Written by: Robert A. Stewart, Esq.

My colleague Christopher N. McGann, Esq., recently discussed the treatment of “Digital Assets” when preparing an estate plan so I wanted to share how we address this issue when preparing a General Power of Attorney for an estate planning client.

Our General (as opposed to “limited”) Power of Attorney documents for both Pennsylvania and New Jersey clients contain a specific provision dealing with digital assets which both defines digital assets and grants the Agent the authority to access those assets by using the Principal’s computers, phones, or similar devices. The provision also provides the Agent with the ability to control passwords and other electronic credentials associated with digital assets. Moreover, the authority given to the Agent is intended to constitute “lawful consent” to a service provider to divulge the contents of any communication under the federal Stored Communications Act.

By way of background, the Stored Communications Act (18 U.S.C. Sec. 2701 et seq. or any successor thereto) creates Fourth Amendment-like privacy protection for email and other digital communications stored on the internet. It limits the ability of the government to compel third-party internet service providers (ISPs) to turn over content information and non-content information (such as logs and “envelope” information from email). However, ISPs are allowed to share “non-content” information, such as log data and the name and email address of the recipient, with anyone other than a governmental entity hence the “lawful consent” given in our General Durable Power of Attorney.

If you know of a client, relative, or friend who may have a General Power of Attorney that was prepared fifteen or more years ago, I strongly suggest it be reviewed to determine if and how “digital assets” are treated.