On September 29, 2016, a bill was signed into law by Governor Cuomo adding
Article 13-A to the New York Estates Powers and Trust Law (the "EPTL").
This legislation is New York State's version of the "Uniform
Fiduciary Access to Digital Assets Act" (the "Act") which
nineteen (19) other states have also enacted into law. The Act is effective
immediately. It is meant to provide certainty to all types of fiduciaries
- including: trustees, executors, administrators, agents under a power
of attorney and guardians - in their efforts to acquire access to digital
assets. They now have the authority to gain access to, manage, distribute
and copy or delete digital assets. The Act covers digital assets used
for personal use and does not apply to a digital asset of an employer
used by an employee in the ordinary course of the employer's business.
What this all means is that New Yorkers can now effectively designate who
can obtain access to their digital records upon their death or incapacity
and, moreover, whether they might wish to prohibit such disclosure either
in whole or in part. Although this can be done by will, trust, or power
of attorney, an Internet service providers' online tools overrides
a contrary direction by the user in a will, trust, or power of attorney.
Accordingly, it is important to address your dispositive wishes for your
digital assets in your will, trust, and power of attorney; and ensure
that such wishes are not inadvertently overridden by a contrary direction
in an online tool that might be out of date.