H.F. 262 Section 1. NEW SECTION . 633.90 Power of a fiduciary to 1 access digital assets. 2 Except as modified by a court order or limited in the 3 instrument creating the fiduciary relationship, a fiduciary may 4 exercise all rights and powers granted to such fiduciary under 5 chapter 638. 6 Sec. 2. Section 633A.4402, Code 2017, is amended by adding 7 the following new subsection: 8 NEW SUBSECTION . 33. Exercise all rights and powers granted 9 to a trustee under chapter 638. 10 Sec. 3. Section 633B.201, subsection 1, Code 2017, is 11 amended by adding the following new paragraph: 12 NEW PARAGRAPH . i. Exercise all rights and powers granted 13 to an agent under chapter 638. 14 Sec. 4. NEW SECTION . 638.1 Short title. 15 This chapter may be cited as the “Iowa Uniform Fiduciary 16 Access to Digital Assets Act” . 17 Sec. 5. NEW SECTION . 638.2 Definitions. 18 As used in this chapter, unless the context otherwise 19 requires: 20 1. “Account” means an arrangement under a terms-of-service 21 agreement in which a custodian carries, maintains, processes, 22 receives, or stores a digital asset of the user or provides 23 goods or services to the user. 24 2. “Agent” means an attorney-in-fact granted authority under 25 a durable or nondurable power of attorney under chapter 633B. 26 3. “Carries” means engages in the transmission of an 27 electronic communication. 28 4. “Catalogue of electronic communications” means 29 information that identifies each person with which a user has 30 had an electronic communication, the time and date of the 31 communication, and the electronic address of the person. 32 5. “Conservator” means the same as defined in section 33 633.3. “Conservator” includes a person appointed to have the 34 custody and control of the property of a ward in a limited 35 -1- LSB 2106YH (2) 87 jh/rj 1/ 18

H.F. 262 conservatorship unless otherwise provided by order of the 1 court. 2 6. “Content of an electronic communication” means information 3 concerning the substance or meaning of the communication to 4 which all of the following apply: 5 a. The communication has been sent or received by a user. 6 b. The communication is in electronic storage by a 7 custodian providing an electronic-communication service to the 8 public or is carried or maintained by a custodian providing a 9 remote-computing service to the public. 10 c. The communication is not readily accessible to the 11 public. 12 7. “Court” means a district court in this state. 13 8. “Custodian” means a person that carries, maintains, 14 processes, receives, or stores a digital asset of a user. 15 9. “Designated recipient” means a person chosen by a user 16 using an online tool to administer digital assets of the user. 17 10. “Digital asset” means an electronic record in which an 18 individual has a right or interest. “Digital asset” does not 19 include an underlying asset or liability unless the asset or 20 liability is itself an electronic record. “Digital asset” does 21 not include health information or individually identifiable 22 health information as those terms are defined in the federal 23 Health Insurance Portability and Accountability Act of 1996, 24 Pub. L. No. 104-191. 25 11. “Electronic” means relating to technology having 26 electrical, digital, magnetic, wireless, optical, 27 electromagnetic, or similar capabilities. 28 12. “Electronic communication” has the meaning set forth in 29 18 U.S.C. §2510(12). 30 13. “Electronic-communication service” means a custodian 31 that provides to a user the ability to send or receive an 32 electronic communication. 33 14. “Fiduciary” means a personal representative, 34 conservator, guardian, agent, or trustee. 35 -2- LSB 2106YH (2) 87 jh/rj 2/ 18

H.F. 262 15. “Guardian” means the same as defined in section 633.3. 1 “Guardian” includes a person appointed to have the custody and 2 care of the person of the ward in a limited guardianship unless 3 otherwise provided by order of the court. 4 16. “Information” means data, text, images, videos, sounds, 5 codes, computer programs, software, databases, or the like. 6 17. “Online tool” means an electronic service provided by 7 a custodian that allows the user, in an agreement distinct 8 from the terms-of-service agreement between the custodian and 9 user, to provide directions for disclosure or nondisclosure of 10 digital assets to a third person. 11 18. “Person” means an individual, estate, business 12 or nonprofit entity, public corporation, government or 13 governmental subdivision, agency, instrumentality, or other 14 legal entity. 15 19. “Personal representative” means the same as defined in 16 section 633.3. 17 20. “Power of attorney” means the same as defined in section 18 633B.102. 19 21. “Principal” means the same as defined in section 20 633B.102. 21 22. “Record” means information that is inscribed on a 22 tangible medium or that is stored in an electronic or other 23 medium and is retrievable in perceivable form. 24 23. “Remote-computing service” means a custodian that 25 provides to a user computer-processing services or the storage 26 of digital assets by means of an electronic communications 27 system, as defined in 18 U.S.C. §2510(14). 28 24. “Terms-of-service agreement” means an agreement that 29 controls the relationship between a user and a custodian. 30 25. “Trustee” means the same as defined in section 633.3 or 31 633A.1102. 32 26. “User” means a person that has an account with a 33 custodian. 34 27. “Ward” means an individual for whom a conservator or 35 -3- LSB 2106YH (2) 87 jh/rj 3/ 18

H.F. 262 guardian has been appointed. “Ward” includes an individual 1 for whom an application for the appointment of a conservator 2 or guardian is pending and for which a court order authorizing 3 access under this chapter has been granted. 4 28. “Will” means the same as defined in section 633.3. 5 Sec. 6. NEW SECTION . 638.3 Applicability. 6 1. This chapter applies to all of the following: 7 a. A fiduciary acting under a will or power of attorney 8 executed before, on, or after the effective date of this Act. 9 b. A personal representative acting for a decedent who died 10 before, on, or after the effective date of this Act. 11 c. A conservator or guardian acting for a ward on or after 12 the effective date of this Act. 13 d. A trustee acting under a trust created before, on, or 14 after the effective date of this Act. 15 2. This chapter applies to a custodian if the user resides 16 in this state or resided in this state at the time of the user’s 17 death. 18 3. This chapter does not apply to a digital asset of an 19 employer used by an employee in the ordinary course of the 20 employer’s business. 21 Sec. 7. NEW SECTION . 638.4 User direction for disclosure 22 of digital assets. 23 1. A user may use an online tool to direct the custodian to 24 disclose to the designated recipient or not to disclose some 25 or all of the user’s digital assets, including the content 26 of electronic communications. If the online tool allows the 27 user to modify or delete a direction at any time, a direction 28 regarding disclosure using an online tool overrides a contrary 29 direction by the user in a will, trust, power of attorney, or 30 other record. 31 2. If a user has not used an online tool to give direction 32 under subsection 1, or if the custodian has not provided an 33 online tool, the user may allow or prohibit in a will, trust, 34 power of attorney, or other record, disclosure to a fiduciary 35 -4- LSB 2106YH (2) 87 jh/rj 4/ 18

H.F. 262 of some or all of the user’s digital assets, including the 1 content of electronic communications sent or received by the 2 user. 3 3. A user’s direction under subsection 1 or 2 overrides a 4 contrary provision in a terms-of-service agreement that does 5 not require the user to act affirmatively and distinctly from 6 the user’s assent to the terms of service. 7 Sec. 8. NEW SECTION . 638.5 Terms-of-service agreement. 8 1. This chapter does not change or impair a right of a 9 custodian or a user under a terms-of-service agreement to 10 access and use digital assets of the user. 11 2. This chapter does not give a fiduciary or a designated 12 recipient any new or expanded rights other than those held by 13 the user for whom, or for whose estate, the fiduciary or a 14 designated recipient acts or represents. 15 3. A fiduciary’s or designated recipient’s access to 16 digital assets may be modified or eliminated by a user, by 17 federal law, or by a terms-of-service agreement if the user has 18 not provided direction under section 638.4. 19 Sec. 9. NEW SECTION . 638.6 Procedure for disclosing digital 20 assets. 21 1. When disclosing digital assets of a user under this 22 chapter, the custodian may at its sole discretion do any of the 23 following: 24 a. Grant a fiduciary or designated recipient full access to 25 the user’s account. 26 b. Grant a fiduciary or designated recipient partial access 27 to the user’s account sufficient to perform the tasks with 28 which the fiduciary or designated recipient is charged. 29 c. Provide a fiduciary or designated recipient a copy in 30 a record of any digital asset that, on the date the custodian 31 received the request for disclosure, the user could have 32 accessed if the user were alive, was competent, and had access 33 to the account. 34 2. A custodian may assess a reasonable administrative 35 -5- LSB 2106YH (2) 87 jh/rj 5/ 18

H.F. 262 charge for the cost of disclosing digital assets under this 1 chapter. 2 3. A custodian need not disclose under this chapter a 3 digital asset deleted by a user. 4 4. If a user directs or a fiduciary requests a custodian to 5 disclose some, but not all, of the user’s digital assets, the 6 custodian need not disclose the assets if segregation of the 7 assets would impose an undue burden on the custodian. If the 8 custodian believes the direction or request imposes an undue 9 burden, the custodian or fiduciary may seek an order from the 10 court to disclose any of the following: 11 a. A subset of the user’s digital assets limited by date. 12 b. All of the user’s digital assets to the fiduciary or 13 designated recipient. 14 c. None of the user’s digital assets. 15 d. All of the user’s digital assets to the court for review 16 in camera. 17 Sec. 10. NEW SECTION . 638.7 Disclosure of content of 18 electronic communications of deceased user. 19 If a deceased user consented or a court directs disclosure 20 of the contents of electronic communications of the user, the 21 custodian shall disclose to the personal representative of the 22 estate of the user the content of an electronic communication 23 sent or received by the user if the personal representative 24 gives the custodian all of the following: 25 1. A written request for disclosure in physical or 26 electronic form. 27 2. A certified copy of the death certificate of the user. 28 3. A certified copy of the letters of appointment of the 29 personal representative, an original affidavit made pursuant 30 to section 633.356, or a file-stamped copy of the court order 31 authorizing the personal representative to administer the 32 user’s estate. 33 4. Unless the user provided direction using an online tool, 34 a copy of the user’s will, trust, power of attorney, or other 35 -6- LSB 2106YH (2) 87 jh/rj 6/ 18

H.F. 262 record evidencing the user’s consent to disclosure of the 1 content of electronic communications. 2 5. If requested by the custodian, any of the following: 3 a. A number, username, address, or other unique subscriber 4 or account identifier assigned by the custodian to identify the 5 user’s account. 6 b. Evidence linking the account to the user. 7 c. A finding by the court of any of the following: 8 (1) The user had a specific account with the custodian, 9 identifiable by the information specified in paragraph “a” . 10 (2) Disclosure of the content of electronic communications 11 of the user would not violate 18 U.S.C. §2701 et seq., 47 12 U.S.C. §222, or other applicable law. 13 (3) Unless the user provided direction using an online 14 tool, that the user consented to disclosure of the content of 15 electronic communications. 16 (4) Disclosure of the content of electronic communications 17 of the user is reasonably necessary for administration of the 18 estate. 19 Sec. 11. NEW SECTION . 638.8 Disclosure of other digital 20 assets of deceased user. 21 Unless the user prohibited disclosure of digital assets or 22 the court directs otherwise, a custodian shall disclose to the 23 personal representative of the estate of a deceased user a 24 catalogue of electronic communications sent or received by the 25 user and digital assets, other than the content of electronic 26 communications, of the user, if the personal representative 27 gives the custodian all of the following: 28 1. A written request for disclosure in physical or 29 electronic form. 30 2. A certified copy of the death certificate of the user. 31 3. A certified copy of the letters of appointment of the 32 personal representative, an original affidavit made pursuant 33 to section 633.356, or a file-stamped copy of the court order 34 authorizing the personal representative to administer the 35 -7- LSB 2106YH (2) 87 jh/rj 7/ 18

H.F. 262 user’s estate. 1 4. If requested by the custodian, any of the following: 2 a. A number, username, address, or other unique subscriber 3 or account identifier assigned by the custodian to identify the 4 user’s account. 5 b. Evidence linking the account to the user. 6 c. An affidavit stating that disclosure of the user’s 7 digital assets is reasonably necessary for administration of 8 the estate. 9 d. A finding by the court of any of the following: 10 (1) The user had a specific account with the custodian, 11 identifiable by the information specified in paragraph “a” . 12 (2) Disclosure of the user’s digital assets is reasonably 13 necessary for administration of the estate. 14 Sec. 12. NEW SECTION . 638.9 Disclosure of content of 15 electronic communications of principal. 16 To the extent a power of attorney expressly grants an agent 17 authority over the content of electronic communications sent 18 or received by the principal and unless directed otherwise by 19 the principal or the court, a custodian shall disclose to the 20 agent the content if the agent gives the custodian all of the 21 following: 22 1. A written request for disclosure in physical or 23 electronic form. 24 2. An original or copy of the power of attorney expressly 25 granting the agent authority over the content of electronic 26 communications of the principal. 27 3. A certification by the agent, under penalty of perjury, 28 that the power of attorney is in effect. The certification 29 form provided in section 633B.302 shall satisfy the requirement 30 of this subsection. 31 4. If requested by the custodian, any of the following: 32 a. A number, username, address, or other unique subscriber 33 or account identifier assigned by the custodian to identify the 34 principal’s account. 35 -8- LSB 2106YH (2) 87 jh/rj 8/ 18

H.F. 262 b. Evidence linking the account to the principal. 1 Sec. 13. NEW SECTION . 638.10 Disclosure of other digital 2 assets of principal. 3 Unless otherwise ordered by the court, directed by the 4 principal, or provided by a power of attorney, a custodian 5 shall disclose to an agent with specific authority over digital 6 assets or general authority to act on behalf of a principal 7 a catalogue of electronic communications sent or received by 8 the principal and digital assets, other than the content of 9 electronic communications, of the principal if the agent gives 10 the custodian all of the following: 11 1. A written request for disclosure in physical or 12 electronic form. 13 2. An original or a copy of the power of attorney that gives 14 the agent specific authority over digital assets or general 15 authority to act on behalf of the principal. 16 3. A certification by the agent, under penalty of perjury, 17 that the power of attorney is in effect. 18 4. If requested by the custodian, any of the following: 19 a. A number, username, address, or other unique subscriber 20 or account identifier assigned by the custodian to identify the 21 principal’s account. 22 b. Evidence linking the account to the principal. 23 Sec. 14. NEW SECTION . 638.11 Disclosure of digital assets 24 held in trust when trustee is original user. 25 Unless otherwise ordered by the court or provided in a trust, 26 a custodian shall disclose to a trustee that is an original 27 user of an account any digital asset of the account held in 28 trust, including a catalogue of electronic communications of 29 the trustee and the content of electronic communications. 30 Sec. 15. NEW SECTION . 638.12 Disclosure of contents of 31 electronic communications held in trust when trustee not original 32 user. 33 Unless otherwise ordered by the court, directed by the user, 34 or provided in a trust, a custodian shall disclose to a trustee 35 -9- LSB 2106YH (2) 87 jh/rj 9/ 18

H.F. 262 that is not an original user of an account the content of an 1 electronic communication sent or received by an original or 2 successor user and carried, maintained, processed, received, 3 or stored by the custodian in the account of the trust if the 4 trustee gives the custodian all of the following: 5 1. A written request for disclosure in physical or 6 electronic form. 7 2. A certified copy of the trust instrument or a 8 certification of trust under section 633A.4604 that 9 includes consent to disclosure of the content of electronic 10 communications to the trustee. 11 3. A certification by the trustee, under penalty of perjury, 12 that the trust exists and the trustee is a currently acting 13 trustee of the trust. 14 4. If requested by the custodian, any of the following: 15 a. A number, username, address, or other unique subscriber 16 or account identifier assigned by the custodian to identify the 17 trust’s account. 18 b. Evidence linking the account to the trust. 19 Sec. 16. NEW SECTION . 638.13 Disclosure of other digital 20 assets held in trust when trustee not original user. 21 Unless otherwise ordered by the court, directed by the 22 user, or provided in a trust, a custodian shall disclose, to a 23 trustee that is not an original user of an account, a catalogue 24 of electronic communications sent or received by an original 25 or successor user and stored, carried, or maintained by the 26 custodian in an account of the trust and any digital assets, 27 other than the content of electronic communications, in which 28 the trust has a right or interest if the trustee gives the 29 custodian all of the following: 30 1. A written request for disclosure in physical or 31 electronic form. 32 2. A certified copy of the trust instrument or a 33 certification of trust under section 633A.4604. 34 3. A certification by the trustee, under penalty of perjury, 35 -10- LSB 2106YH (2) 87 jh/rj 10/ 18

H.F. 262 that the trust exists and the trustee is a currently acting 1 trustee of the trust. 2 4. If requested by the custodian, any of the following: 3 a. A number, username, address, or other unique subscriber 4 or account identifier assigned by the custodian to identify the 5 trust’s account. 6 b. Evidence linking the account to the trust. 7 Sec. 17. NEW SECTION . 638.14 Disclosure of digital assets 8 to conservator or guardian of a ward. 9 1. After an opportunity for a hearing to all interested 10 parties, the court may grant a conservator or guardian access 11 to the digital assets of a ward. 12 2. Unless otherwise ordered by the court or directed by the 13 user, a custodian shall disclose to a conservator or guardian 14 the catalogue of electronic communications sent or received 15 by a ward and any digital assets, other than the content of 16 electronic communications, in which the ward has a right or 17 interest if the conservator or guardian gives the custodian all 18 of the following: 19 a. A written request for disclosure in physical or 20 electronic form. 21 b. A file-stamped copy of the court order that gives the 22 conservator or guardian authority over the digital assets of 23 the ward. 24 c. If requested by the custodian, any of the following: 25 (1) A number, username, address, or other unique subscriber 26 or account identifier assigned by the custodian to identify the 27 account of the ward. 28 (2) Evidence linking the account to the ward. 29 3. If the conservatorship or guardianship is not limited, 30 the conservator or guardian may request a custodian of the 31 digital assets of the ward to suspend or terminate an account 32 of the ward for good cause. A request made under this section 33 must be accompanied by a file-stamped copy of the court order 34 establishing the conservatorship or guardianship. 35 -11- LSB 2106YH (2) 87 jh/rj 11/ 18

H.F. 262 Sec. 18. NEW SECTION . 638.15 Fiduciary duty and authority. 1 1. The legal duties imposed on a fiduciary charged with 2 managing tangible property apply to the management of digital 3 assets, including all of the following: 4 a. The duty of care. 5 b. The duty of loyalty. 6 c. The duty of confidentiality. 7 2. All of the following apply to a fiduciary’s or a 8 designated recipient’s authority with respect to a digital 9 asset of a user: 10 a. Except as otherwise provided in section 638.4, the 11 fiduciary’s or designated recipient’s authority is subject to 12 the applicable terms of service. 13 b. The fiduciary’s or designated recipient’s authority is 14 subject to other applicable law, including copyright law. 15 c. In the case of a fiduciary, the fiduciary’s authority is 16 limited by the scope of the fiduciary’s duties. 17 d. The fiduciary’s or designated recipient’s authority shall 18 not be used to impersonate the user. 19 3. A fiduciary with authority over the property of a 20 decedent, ward, principal, or settlor has the right to access 21 any digital asset in which the decedent, ward, principal, or 22 settlor had a right or interest and that is not held by a 23 custodian or subject to a terms-of-service agreement. 24 4. A fiduciary acting within the scope of the fiduciary’s 25 duties is an authorized user of the property of the decedent, 26 ward, principal, or settlor for the purpose of applicable 27 computer-fraud and unauthorized-computer-access laws, including 28 section 716.6B. 29 5. A fiduciary with authority over the tangible, personal 30 property of a decedent, ward, principal, or settlor possesses 31 all of the following authority: 32 a. Has the right to access the property and any digital 33 asset stored in the property. 34 b. Is an authorized user for the purpose of computer-fraud 35 -12- LSB 2106YH (2) 87 jh/rj 12/ 18

H.F. 262 and unauthorized-computer-access laws, including section 1 716.6B. 2 6. A custodian may disclose information in an account to 3 a fiduciary of the user when the information is required to 4 terminate an account used to access digital assets licensed to 5 the user. 6 7. A fiduciary of a user may request a custodian to 7 terminate the user’s account. A request for termination must 8 be in writing, in either physical or electronic form, and 9 accompanied by all of the following: 10 a. If the user is deceased, a certified copy of the death 11 certificate of the user. 12 b. A certified copy of the letters of appointment of the 13 personal representative, an original affidavit made pursuant 14 to section 633.356, a file-stamped copy of the court order 15 authorizing the personal representative to administer the 16 user’s estate, power of attorney, or trust, including a 17 certification of trust, giving the fiduciary authority over the 18 account. 19 c. If requested by the custodian, any of the following: 20 (1) A number, username, address, or other unique subscriber 21 or account identifier assigned by the custodian to identify the 22 user’s account. 23 (2) Evidence linking the account to the user. 24 (3) A finding by the court that the user had a specific 25 account with the custodian, identifiable by the information 26 specified in subparagraph (1). 27 Sec. 19. NEW SECTION . 638.16 Custodian compliance and 28 immunity. 29 1. Not later than sixty days after receipt of the 30 information required under sections 638.7 through 638.14, a 31 custodian shall comply with a request under this chapter from a 32 fiduciary or designated recipient to disclose digital assets or 33 terminate an account. If the custodian fails to comply, the 34 fiduciary or designated recipient may apply to the court for 35 -13- LSB 2106YH (2) 87 jh/rj 13/ 18

H.F. 262 an order directing compliance. 1 2. An order under subsection 1 directing compliance must 2 contain a finding that compliance is not in violation of 18 3 U.S.C. §2702. 4 3. A custodian may notify the user that a request for 5 disclosure or to terminate an account was made under this 6 chapter. 7 4. A custodian may deny a request under this chapter from 8 a fiduciary or designated recipient for disclosure of digital 9 assets or to terminate an account if the custodian is aware of 10 any lawful access to the account following the receipt of the 11 fiduciary’s request. 12 5. This chapter does not limit a custodian’s ability 13 to obtain or require a fiduciary or designated recipient 14 requesting disclosure or termination under this chapter to 15 obtain a court order which finds all of the following: 16 a. That the account belongs to the user. 17 b. That there is sufficient consent from the user to support 18 the requested disclosure. 19 c. Any specific factual finding required by any applicable 20 law other than this chapter. 21 6. A custodian and the custodian’s officers, employees, and 22 agents are immune from liability for an act or omission done in 23 good faith in compliance with this chapter. 24 Sec. 20. NEW SECTION . 638.17 Uniformity of application and 25 construction. 26 In applying and construing this chapter, consideration must 27 be given to the need to promote uniformity of the law with 28 respect to this chapter’s subject matter among states that 29 enact the revised uniform fiduciary access to digital assets 30 Act. 31 Sec. 21. NEW SECTION . 638.18 Relation to Electronic 32 Signatures in Global and National Commerce Act. 33 This chapter modifies, limits, or supersedes the federal 34 Electronic Signatures in Global and National Commerce Act, 15 35 -14- LSB 2106YH (2) 87 jh/rj 14/ 18

H.F. 262 U.S.C. §7001 et seq., but does not modify, limit, or supersede 1 section 101(c) of that Act, 15 U.S.C. §7001(c), or authorize 2 electronic delivery of any of the notices described in section 3 103(b) of that Act, 15 U.S.C. §7003(b). 4 EXPLANATION 5 The inclusion of this explanation does not constitute agreement with 6 the explanation’s substance by the members of the general assembly. 7 This bill relates to a fiduciary’s access to digital assets 8 and includes applicability provisions. 9 The bill defines “digital asset” as an electronic record in 10 which an individual has a right or interest. “Digital asset” 11 does not include an underlying asset or liability unless the 12 asset or liability is itself an electronic record. “Digital 13 asset” does not include health information or individually 14 identifiable health information as those terms are defined in 15 the federal Health Insurance Portability and Accountability 16 Act. “Fiduciary” is defined as an agent under a power of 17 attorney pursuant to Code chapter 633B, a conservator, 18 guardian, personal representative, or trustee as each is 19 defined under Code section 633.3, or a trustee as defined in 20 Code section 633A.1102. “Custodian” is defined as a person 21 that carries, maintains, processes, receives, or stores a 22 digital asset of a user. “User” is defined as a person that has 23 an account with a custodian. 24 The bill provides that a user may direct a custodian to 25 disclose to the designated recipient or not to disclose 26 the user’s digital assets to a fiduciary through an online 27 tool, a will, trust, power of attorney, or other record. A 28 terms-of-service agreement which the user agreed to may also 29 provide whether the custodian shall disclose the user’s digital 30 assets to a fiduciary. 31 The bill provides that a custodian shall disclose the 32 electronic communications of a deceased user to the personal 33 representative of the estate if the personal representative 34 provides the custodian a written request for disclosure, 35 -15- LSB 2106YH (2) 87 jh/rj 15/ 18

H.F. 262 a certified copy of the death certificate, letters of 1 appointment, and documentation evidencing the user’s consent 2 to disclosure of the content of electronic communications, 3 unless the user provided such direction in an online 4 tool. A custodian shall disclose other digital assets of a 5 deceased user to the personal representative if the personal 6 representative provides a written request for disclosure, 7 a certified copy of the death certificate, and letters of 8 appointment. 9 The bill provides that if a power of attorney expressly 10 grants an agent authority over the content of electronic 11 communications, a custodian shall disclose such content if 12 the agent provides to the custodian a written request for 13 disclosure, a copy of the power of attorney expressly granting 14 the agent authority over the content of the principal’s 15 electronic communications, and a certification by the agent 16 that the power of attorney is in effect. Where a power of 17 attorney grants an agent specific authority over digital 18 assets or general authority to act on behalf of the principal, 19 the custodian shall disclose a catalogue of electronic 20 communications sent or received by the principal and digital 21 assets, other than the content of electronic communications, 22 if the agent provides to the custodian a written request for 23 disclosure, a copy of the power of attorney giving the agent 24 specific authority over digital assets or general authority 25 to act on behalf of the principal, and a certification by the 26 agent that the power of attorney is in effect. 27 The bill provides that a custodian shall disclose to a 28 trustee that is an original user of an account any digital 29 asset of the account held in trust. The bill provides that 30 unless otherwise ordered by the court, directed by the user, or 31 provided in a trust, a custodian shall disclose to a trustee 32 that is not an original user the content of an electronic 33 communication sent or received by a user if the trustee gives 34 the custodian a written request, a certified copy of the trust 35 -16- LSB 2106YH (2) 87 jh/rj 16/ 18

H.F. 262 that includes consent to disclose the content of electronic 1 communications to the trustee, and a certification by the 2 trustee that the trust exists and the trustee is a currently 3 acting trustee. A custodian shall disclose to a trustee 4 digital assets in which the trust has an interest and that 5 are not electronic communications if the trustee gives the 6 custodian a written request, a certified copy of the trust 7 instrument or certification, and a certification by the trustee 8 that the trust exists and the trustee is a currently acting 9 trustee. 10 The bill provides that after an opportunity for a hearing, 11 the court may grant a conservator or guardian access to 12 a ward’s digital assets. The bill also provides that a 13 custodian shall disclose to a conservator or guardian the 14 catalogue of electronic communications of a ward and any of 15 the ward’s other digital assets, other than the content of 16 electronic communications, if the conservator or guardian 17 provides the custodian with a written request for disclosure 18 and a copy of the court order that gives the conservator or 19 guardian authority over the ward’s digital assets. If the 20 conservatorship or guardianship is not limited, the conservator 21 or guardian may request a custodian to suspend or terminate an 22 account of the ward for good cause. 23 The bill imposes on a fiduciary the duties of care, loyalty, 24 and confidentiality and specifies a fiduciary’s authority with 25 respect to digital assets of a user. 26 The bill provides that a custodian has 60 days to comply with 27 a request under the new Code chapter. If the custodian fails 28 to comply, the fiduciary may apply for a court order directing 29 compliance. 30 The bill provides that a custodian and the custodian’s 31 officers, employees, and agents are immune from liability for 32 an act or omission done in good faith in compliance with the 33 new Code chapter. 34 The bill provides applicability provisions. The bill 35 -17- LSB 2106YH (2) 87 jh/rj 17/ 18

H.F. 262 applies to a fiduciary acting under a will or a power of 1 attorney executed before, on, or after the effective date of 2 the bill. The bill applies to a personal representative acting 3 for a decedent who dies before, on, or after the effective date 4 of the bill. The bill applies to a conservator or guardian 5 acting for a ward on or after the effective date of the bill. 6 The bill applies to a trustee acting under a trust created 7 before, on, or after the effective date of the bill. 8 The bill makes conforming changes. 9 -18- LSB 2106YH (2) 87 jh/rj 18/ 18