On April 20, 2017, Governor Branstad signed the Iowa Uniform Fiduciary Access to Digital Assets Act which is codified in Chapter 638 of the Iowa Code. The Act broadly defines “digital asset” to mean any electronic record in which an individual has a right or interest. However, the term “digital asset” does not include an underlying asset or liability unless the asset or liability is itself an electronic record and the term “digital asset” does not include health information or individually identifiable health information as those terms are defined in the Federal Health Insurance Portability and Accountability Act of 1996. The term “Fiduciary” means a personal representative in an estate, a conservator, a guardian, an agent under a power of attorney or a trustee of a trust.
The Act provides the custodian may assess a reasonable administrative charge for the cost of disclosing digital assets. If a deceased user consented a disclosure prior to death, or if a Court directs disclosure of electronic communications of the user, a custodian is required to make disclosure if the personal representative gives the custodian all of the following items:
- A written request for disclosure in physical or electronic form;
- A certified copy of the death certificate of the user;
- A certified copy of the Letters of Appointment of the personal representative, and original Affidavit made pursuant to Section 633.356, or a file-stamped copy of the court Order authorizing the personal representative to administer the user’s estate;
- A copy of the user’s will, trust, power of attorney or other record evidencing the user’s consent to disclosure of the electronic communications;
- If requested by the custodian, any of the following items:
- A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
- Evidence linking the account to the user;
- A finding by the court of any of the following:
- The user had a specific account with the custodian, identifiable by the information specified above;
- Disclosure of the content of the electronic communications of the user would not violate the U.S. Code or other applicable law;
- Unless the user provided direction using an online tool, that the user consented to disclosure of the content of electronic communications;
- Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
The Act goes on to set out the various items that need to be provided to the custodian in the event the request is being made by an agent under a power of attorney or a trustee of a trust or by a conservator or guardian for a ward.
The Act goes on to provide that a fiduciary when dealing with digital assets, has the duty of care, duty of loyalty, and duty of confidentiality. In addition, a fiduciary’s authority is subject to the applicable terms of service, subject to other applicable law including copyright law, and is limited by the scope of the fiduciary’s duties.
The Act also provides that a fiduciary may request the custodian to terminate the user’s account and the request must be in writing in either physical or electronic form and must be accompanied by all of the following:
- If the user is deceased, a certified copy of the death certificate;
- A certified copy of the Letters of Appointment of the personal representative, an original affidavit made pursuant to Section 633.356, a file-stamped copy of the court order authorizing the personal representative to administer the user’s estate, power of attorney, or trust, including a certification of trust, giving the fiduciary authority over the account.
The custodian is required to comply with a request under a chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account not later than 60 days after the receipt of the required information. If the custodian fails to comply, the fiduciary may apply to the court for an order directing compliance.
The Chapter also provides that a custodian may seek a court order which finds that the account belongs to the user, that there is sufficient consent from the user to support the requested disclosure, and any specific actual findings required by applicable law other than Chapter 638. A custodian and the custodian’s officers and employees and agents are immune from liability for an act or omission done in good faith in compliance with this Chapter.
The purpose of the new Act is to set forth a uniform set of rules involving fiduciaries of all types when requesting digital assets. The passage of the Act should make access to digital assets by fiduciaries in the future to be a simpler process.
By James D. Beatty