Published in the Ferndale Patch
By Mera McKenna (Patch Staff) – January 24, 2017 4:00 pm ET
OAKLAND COUNTY, MI — What would happen to your Facebook page if you were to pass away tomorrow? It’s a grim question – yet one we should all be asking ourselves according to legal experts.
Attorney Howard Collens of Galloway and Collens, PLLC was instrumental in helping pass a law in Michigan last year called the Fiduciary Access to Digital Assets Act (FADA), which lays out what exactly happens to digital assets when people become incapacitated or pass away.
Collens was inspired to get behind the law for a couple reasons. He told Patch, “One, I’ve been active on social media for a while and as a probate estate lawyer saw there was a gap in the law that didn’t address this and I have had clients that asked for it. I’ve been including language like this for years on this topic but because there was no law there was no way to see if the language would hold up. Now that we have a law I’m encouraging clients to come in an update their language and for people that don’t have an estate plan and they really need to make an appointment.”
So, what is FADA? Collens shares “The FADA was a multi-year effort to address something that hadn’t been addressed in the law so far. The FADA describes when and how a fiduciary [a person or a company who is acting on behalf of someone else] can gain access to someone else’s digital assets [i.e. accessing bank account information online]. It provides clarity where there wasn’t any before. It describes how organizations like Google and Yahoo and AOL should respond in a circumstances where a person is becoming incapacitated or after a person has died and someone acting on their behalf is trying to learn what their digital assets were.”
What does the law spell out? Collens explains, “The law sets up two categories of access. One is catalog and one is content. Think about an email. The catalog is the ‘to’ and the ‘from’ and the date and the time it was sent. The content is the subject line and the body of the email. Most people want their fiduciary to access both the catalog and the content, however the way that the FADA was set up is that you have to be explicitly clear in order to give full access to the content…I like to say that those who plan will be rewarded and those who don’t will be punished and here’s why. If I don’t have any written documents in place that address this issue, my fiduciaries will be limited to the catalog only. If I really wanted them to have the content they might not be able to get it…Be explicit. You want someone to access the content and the catalog.”
And no matter how old you are, if you have any digital assets – ranging from an email account to a Facebook page, you should make clear plans for what you would like to happen to it in your will, trust and power of attorney. Collens explains, “Most people have some kind of digital asset. Think about a shoe box full of pictures. That doesn’t exist anymore. People have their digital assets stored somewhere in a cloud or Instagram. The economic stuff – people have online access to bank accounts, reward points, moneymaking blog. Those are all reasons why this is an important subject.”
So, how can you get started? You might want to call a lawyer. Collens says, “Think about it this way. We don’t change our own oil. Some of the more expensive litigation cases are those where people try to do it themselves. Will people try to do this themselves? Will they succeed? Perhaps. If they don’t, we try to clean up that mess. I try not to have messes in the first place.”
Also, sign up for an online tool on sites like Facebook and Google. Collens shares, “…an online tool is an inactive account manager type of thing…identify someone that will be able to access certain aspects of your account if your account went dormant. Facebook or Google will send an email every so often to see if you’re active. If you don’t respond, then it’ll send an email to your contact and they’ll be able to access it.”
Collens serves estate planning clients in Wayne, Oakland, Macomb, and Washtenaw counties and probate clients throughout the state of Michigan.