ago, I strongly recommend that you review it to see if and how “digital assets” are being treated.

This news release was prepared by the Lower Bucks County Chamber of Commerce. The views expressed are those of the author.