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Senate Study Bill 1086 - IntroducedA Bill ForAn Act 1relating to a fiduciary’s access to digital assets and
2including applicability provisions.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 633.90 Power of a fiduciary to
2access digital assets.
3Except as modified by a court order or limited in the
4instrument creating the fiduciary relationship, a fiduciary may
5exercise all rights and powers granted to such fiduciary under
6chapter 638.
7 Sec. 2. Section 633A.4402, Code 2017, is amended by adding
8the following new subsection:
9 NEW SUBSECTION. 33. Exercise all rights and powers granted
10to a trustee under chapter 638.
11 Sec. 3. Section 633B.201, subsection 1, Code 2017, is
12amended by adding the following new paragraph:
13 NEW PARAGRAPH. i. Exercise all rights and powers granted
14to an agent under chapter 638.
15 Sec. 4. NEW SECTION. 638.1 Short title.
16This chapter may be cited as the “Iowa Uniform Fiduciary
17Access to Digital Assets Act”.
18 Sec. 5. NEW SECTION. 638.2 Definitions.
19As used in this chapter, unless the context otherwise
20requires:
211. “Account” means an arrangement under a terms-of-service
22agreement in which a custodian carries, maintains, processes,
23receives, or stores a digital asset of the user or provides
24goods or services to the user.
252. “Agent” means an attorney-in-fact granted authority under
26a durable or nondurable power of attorney under chapter 633B.
273. “Carries” means engages in the transmission of an
28electronic communication.
294. “Catalogue of electronic communications” means
30information that identifies each person with which a user has
31had an electronic communication, the time and date of the
32communication, and the electronic address of the person.
335. “Conservator” means the same as defined in section
34633.3. “Conservator” includes a person appointed to have the
35custody and control of the property of a ward in a limited
-1-1conservatorship unless otherwise provided by order of the
2court.
36. “Content of an electronic communication” means information
4concerning the substance or meaning of the communication to
5which all of the following apply:
6a. The communication has been sent or received by a user.
7b. The communication is in electronic storage by a
8custodian providing an electronic-communication service to the
9public or is carried or maintained by a custodian providing a
10remote-computing service to the public.
11c. The communication is not readily accessible to the
12public.
137. “Court” means a district court in this state.
148. “Custodian” means a person that carries, maintains,
15processes, receives, or stores a digital asset of a user.
169. “Designated recipient” means a person chosen by a user
17using an online tool to administer digital assets of the user.
1810. “Digital asset” means an electronic record in which an
19individual has a right or interest. “Digital asset” does not
20include an underlying asset or liability unless the asset or
21liability is itself an electronic record. “Digital asset” does
22not include health information or individually identifiable
23health information as those terms are defined in the federal
24Health Insurance Portability and Accountability Act of 1996,
25Pub.L. No.104-191.
2611. “Electronic” means relating to technology having
27electrical, digital, magnetic, wireless, optical,
28electromagnetic, or similar capabilities.
2912. “Electronic communication” has the meaning set forth in
3018 U.S.C.§2510(12).
3113. “Electronic-communication service” means a custodian
32that provides to a user the ability to send or receive an
33electronic communication.
3414. “Fiduciary” means a personal representative,
35conservator, guardian, agent, or trustee.
-2- 115. “Guardian” means the same as defined in section 633.3.
2 “Guardian” includes a person appointed to have the custody and
3care of the person of the ward in a limited guardianship unless
4otherwise provided by order of the court.
516. “Information” means data, text, images, videos, sounds,
6codes, computer programs, software, databases, or the like.
717. “Online tool” means an electronic service provided by
8a custodian that allows the user, in an agreement distinct
9from the terms-of-service agreement between the custodian and
10user, to provide directions for disclosure or nondisclosure of
11digital assets to a third person.
1218. “Person” means an individual, estate, business
13or nonprofit entity, public corporation, government or
14governmental subdivision, agency, instrumentality, or other
15legal entity.
1619. “Personal representative” means the same as defined in
17section 633.3.
1820. “Power of attorney” means the same as defined in section
19633B.102.
2021. “Principal” means the same as defined in section
21633B.102.
2222. “Record” means information that is inscribed on a
23tangible medium or that is stored in an electronic or other
24medium and is retrievable in perceivable form.
2523. “Remote-computing service” means a custodian that
26provides to a user computer-processing services or the storage
27of digital assets by means of an electronic communications
28system, as defined in 18 U.S.C.§2510(14).
2924. “Terms-of-service agreement” means an agreement that
30controls the relationship between a user and a custodian.
3125. “Trustee” means the same as defined in section 633.3 or
32633A.1102.
3326. “User” means a person that has an account with a
34custodian.
3527. “Ward” means an individual for whom a conservator or
-3-1guardian has been appointed. “Ward” includes an individual
2for whom an application for the appointment of a conservator
3or guardian is pending and for which a court order authorizing
4access under this chapter has been granted.
528. “Will” means the same as defined in section 633.3.
6 Sec. 6. NEW SECTION. 638.3 Applicability.
71. This chapter applies to all of the following:
8a. A fiduciary acting under a will or power of attorney
9executed before, on, or after the effective date of this Act.
10b. A personal representative acting for a decedent who died
11before, on, or after the effective date of this Act.
12c. A conservator or guardian acting for a ward on or after
13the effective date of this Act.
14d. A trustee acting under a trust created before, on, or
15after the effective date of this Act.
162. This chapter applies to a custodian if the user resides
17in this state or resided in this state at the time of the user’s
18death.
193. This chapter does not apply to a digital asset of an
20employer used by an employee in the ordinary course of the
21employer’s business.
22 Sec. 7. NEW SECTION. 638.4 User direction for disclosure
23of digital assets.
241. A user may use an online tool to direct the custodian to
25disclose to the designated recipient or not to disclose some
26or all of the user’s digital assets, including the content
27of electronic communications. If the online tool allows the
28user to modify or delete a direction at any time, a direction
29regarding disclosure using an online tool overrides a contrary
30direction by the user in a will, trust, power of attorney, or
31other record.
322. If a user has not used an online tool to give direction
33under subsection 1, or if the custodian has not provided an
34online tool, the user may allow or prohibit in a will, trust,
35power of attorney, or other record, disclosure to a fiduciary
-4-1of some or all of the user’s digital assets, including the
2content of electronic communications sent or received by the
3user.
43. A user’s direction under subsection 1 or 2 overrides a
5contrary provision in a terms-of-service agreement that does
6not require the user to act affirmatively and distinctly from
7the user’s assent to the terms of service.
8 Sec. 8. NEW SECTION. 638.5 Terms-of-service agreement.
91. This chapter does not change or impair a right of a
10custodian or a user under a terms-of-service agreement to
11access and use digital assets of the user.
122. This chapter does not give a fiduciary or a designated
13recipient any new or expanded rights other than those held by
14the user for whom, or for whose estate, the fiduciary or a
15designated recipient acts or represents.
163. A fiduciary’s or designated recipient’s access to
17digital assets may be modified or eliminated by a user, by
18federal law, or by a terms-of-service agreement if the user has
19not provided direction under section 638.4.
20 Sec. 9. NEW SECTION. 638.6 Procedure for disclosing digital
21assets.
221. When disclosing digital assets of a user under this
23chapter, the custodian may at its sole discretion do any of the
24following:
25a. Grant a fiduciary or designated recipient full access to
26the user’s account.
27b. Grant a fiduciary or designated recipient partial access
28to the user’s account sufficient to perform the tasks with
29which the fiduciary or designated recipient is charged.
30c. Provide a fiduciary or designated recipient a copy in
31a record of any digital asset that, on the date the custodian
32received the request for disclosure, the user could have
33accessed if the user were alive, was competent, and had access
34to the account.
352. A custodian may assess a reasonable administrative
-5-1charge for the cost of disclosing digital assets under this
2chapter.
33. A custodian need not disclose under this chapter a
4digital asset deleted by a user.
54. If a user directs or a fiduciary requests a custodian to
6disclose some, but not all, of the user’s digital assets, the
7custodian need not disclose the assets if segregation of the
8assets would impose an undue burden on the custodian. If the
9custodian believes the direction or request imposes an undue
10burden, the custodian or fiduciary may seek an order from the
11court to disclose any of the following:
12a. A subset of the user’s digital assets limited by date.
13b. All of the user’s digital assets to the fiduciary or
14designated recipient.
15c. None of the user’s digital assets.
16d. All of the user’s digital assets to the court for review
17in camera.
18 Sec. 10. NEW SECTION. 638.7 Disclosure of content of
19electronic communications of deceased user.
20If a deceased user consented or a court directs disclosure
21of the contents of electronic communications of the user, the
22custodian shall disclose to the personal representative of the
23estate of the user the content of an electronic communication
24sent or received by the user if the personal representative
25gives the custodian all of the following:
261. A written request for disclosure in physical or
27electronic form.
282. A certified copy of the death certificate of the user.
293. A certified copy of the letters of appointment of the
30personal representative, an original affidavit made pursuant
31to section 633.356, or a file-stamped copy of the court order
32authorizing the personal representative to administer the
33user’s estate.
344. Unless the user provided direction using an online tool,
35a copy of the user’s will, trust, power of attorney, or other
-6-1record evidencing the user’s consent to disclosure of the
2content of electronic communications.
35. If requested by the custodian, any of the following:
4a. A number, username, address, or other unique subscriber
5or account identifier assigned by the custodian to identify the
6user’s account.
7b. Evidence linking the account to the user.
8c. A finding by the court of any of the following:
9(1) The user had a specific account with the custodian,
10identifiable by the information specified in paragraph “a”.
11(2) Disclosure of the content of electronic communications
12of the user would not violate 18 U.S.C.§2701 et seq., 47
13U.S.C.§222, or other applicable law.
14(3) Unless the user provided direction using an online
15tool, that the user consented to disclosure of the content of
16electronic communications.
17(4) Disclosure of the content of electronic communications
18of the user is reasonably necessary for administration of the
19estate.
20 Sec. 11. NEW SECTION. 638.8 Disclosure of other digital
21assets of deceased user.
22Unless the user prohibited disclosure of digital assets or
23the court directs otherwise, a custodian shall disclose to the
24personal representative of the estate of a deceased user a
25catalogue of electronic communications sent or received by the
26user and digital assets, other than the content of electronic
27communications, of the user, if the personal representative
28gives the custodian all of the following:
291. A written request for disclosure in physical or
30electronic form.
312. A certified copy of the death certificate of the user.
323. A certified copy of the letters of appointment of the
33personal representative, an original affidavit made pursuant
34to section 633.356, or a file-stamped copy of the court order
35authorizing the personal representative to administer the
-7-1user’s estate.
24. If requested by the custodian, any of the following:
3a. A number, username, address, or other unique subscriber
4or account identifier assigned by the custodian to identify the
5user’s account.
6b. Evidence linking the account to the user.
7c. An affidavit stating that disclosure of the user’s
8digital assets is reasonably necessary for administration of
9the estate.
10d. A finding by the court of any of the following:
11(1) The user had a specific account with the custodian,
12identifiable by the information specified in paragraph “a”.
13(2) Disclosure of the user’s digital assets is reasonably
14necessary for administration of the estate.
15 Sec. 12. NEW SECTION. 638.9 Disclosure of content of
16electronic communications of principal.
17To the extent a power of attorney expressly grants an agent
18authority over the content of electronic communications sent
19or received by the principal and unless directed otherwise by
20the principal or the court, a custodian shall disclose to the
21agent the content if the agent gives the custodian all of the
22following:
231. A written request for disclosure in physical or
24electronic form.
252. An original or copy of the power of attorney expressly
26granting the agent authority over the content of electronic
27communications of the principal.
283. A certification by the agent, under penalty of perjury,
29that the power of attorney is in effect. The certification
30form provided in section 633B.302 shall satisfy the requirement
31of this subsection.
324. If requested by the custodian, any of the following:
33a. A number, username, address, or other unique subscriber
34or account identifier assigned by the custodian to identify the
35principal’s account.
-8- 1b. Evidence linking the account to the principal.
2 Sec. 13. NEW SECTION. 638.10 Disclosure of other digital
3assets of principal.
4Unless otherwise ordered by the court, directed by the
5principal, or provided by a power of attorney, a custodian
6shall disclose to an agent with specific authority over digital
7assets or general authority to act on behalf of a principal
8a catalogue of electronic communications sent or received by
9the principal and digital assets, other than the content of
10electronic communications, of the principal if the agent gives
11the custodian all of the following:
121. A written request for disclosure in physical or
13electronic form.
142. An original or a copy of the power of attorney that gives
15the agent specific authority over digital assets or general
16authority to act on behalf of the principal.
173. A certification by the agent, under penalty of perjury,
18that the power of attorney is in effect.
194. If requested by the custodian, any of the following:
20a. A number, username, address, or other unique subscriber
21or account identifier assigned by the custodian to identify the
22principal’s account.
23b. Evidence linking the account to the principal.
24 Sec. 14. NEW SECTION. 638.11 Disclosure of digital assets
25held in trust when trustee is original user.
26Unless otherwise ordered by the court or provided in a trust,
27a custodian shall disclose to a trustee that is an original
28user of an account any digital asset of the account held in
29trust, including a catalogue of electronic communications of
30the trustee and the content of electronic communications.
31 Sec. 15. NEW SECTION. 638.12 Disclosure of contents of
32electronic communications held in trust when trustee not original
33user.
34Unless otherwise ordered by the court, directed by the user,
35or provided in a trust, a custodian shall disclose to a trustee
-9-1that is not an original user of an account the content of an
2electronic communication sent or received by an original or
3successor user and carried, maintained, processed, received,
4or stored by the custodian in the account of the trust if the
5trustee gives the custodian all of the following:
61. A written request for disclosure in physical or
7electronic form.
82. A certified copy of the trust instrument or a
9certification of trust under section 633A.4604 that
10includes consent to disclosure of the content of electronic
11communications to the trustee.
123. A certification by the trustee, under penalty of perjury,
13that the trust exists and the trustee is a currently acting
14trustee of the trust.
154. If requested by the custodian, any of the following:
16a. A number, username, address, or other unique subscriber
17or account identifier assigned by the custodian to identify the
18trust’s account.
19b. Evidence linking the account to the trust.
20 Sec. 16. NEW SECTION. 638.13 Disclosure of other digital
21assets held in trust when trustee not original user.
22Unless otherwise ordered by the court, directed by the
23user, or provided in a trust, a custodian shall disclose, to a
24trustee that is not an original user of an account, a catalogue
25of electronic communications sent or received by an original
26or successor user and stored, carried, or maintained by the
27custodian in an account of the trust and any digital assets,
28other than the content of electronic communications, in which
29the trust has a right or interest if the trustee gives the
30custodian all of the following:
311. A written request for disclosure in physical or
32electronic form.
332. A certified copy of the trust instrument or a
34certification of trust under section 633A.4604.
353. A certification by the trustee, under penalty of perjury,
-10-1that the trust exists and the trustee is a currently acting
2trustee of the trust.
34. If requested by the custodian, any of the following:
4a. A number, username, address, or other unique subscriber
5or account identifier assigned by the custodian to identify the
6trust’s account.
7b. Evidence linking the account to the trust.
8 Sec. 17. NEW SECTION. 638.14 Disclosure of digital assets
9to conservator or guardian of a ward.
101. After an opportunity for a hearing to all interested
11parties, the court may grant a conservator or guardian access
12to the digital assets of a ward.
132. Unless otherwise ordered by the court or directed by the
14user, a custodian shall disclose to a conservator or guardian
15the catalogue of electronic communications sent or received
16by a ward and any digital assets, other than the content of
17electronic communications, in which the ward has a right or
18interest if the conservator or guardian gives the custodian all
19of the following:
20a. A written request for disclosure in physical or
21electronic form.
22b. A file-stamped copy of the court order that gives the
23conservator or guardian authority over the digital assets of
24the ward.
25c. If requested by the custodian, any of the following:
26(1) A number, username, address, or other unique subscriber
27or account identifier assigned by the custodian to identify the
28account of the ward.
29(2) Evidence linking the account to the ward.
303. If the conservatorship or guardianship is not limited,
31the conservator or guardian may request a custodian of the
32digital assets of the ward to suspend or terminate an account
33of the ward for good cause. A request made under this section
34must be accompanied by a file-stamped copy of the court order
35establishing the conservatorship or guardianship.
-11-1 Sec. 18. NEW SECTION. 638.15 Fiduciary duty and authority.
21. The legal duties imposed on a fiduciary charged with
3managing tangible property apply to the management of digital
4assets, including all of the following:
5a. The duty of care.
6b. The duty of loyalty.
7c. The duty of confidentiality.
82. All of the following apply to a fiduciary’s or a
9designated recipient’s authority with respect to a digital
10asset of a user:
11a. Except as otherwise provided in section 638.4, the
12fiduciary’s or designated recipient’s authority is subject to
13the applicable terms of service.
14b. The fiduciary’s or designated recipient’s authority is
15subject to other applicable law, including copyright law.
16c. In the case of a fiduciary, the fiduciary’s authority is
17limited by the scope of the fiduciary’s duties.
18d. The fiduciary’s or designated recipient’s authority shall
19not be used to impersonate the user.
203. A fiduciary with authority over the property of a
21decedent, ward, principal, or settlor has the right to access
22any digital asset in which the decedent, ward, principal, or
23settlor had a right or interest and that is not held by a
24custodian or subject to a terms-of-service agreement.
254. A fiduciary acting within the scope of the fiduciary’s
26duties is an authorized user of the property of the decedent,
27ward, principal, or settlor for the purpose of applicable
28computer-fraud and unauthorized-computer-access laws, including
29section 716.6B.
305. A fiduciary with authority over the tangible, personal
31property of a decedent, ward, principal, or settlor possesses
32all of the following authority:
33a. Has the right to access the property and any digital
34asset stored in the property.
35b. Is an authorized user for the purpose of computer-fraud
-12-1and unauthorized-computer-access laws, including section
2716.6B.
36. A custodian may disclose information in an account to
4a fiduciary of the user when the information is required to
5terminate an account used to access digital assets licensed to
6the user.
77. A fiduciary of a user may request a custodian to
8terminate the user’s account. A request for termination must
9be in writing, in either physical or electronic form, and
10accompanied by all of the following:
11a. If the user is deceased, a certified copy of the death
12certificate of the user.
13b. A certified copy of the letters of appointment of the
14personal representative, an original affidavit made pursuant
15to section 633.356, a file-stamped copy of the court order
16authorizing the personal representative to administer the
17user’s estate, power of attorney, or trust, including a
18certification of trust, giving the fiduciary authority over the
19account.
20c. If requested by the custodian, any of the following:
21(1) A number, username, address, or other unique subscriber
22or account identifier assigned by the custodian to identify the
23user’s account.
24(2) Evidence linking the account to the user.
25(3) A finding by the court that the user had a specific
26account with the custodian, identifiable by the information
27specified in subparagraph (1).
28 Sec. 19. NEW SECTION. 638.16 Custodian compliance and
29immunity.
301. Not later than sixty days after receipt of the
31information required under sections 638.7 through 638.14, a
32custodian shall comply with a request under this chapter from a
33fiduciary or designated recipient to disclose digital assets or
34terminate an account. If the custodian fails to comply, the
35fiduciary or designated recipient may apply to the court for
-13-1an order directing compliance.
22. An order under subsection 1 directing compliance must
3contain a finding that compliance is not in violation of 18
4U.S.C.§2702.
53. A custodian may notify the user that a request for
6disclosure or to terminate an account was made under this
7chapter.
84. A custodian may deny a request under this chapter from
9a fiduciary or designated recipient for disclosure of digital
10assets or to terminate an account if the custodian is aware of
11any lawful access to the account following the receipt of the
12fiduciary’s request.
135. This chapter does not limit a custodian’s ability
14to obtain or require a fiduciary or designated recipient
15requesting disclosure or termination under this chapter to
16obtain a court order which finds all of the following:
17a. That the account belongs to the user.
18b. That there is sufficient consent from the user to support
19the requested disclosure.
20c. Any specific factual finding required by any applicable
21law other than this chapter.
226. A custodian and the custodian’s officers, employees, and
23agents are immune from liability for an act or omission done in
24good faith in compliance with this chapter.
25 Sec. 20. NEW SECTION. 638.17 Uniformity of application and
26construction.
27In applying and construing this chapter, consideration must
28be given to the need to promote uniformity of the law with
29respect to this chapter’s subject matter among states that
30enact the revised uniform fiduciary access to digital assets
31Act.
32 Sec. 21. NEW SECTION. 638.18 Relation to Electronic
33Signatures in Global and National Commerce Act.
34This chapter modifies, limits, or supersedes the federal
35Electronic Signatures in Global and National Commerce Act, 15
-14-1U.S.C.§7001 et seq., but does not modify, limit, or supersede
2section 101(c) of that Act, 15 U.S.C.§7001(c), or authorize
3electronic delivery of any of the notices described in section
4103(b) of that Act, 15 U.S.C.§7003(b).
5EXPLANATION
6The inclusion of this explanation does not constitute agreement with
7the explanation’s substance by the members of the general assembly.
8This bill relates to a fiduciary’s access to digital assets
9and includes applicability provisions.
10The bill defines “digital asset” as an electronic record in
11which an individual has a right or interest. “Digital asset”
12does not include an underlying asset or liability unless the
13asset or liability is itself an electronic record. “Digital
14asset” does not include health information or individually
15identifiable health information as those terms are defined in
16the federal Health Insurance Portability and Accountability
17Act. “Fiduciary” is defined as an agent under a power of
18attorney pursuant to Code chapter 633B, a conservator,
19guardian, personal representative, or trustee as each is
20defined under Code section 633.3, or a trustee as defined in
21Code section 633A.1102. “Custodian” is defined as a person
22that carries, maintains, processes, receives, or stores a
23digital asset of a user. “User” is defined as a person that has
24an account with a custodian.
25The bill provides that a user may direct a custodian to
26disclose to the designated recipient or not to disclose
27the user’s digital assets to a fiduciary through an online
28tool, a will, trust, power of attorney, or other record. A
29terms-of-service agreement which the user agreed to may also
30provide whether the custodian shall disclose the user’s digital
31assets to a fiduciary.
32The bill provides that a custodian shall disclose the
33electronic communications of a deceased user to the personal
34representative of the estate if the personal representative
35provides the custodian a written request for disclosure,
-15-1a certified copy of the death certificate, letters of
2appointment, and documentation evidencing the user’s consent
3to disclosure of the content of electronic communications,
4unless the user provided such direction in an online
5tool. A custodian shall disclose other digital assets of a
6deceased user to the personal representative if the personal
7representative provides a written request for disclosure,
8a certified copy of the death certificate, and letters of
9appointment.
10The bill provides that if a power of attorney expressly
11grants an agent authority over the content of electronic
12communications, a custodian shall disclose such content if
13the agent provides to the custodian a written request for
14disclosure, a copy of the power of attorney expressly granting
15the agent authority over the content of the principal’s
16electronic communications, and a certification by the agent
17that the power of attorney is in effect. Where a power of
18attorney grants an agent specific authority over digital
19assets or general authority to act on behalf of the principal,
20the custodian shall disclose a catalogue of electronic
21communications sent or received by the principal and digital
22assets, other than the content of electronic communications,
23if the agent provides to the custodian a written request for
24disclosure, a copy of the power of attorney giving the agent
25specific authority over digital assets or general authority
26to act on behalf of the principal, and a certification by the
27agent that the power of attorney is in effect.
28The bill provides that a custodian shall disclose to a
29trustee that is an original user of an account any digital
30asset of the account held in trust. The bill provides that
31unless otherwise ordered by the court, directed by the user, or
32provided in a trust, a custodian shall disclose to a trustee
33that is not an original user the content of an electronic
34communication sent or received by a user if the trustee gives
35the custodian a written request, a certified copy of the trust
-16-1that includes consent to disclose the content of electronic
2communications to the trustee, and a certification by the
3trustee that the trust exists and the trustee is a currently
4acting trustee. A custodian shall disclose to a trustee
5digital assets in which the trust has an interest and that
6are not electronic communications if the trustee gives the
7custodian a written request, a certified copy of the trust
8instrument or certification, and a certification by the trustee
9that the trust exists and the trustee is a currently acting
10trustee.
11The bill provides that after an opportunity for a hearing,
12the court may grant a conservator or guardian access to
13a ward’s digital assets. The bill also provides that a
14custodian shall disclose to a conservator or guardian the
15catalogue of electronic communications of a ward and any of
16the ward’s other digital assets, other than the content of
17electronic communications, if the conservator or guardian
18provides the custodian with a written request for disclosure
19and a copy of the court order that gives the conservator or
20guardian authority over the ward’s digital assets. If the
21conservatorship or guardianship is not limited, the conservator
22or guardian may request a custodian to suspend or terminate an
23account of the ward for good cause.
24The bill imposes on a fiduciary the duties of care, loyalty,
25and confidentiality and specifies a fiduciary’s authority with
26respect to digital assets of a user.
27The bill provides that a custodian has 60 days to comply with
28a request under the new Code chapter. If the custodian fails
29to comply, the fiduciary may apply for a court order directing
30compliance.
31The bill provides that a custodian and the custodian’s
32officers, employees, and agents are immune from liability for
33an act or omission done in good faith in compliance with the
34new Code chapter.
35The bill provides applicability provisions. The bill
-17-1applies to a fiduciary acting under a will or a power of
2attorney executed before, on, or after the effective date of
3the bill. The bill applies to a personal representative acting
4for a decedent who dies before, on, or after the effective date
5of the bill. The bill applies to a conservator or guardian
6acting for a ward on or after the effective date of the bill.
7The bill applies to a trustee acting under a trust created
8before, on, or after the effective date of the bill.
9The bill makes conforming changes.
-18-jh/rj
2including applicability provisions.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 633.90 Power of a fiduciary to
2access digital assets.
3Except as modified by a court order or limited in the
4instrument creating the fiduciary relationship, a fiduciary may
5exercise all rights and powers granted to such fiduciary under
6chapter 638.
7 Sec. 2. Section 633A.4402, Code 2017, is amended by adding
8the following new subsection:
9 NEW SUBSECTION. 33. Exercise all rights and powers granted
10to a trustee under chapter 638.
11 Sec. 3. Section 633B.201, subsection 1, Code 2017, is
12amended by adding the following new paragraph:
13 NEW PARAGRAPH. i. Exercise all rights and powers granted
14to an agent under chapter 638.
15 Sec. 4. NEW SECTION. 638.1 Short title.
16This chapter may be cited as the “Iowa Uniform Fiduciary
17Access to Digital Assets Act”.
18 Sec. 5. NEW SECTION. 638.2 Definitions.
19As used in this chapter, unless the context otherwise
20requires:
211. “Account” means an arrangement under a terms-of-service
22agreement in which a custodian carries, maintains, processes,
23receives, or stores a digital asset of the user or provides
24goods or services to the user.
252. “Agent” means an attorney-in-fact granted authority under
26a durable or nondurable power of attorney under chapter 633B.
273. “Carries” means engages in the transmission of an
28electronic communication.
294. “Catalogue of electronic communications” means
30information that identifies each person with which a user has
31had an electronic communication, the time and date of the
32communication, and the electronic address of the person.
335. “Conservator” means the same as defined in section
34633.3. “Conservator” includes a person appointed to have the
35custody and control of the property of a ward in a limited
-1-1conservatorship unless otherwise provided by order of the
2court.
36. “Content of an electronic communication” means information
4concerning the substance or meaning of the communication to
5which all of the following apply:
6a. The communication has been sent or received by a user.
7b. The communication is in electronic storage by a
8custodian providing an electronic-communication service to the
9public or is carried or maintained by a custodian providing a
10remote-computing service to the public.
11c. The communication is not readily accessible to the
12public.
137. “Court” means a district court in this state.
148. “Custodian” means a person that carries, maintains,
15processes, receives, or stores a digital asset of a user.
169. “Designated recipient” means a person chosen by a user
17using an online tool to administer digital assets of the user.
1810. “Digital asset” means an electronic record in which an
19individual has a right or interest. “Digital asset” does not
20include an underlying asset or liability unless the asset or
21liability is itself an electronic record. “Digital asset” does
22not include health information or individually identifiable
23health information as those terms are defined in the federal
24Health Insurance Portability and Accountability Act of 1996,
25Pub.L. No.104-191.
2611. “Electronic” means relating to technology having
27electrical, digital, magnetic, wireless, optical,
28electromagnetic, or similar capabilities.
2912. “Electronic communication” has the meaning set forth in
3018 U.S.C.§2510(12).
3113. “Electronic-communication service” means a custodian
32that provides to a user the ability to send or receive an
33electronic communication.
3414. “Fiduciary” means a personal representative,
35conservator, guardian, agent, or trustee.
-2- 115. “Guardian” means the same as defined in section 633.3.
2 “Guardian” includes a person appointed to have the custody and
3care of the person of the ward in a limited guardianship unless
4otherwise provided by order of the court.
516. “Information” means data, text, images, videos, sounds,
6codes, computer programs, software, databases, or the like.
717. “Online tool” means an electronic service provided by
8a custodian that allows the user, in an agreement distinct
9from the terms-of-service agreement between the custodian and
10user, to provide directions for disclosure or nondisclosure of
11digital assets to a third person.
1218. “Person” means an individual, estate, business
13or nonprofit entity, public corporation, government or
14governmental subdivision, agency, instrumentality, or other
15legal entity.
1619. “Personal representative” means the same as defined in
17section 633.3.
1820. “Power of attorney” means the same as defined in section
19633B.102.
2021. “Principal” means the same as defined in section
21633B.102.
2222. “Record” means information that is inscribed on a
23tangible medium or that is stored in an electronic or other
24medium and is retrievable in perceivable form.
2523. “Remote-computing service” means a custodian that
26provides to a user computer-processing services or the storage
27of digital assets by means of an electronic communications
28system, as defined in 18 U.S.C.§2510(14).
2924. “Terms-of-service agreement” means an agreement that
30controls the relationship between a user and a custodian.
3125. “Trustee” means the same as defined in section 633.3 or
32633A.1102.
3326. “User” means a person that has an account with a
34custodian.
3527. “Ward” means an individual for whom a conservator or
-3-1guardian has been appointed. “Ward” includes an individual
2for whom an application for the appointment of a conservator
3or guardian is pending and for which a court order authorizing
4access under this chapter has been granted.
528. “Will” means the same as defined in section 633.3.
6 Sec. 6. NEW SECTION. 638.3 Applicability.
71. This chapter applies to all of the following:
8a. A fiduciary acting under a will or power of attorney
9executed before, on, or after the effective date of this Act.
10b. A personal representative acting for a decedent who died
11before, on, or after the effective date of this Act.
12c. A conservator or guardian acting for a ward on or after
13the effective date of this Act.
14d. A trustee acting under a trust created before, on, or
15after the effective date of this Act.
162. This chapter applies to a custodian if the user resides
17in this state or resided in this state at the time of the user’s
18death.
193. This chapter does not apply to a digital asset of an
20employer used by an employee in the ordinary course of the
21employer’s business.
22 Sec. 7. NEW SECTION. 638.4 User direction for disclosure
23of digital assets.
241. A user may use an online tool to direct the custodian to
25disclose to the designated recipient or not to disclose some
26or all of the user’s digital assets, including the content
27of electronic communications. If the online tool allows the
28user to modify or delete a direction at any time, a direction
29regarding disclosure using an online tool overrides a contrary
30direction by the user in a will, trust, power of attorney, or
31other record.
322. If a user has not used an online tool to give direction
33under subsection 1, or if the custodian has not provided an
34online tool, the user may allow or prohibit in a will, trust,
35power of attorney, or other record, disclosure to a fiduciary
-4-1of some or all of the user’s digital assets, including the
2content of electronic communications sent or received by the
3user.
43. A user’s direction under subsection 1 or 2 overrides a
5contrary provision in a terms-of-service agreement that does
6not require the user to act affirmatively and distinctly from
7the user’s assent to the terms of service.
8 Sec. 8. NEW SECTION. 638.5 Terms-of-service agreement.
91. This chapter does not change or impair a right of a
10custodian or a user under a terms-of-service agreement to
11access and use digital assets of the user.
122. This chapter does not give a fiduciary or a designated
13recipient any new or expanded rights other than those held by
14the user for whom, or for whose estate, the fiduciary or a
15designated recipient acts or represents.
163. A fiduciary’s or designated recipient’s access to
17digital assets may be modified or eliminated by a user, by
18federal law, or by a terms-of-service agreement if the user has
19not provided direction under section 638.4.
20 Sec. 9. NEW SECTION. 638.6 Procedure for disclosing digital
21assets.
221. When disclosing digital assets of a user under this
23chapter, the custodian may at its sole discretion do any of the
24following:
25a. Grant a fiduciary or designated recipient full access to
26the user’s account.
27b. Grant a fiduciary or designated recipient partial access
28to the user’s account sufficient to perform the tasks with
29which the fiduciary or designated recipient is charged.
30c. Provide a fiduciary or designated recipient a copy in
31a record of any digital asset that, on the date the custodian
32received the request for disclosure, the user could have
33accessed if the user were alive, was competent, and had access
34to the account.
352. A custodian may assess a reasonable administrative
-5-1charge for the cost of disclosing digital assets under this
2chapter.
33. A custodian need not disclose under this chapter a
4digital asset deleted by a user.
54. If a user directs or a fiduciary requests a custodian to
6disclose some, but not all, of the user’s digital assets, the
7custodian need not disclose the assets if segregation of the
8assets would impose an undue burden on the custodian. If the
9custodian believes the direction or request imposes an undue
10burden, the custodian or fiduciary may seek an order from the
11court to disclose any of the following:
12a. A subset of the user’s digital assets limited by date.
13b. All of the user’s digital assets to the fiduciary or
14designated recipient.
15c. None of the user’s digital assets.
16d. All of the user’s digital assets to the court for review
17in camera.
18 Sec. 10. NEW SECTION. 638.7 Disclosure of content of
19electronic communications of deceased user.
20If a deceased user consented or a court directs disclosure
21of the contents of electronic communications of the user, the
22custodian shall disclose to the personal representative of the
23estate of the user the content of an electronic communication
24sent or received by the user if the personal representative
25gives the custodian all of the following:
261. A written request for disclosure in physical or
27electronic form.
282. A certified copy of the death certificate of the user.
293. A certified copy of the letters of appointment of the
30personal representative, an original affidavit made pursuant
31to section 633.356, or a file-stamped copy of the court order
32authorizing the personal representative to administer the
33user’s estate.
344. Unless the user provided direction using an online tool,
35a copy of the user’s will, trust, power of attorney, or other
-6-1record evidencing the user’s consent to disclosure of the
2content of electronic communications.
35. If requested by the custodian, any of the following:
4a. A number, username, address, or other unique subscriber
5or account identifier assigned by the custodian to identify the
6user’s account.
7b. Evidence linking the account to the user.
8c. A finding by the court of any of the following:
9(1) The user had a specific account with the custodian,
10identifiable by the information specified in paragraph “a”.
11(2) Disclosure of the content of electronic communications
12of the user would not violate 18 U.S.C.§2701 et seq., 47
13U.S.C.§222, or other applicable law.
14(3) Unless the user provided direction using an online
15tool, that the user consented to disclosure of the content of
16electronic communications.
17(4) Disclosure of the content of electronic communications
18of the user is reasonably necessary for administration of the
19estate.
20 Sec. 11. NEW SECTION. 638.8 Disclosure of other digital
21assets of deceased user.
22Unless the user prohibited disclosure of digital assets or
23the court directs otherwise, a custodian shall disclose to the
24personal representative of the estate of a deceased user a
25catalogue of electronic communications sent or received by the
26user and digital assets, other than the content of electronic
27communications, of the user, if the personal representative
28gives the custodian all of the following:
291. A written request for disclosure in physical or
30electronic form.
312. A certified copy of the death certificate of the user.
323. A certified copy of the letters of appointment of the
33personal representative, an original affidavit made pursuant
34to section 633.356, or a file-stamped copy of the court order
35authorizing the personal representative to administer the
-7-1user’s estate.
24. If requested by the custodian, any of the following:
3a. A number, username, address, or other unique subscriber
4or account identifier assigned by the custodian to identify the
5user’s account.
6b. Evidence linking the account to the user.
7c. An affidavit stating that disclosure of the user’s
8digital assets is reasonably necessary for administration of
9the estate.
10d. A finding by the court of any of the following:
11(1) The user had a specific account with the custodian,
12identifiable by the information specified in paragraph “a”.
13(2) Disclosure of the user’s digital assets is reasonably
14necessary for administration of the estate.
15 Sec. 12. NEW SECTION. 638.9 Disclosure of content of
16electronic communications of principal.
17To the extent a power of attorney expressly grants an agent
18authority over the content of electronic communications sent
19or received by the principal and unless directed otherwise by
20the principal or the court, a custodian shall disclose to the
21agent the content if the agent gives the custodian all of the
22following:
231. A written request for disclosure in physical or
24electronic form.
252. An original or copy of the power of attorney expressly
26granting the agent authority over the content of electronic
27communications of the principal.
283. A certification by the agent, under penalty of perjury,
29that the power of attorney is in effect. The certification
30form provided in section 633B.302 shall satisfy the requirement
31of this subsection.
324. If requested by the custodian, any of the following:
33a. A number, username, address, or other unique subscriber
34or account identifier assigned by the custodian to identify the
35principal’s account.
-8- 1b. Evidence linking the account to the principal.
2 Sec. 13. NEW SECTION. 638.10 Disclosure of other digital
3assets of principal.
4Unless otherwise ordered by the court, directed by the
5principal, or provided by a power of attorney, a custodian
6shall disclose to an agent with specific authority over digital
7assets or general authority to act on behalf of a principal
8a catalogue of electronic communications sent or received by
9the principal and digital assets, other than the content of
10electronic communications, of the principal if the agent gives
11the custodian all of the following:
121. A written request for disclosure in physical or
13electronic form.
142. An original or a copy of the power of attorney that gives
15the agent specific authority over digital assets or general
16authority to act on behalf of the principal.
173. A certification by the agent, under penalty of perjury,
18that the power of attorney is in effect.
194. If requested by the custodian, any of the following:
20a. A number, username, address, or other unique subscriber
21or account identifier assigned by the custodian to identify the
22principal’s account.
23b. Evidence linking the account to the principal.
24 Sec. 14. NEW SECTION. 638.11 Disclosure of digital assets
25held in trust when trustee is original user.
26Unless otherwise ordered by the court or provided in a trust,
27a custodian shall disclose to a trustee that is an original
28user of an account any digital asset of the account held in
29trust, including a catalogue of electronic communications of
30the trustee and the content of electronic communications.
31 Sec. 15. NEW SECTION. 638.12 Disclosure of contents of
32electronic communications held in trust when trustee not original
33user.
34Unless otherwise ordered by the court, directed by the user,
35or provided in a trust, a custodian shall disclose to a trustee
-9-1that is not an original user of an account the content of an
2electronic communication sent or received by an original or
3successor user and carried, maintained, processed, received,
4or stored by the custodian in the account of the trust if the
5trustee gives the custodian all of the following:
61. A written request for disclosure in physical or
7electronic form.
82. A certified copy of the trust instrument or a
9certification of trust under section 633A.4604 that
10includes consent to disclosure of the content of electronic
11communications to the trustee.
123. A certification by the trustee, under penalty of perjury,
13that the trust exists and the trustee is a currently acting
14trustee of the trust.
154. If requested by the custodian, any of the following:
16a. A number, username, address, or other unique subscriber
17or account identifier assigned by the custodian to identify the
18trust’s account.
19b. Evidence linking the account to the trust.
20 Sec. 16. NEW SECTION. 638.13 Disclosure of other digital
21assets held in trust when trustee not original user.
22Unless otherwise ordered by the court, directed by the
23user, or provided in a trust, a custodian shall disclose, to a
24trustee that is not an original user of an account, a catalogue
25of electronic communications sent or received by an original
26or successor user and stored, carried, or maintained by the
27custodian in an account of the trust and any digital assets,
28other than the content of electronic communications, in which
29the trust has a right or interest if the trustee gives the
30custodian all of the following:
311. A written request for disclosure in physical or
32electronic form.
332. A certified copy of the trust instrument or a
34certification of trust under section 633A.4604.
353. A certification by the trustee, under penalty of perjury,
-10-1that the trust exists and the trustee is a currently acting
2trustee of the trust.
34. If requested by the custodian, any of the following:
4a. A number, username, address, or other unique subscriber
5or account identifier assigned by the custodian to identify the
6trust’s account.
7b. Evidence linking the account to the trust.
8 Sec. 17. NEW SECTION. 638.14 Disclosure of digital assets
9to conservator or guardian of a ward.
101. After an opportunity for a hearing to all interested
11parties, the court may grant a conservator or guardian access
12to the digital assets of a ward.
132. Unless otherwise ordered by the court or directed by the
14user, a custodian shall disclose to a conservator or guardian
15the catalogue of electronic communications sent or received
16by a ward and any digital assets, other than the content of
17electronic communications, in which the ward has a right or
18interest if the conservator or guardian gives the custodian all
19of the following:
20a. A written request for disclosure in physical or
21electronic form.
22b. A file-stamped copy of the court order that gives the
23conservator or guardian authority over the digital assets of
24the ward.
25c. If requested by the custodian, any of the following:
26(1) A number, username, address, or other unique subscriber
27or account identifier assigned by the custodian to identify the
28account of the ward.
29(2) Evidence linking the account to the ward.
303. If the conservatorship or guardianship is not limited,
31the conservator or guardian may request a custodian of the
32digital assets of the ward to suspend or terminate an account
33of the ward for good cause. A request made under this section
34must be accompanied by a file-stamped copy of the court order
35establishing the conservatorship or guardianship.
-11-1 Sec. 18. NEW SECTION. 638.15 Fiduciary duty and authority.
21. The legal duties imposed on a fiduciary charged with
3managing tangible property apply to the management of digital
4assets, including all of the following:
5a. The duty of care.
6b. The duty of loyalty.
7c. The duty of confidentiality.
82. All of the following apply to a fiduciary’s or a
9designated recipient’s authority with respect to a digital
10asset of a user:
11a. Except as otherwise provided in section 638.4, the
12fiduciary’s or designated recipient’s authority is subject to
13the applicable terms of service.
14b. The fiduciary’s or designated recipient’s authority is
15subject to other applicable law, including copyright law.
16c. In the case of a fiduciary, the fiduciary’s authority is
17limited by the scope of the fiduciary’s duties.
18d. The fiduciary’s or designated recipient’s authority shall
19not be used to impersonate the user.
203. A fiduciary with authority over the property of a
21decedent, ward, principal, or settlor has the right to access
22any digital asset in which the decedent, ward, principal, or
23settlor had a right or interest and that is not held by a
24custodian or subject to a terms-of-service agreement.
254. A fiduciary acting within the scope of the fiduciary’s
26duties is an authorized user of the property of the decedent,
27ward, principal, or settlor for the purpose of applicable
28computer-fraud and unauthorized-computer-access laws, including
29section 716.6B.
305. A fiduciary with authority over the tangible, personal
31property of a decedent, ward, principal, or settlor possesses
32all of the following authority:
33a. Has the right to access the property and any digital
34asset stored in the property.
35b. Is an authorized user for the purpose of computer-fraud
-12-1and unauthorized-computer-access laws, including section
2716.6B.
36. A custodian may disclose information in an account to
4a fiduciary of the user when the information is required to
5terminate an account used to access digital assets licensed to
6the user.
77. A fiduciary of a user may request a custodian to
8terminate the user’s account. A request for termination must
9be in writing, in either physical or electronic form, and
10accompanied by all of the following:
11a. If the user is deceased, a certified copy of the death
12certificate of the user.
13b. A certified copy of the letters of appointment of the
14personal representative, an original affidavit made pursuant
15to section 633.356, a file-stamped copy of the court order
16authorizing the personal representative to administer the
17user’s estate, power of attorney, or trust, including a
18certification of trust, giving the fiduciary authority over the
19account.
20c. If requested by the custodian, any of the following:
21(1) A number, username, address, or other unique subscriber
22or account identifier assigned by the custodian to identify the
23user’s account.
24(2) Evidence linking the account to the user.
25(3) A finding by the court that the user had a specific
26account with the custodian, identifiable by the information
27specified in subparagraph (1).
28 Sec. 19. NEW SECTION. 638.16 Custodian compliance and
29immunity.
301. Not later than sixty days after receipt of the
31information required under sections 638.7 through 638.14, a
32custodian shall comply with a request under this chapter from a
33fiduciary or designated recipient to disclose digital assets or
34terminate an account. If the custodian fails to comply, the
35fiduciary or designated recipient may apply to the court for
-13-1an order directing compliance.
22. An order under subsection 1 directing compliance must
3contain a finding that compliance is not in violation of 18
4U.S.C.§2702.
53. A custodian may notify the user that a request for
6disclosure or to terminate an account was made under this
7chapter.
84. A custodian may deny a request under this chapter from
9a fiduciary or designated recipient for disclosure of digital
10assets or to terminate an account if the custodian is aware of
11any lawful access to the account following the receipt of the
12fiduciary’s request.
135. This chapter does not limit a custodian’s ability
14to obtain or require a fiduciary or designated recipient
15requesting disclosure or termination under this chapter to
16obtain a court order which finds all of the following:
17a. That the account belongs to the user.
18b. That there is sufficient consent from the user to support
19the requested disclosure.
20c. Any specific factual finding required by any applicable
21law other than this chapter.
226. A custodian and the custodian’s officers, employees, and
23agents are immune from liability for an act or omission done in
24good faith in compliance with this chapter.
25 Sec. 20. NEW SECTION. 638.17 Uniformity of application and
26construction.
27In applying and construing this chapter, consideration must
28be given to the need to promote uniformity of the law with
29respect to this chapter’s subject matter among states that
30enact the revised uniform fiduciary access to digital assets
31Act.
32 Sec. 21. NEW SECTION. 638.18 Relation to Electronic
33Signatures in Global and National Commerce Act.
34This chapter modifies, limits, or supersedes the federal
35Electronic Signatures in Global and National Commerce Act, 15
-14-1U.S.C.§7001 et seq., but does not modify, limit, or supersede
2section 101(c) of that Act, 15 U.S.C.§7001(c), or authorize
3electronic delivery of any of the notices described in section
4103(b) of that Act, 15 U.S.C.§7003(b).
5EXPLANATION
6The inclusion of this explanation does not constitute agreement with
7the explanation’s substance by the members of the general assembly.
8This bill relates to a fiduciary’s access to digital assets
9and includes applicability provisions.
10The bill defines “digital asset” as an electronic record in
11which an individual has a right or interest. “Digital asset”
12does not include an underlying asset or liability unless the
13asset or liability is itself an electronic record. “Digital
14asset” does not include health information or individually
15identifiable health information as those terms are defined in
16the federal Health Insurance Portability and Accountability
17Act. “Fiduciary” is defined as an agent under a power of
18attorney pursuant to Code chapter 633B, a conservator,
19guardian, personal representative, or trustee as each is
20defined under Code section 633.3, or a trustee as defined in
21Code section 633A.1102. “Custodian” is defined as a person
22that carries, maintains, processes, receives, or stores a
23digital asset of a user. “User” is defined as a person that has
24an account with a custodian.
25The bill provides that a user may direct a custodian to
26disclose to the designated recipient or not to disclose
27the user’s digital assets to a fiduciary through an online
28tool, a will, trust, power of attorney, or other record. A
29terms-of-service agreement which the user agreed to may also
30provide whether the custodian shall disclose the user’s digital
31assets to a fiduciary.
32The bill provides that a custodian shall disclose the
33electronic communications of a deceased user to the personal
34representative of the estate if the personal representative
35provides the custodian a written request for disclosure,
-15-1a certified copy of the death certificate, letters of
2appointment, and documentation evidencing the user’s consent
3to disclosure of the content of electronic communications,
4unless the user provided such direction in an online
5tool. A custodian shall disclose other digital assets of a
6deceased user to the personal representative if the personal
7representative provides a written request for disclosure,
8a certified copy of the death certificate, and letters of
9appointment.
10The bill provides that if a power of attorney expressly
11grants an agent authority over the content of electronic
12communications, a custodian shall disclose such content if
13the agent provides to the custodian a written request for
14disclosure, a copy of the power of attorney expressly granting
15the agent authority over the content of the principal’s
16electronic communications, and a certification by the agent
17that the power of attorney is in effect. Where a power of
18attorney grants an agent specific authority over digital
19assets or general authority to act on behalf of the principal,
20the custodian shall disclose a catalogue of electronic
21communications sent or received by the principal and digital
22assets, other than the content of electronic communications,
23if the agent provides to the custodian a written request for
24disclosure, a copy of the power of attorney giving the agent
25specific authority over digital assets or general authority
26to act on behalf of the principal, and a certification by the
27agent that the power of attorney is in effect.
28The bill provides that a custodian shall disclose to a
29trustee that is an original user of an account any digital
30asset of the account held in trust. The bill provides that
31unless otherwise ordered by the court, directed by the user, or
32provided in a trust, a custodian shall disclose to a trustee
33that is not an original user the content of an electronic
34communication sent or received by a user if the trustee gives
35the custodian a written request, a certified copy of the trust
-16-1that includes consent to disclose the content of electronic
2communications to the trustee, and a certification by the
3trustee that the trust exists and the trustee is a currently
4acting trustee. A custodian shall disclose to a trustee
5digital assets in which the trust has an interest and that
6are not electronic communications if the trustee gives the
7custodian a written request, a certified copy of the trust
8instrument or certification, and a certification by the trustee
9that the trust exists and the trustee is a currently acting
10trustee.
11The bill provides that after an opportunity for a hearing,
12the court may grant a conservator or guardian access to
13a ward’s digital assets. The bill also provides that a
14custodian shall disclose to a conservator or guardian the
15catalogue of electronic communications of a ward and any of
16the ward’s other digital assets, other than the content of
17electronic communications, if the conservator or guardian
18provides the custodian with a written request for disclosure
19and a copy of the court order that gives the conservator or
20guardian authority over the ward’s digital assets. If the
21conservatorship or guardianship is not limited, the conservator
22or guardian may request a custodian to suspend or terminate an
23account of the ward for good cause.
24The bill imposes on a fiduciary the duties of care, loyalty,
25and confidentiality and specifies a fiduciary’s authority with
26respect to digital assets of a user.
27The bill provides that a custodian has 60 days to comply with
28a request under the new Code chapter. If the custodian fails
29to comply, the fiduciary may apply for a court order directing
30compliance.
31The bill provides that a custodian and the custodian’s
32officers, employees, and agents are immune from liability for
33an act or omission done in good faith in compliance with the
34new Code chapter.
35The bill provides applicability provisions. The bill
-17-1applies to a fiduciary acting under a will or a power of
2attorney executed before, on, or after the effective date of
3the bill. The bill applies to a personal representative acting
4for a decedent who dies before, on, or after the effective date
5of the bill. The bill applies to a conservator or guardian
6acting for a ward on or after the effective date of the bill.
7The bill applies to a trustee acting under a trust created
8before, on, or after the effective date of the bill.
9The bill makes conforming changes.
-18-jh/rj