By Mac McLean

The Bulletin

Creating a VAIL

Portland attorney Victoria Blachly thinks having a Virtual Asset Instruction Letter is just as important as having an advanced directive, a power of attorney and a will when it comes to preparing for the uncertainty that can happen when a person dies or is declared mentally incompetent. She created a step-by-step guide people should follow when creating one of these documents.

• Step 1: Identify each Internet account you have and determine how the company handles it when the account holder dies.

• Step 2: Determine which accounts you want your representative to maintain and prepare a written and electronic list of those accounts, their log-in information and their passwords so he or she can access them.

• Step 3: Determine which accounts you want your representative to delete and provide the necessary instructions he or she can follow so they can do that task as well.

• Step 4: Save these instructions on a CD or a memory stick and store it in a safe place. Tell your representative where these items can be found and what he or she needs to do to access them.

• Step 5: Download a copy of any pictures, online memorabilia or personal writings you think your loved ones might want from the Internet and save it on a disk drive or a CD that you control. Tell your personal representative where this is and how to access it.

• Step 6: Update your power of attorney documents so they give your agent (the person who acts on your behalf) the authority to access your emails and other electronic information.

• Step 7: Include the names of any people you want to handle your electronic information outside of your personal representative in your will and any other estate planning documents.

Source: Victoria Blachly and the firm of Samuels, Yoelin and Kantor Attorneys at Law

Think about the information you store online.

There’s the Pinterest page where you keep a collection of family recipes, the Instagram account where you keep your vacation photos, the email account that has contact information for everyone you know and the blog where you keep a memoir you’ve been typing away at for the past five months.

There are also your online bank and investment accounts, where at the financial institution’s request to go paperless you now keep records of every transaction they made on your behalf, and a series of other legal/financial documents you or your loved ones might need at a moment’s notice.

Now think about what happens to this information — all of which is stored on a password-protected website that only you can access — when you die.

Portland attorney Victoria Blachly said people can avoid the personal, financial and in some cases legal headaches that come with losing access to their online accounts by creating a Virtual Asset Instruction Letter where they list their online accounts, the passwords they use to access each one, and instructions explaining what, if anything, should be done with the content each account holds.

But there’s a catch.

“(Even if they have permission) people are breaking the law when they use someone else’s password to access their online accounts,” she said, explaining how a 30-year-old federal statute has made it difficult for estate planners who work in an era of increasing online usage and informaiton.

Blachly said the problem lies with the federal Computer Fraud and Abuse Act of 1986, which threatens harsh criminal penalties for people who access online information “without authorization” or in a manner that “exceeds authorized access” without defining what either of these terms means.

She said the same ambiguity exists in many online service providers’ Terms of Service Agreements, those long documents people scroll through and check that they’ve read without actually reading, and that can put people who access someone else’s online accounts at risk of facing civil proceedings in addition to the criminal ones they could face for violating the Computer Fraud and Abuse Act.

“We’ve got to fix that,” said Blachly, who is working with several of her colleagues to get the Uniform Fiduciary Access to Digital Assets Act — Senate Bill 369 — through the Oregon Legislature during this year’s session.

Filed at the request of the Oregon State Bar’s Estate Planning and Administration Section, UFADAA makes it clear the executor of a person’s estate, his or her court-appointed guardian/conservator, his or her trustee or another fiduciary has the authority to access the person’s online accounts to gather and distribute digital assets, prevent identity theft and console loved ones with images and stories posted on social media.

“UFADAA ensures that fiduciaries have the access they need to carry out their duties in accordance with the account holder’s estate plan … (and their) best interests,” Blachly said when she spoke in favor of the act during a March hearing held by the Senate Judiciary Committee.

During her testimony, Blachly also stressed UFADAA does not create a new law but instead takes the state’s existing fiduciary codes and updates them so they cover an individual’s digital assets. Duly appointed fiduciaries can legally hire a locksmith to enter someone’s home under this body of law, she added, so it only makes sense they should also be able to access a person’s Facebook page or online investment account.

According to the Legislature’s website, Senate Bill 369 was referred to the Senate Rules Committee on April 30 after it passed a vote in the Senate Judiciary Committee. The Oregon House of Representatives does not have a companion piece of legislation, according to the website.

Similar bills are being considered by legislatures in Idaho, Nevada, Washington and 20 other states this year, according to the National Conference of Commissioners on Uniform State Laws and its Uniform Law Commission.

— Reporter: 541-617-7816, mmclean@bendbulletin.com

Editor’s note: This article has been corrected. In the original version, the number of the Senate Bill was misstated. The Bulletin regrets the error.

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