SF 333 — A bill for an act relating to a fiduciary’s access to digital assets and including applicability provisions. (Formerly SSB 1086.) Effective 7-1-17.

A file-stamped copy of the court order that gives the conservator or guardian authority over the digital assets of theSenate ward.File 333, p.

11 the ward.

LSBSec. 2106SV (1) 87 -11- jh/rj 11/18 S.F.

333 Sec.

A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer-fraudSenate andFile unauthorized-computer-access333, laws,p. including section 716.6B.

12 computer-fraud and unauthorized-computer-access laws, including section 716.6B.

Is an authorized user for the purpose of computer-fraud LSBand 2106SVunauthorized-computer-access (1)laws, 87including -12-section jh/rj716.6B. 12/18 S.F.

333 and unauthorized-computer-access laws, including section 716.6B.

Not later than sixty days after receipt of the information required under sections 638.7 through 638.15, a custodianSenate shallFile comply333, withp. a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account.

If13 the custodian failsshall tocomply comply,with thea fiduciaryrequest orunder designatedthis recipientchapter mayfrom applya tofiduciary theor courtdesignated forrecipient LSBto 2106SVdisclose (1)digital 87assets -13-or jh/rjterminate 13/18an S.F.account.

333If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.

This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 LSBSenate 2106SVFile (1)333, 87p. -14- jh/rj 14/18 S.F.

33314 U.S.C.

EXPLANATION______________________________ The______________________________ inclusionJACK ofWHITVER thisLINDA explanationUPMEYER doesPresident notof constitutethe agreementSenate withSpeaker of the explanation’sHouse substanceI byhereby thecertify membersthat ofthis bill originated in the generalSenate assembly.and is known as Senate File 333, Eighty-seventh General Assembly.

This______________________________ billW. relates to a fiduciary’s access to digital assets and includes applicability provisions.

TheCHARLES billSMITHSON definesSecretary “digitalof asset”the asSenate anApproved electronic_______________, record2017 in______________________________ whichTERRY anE. individual has a right or interest.

“DigitalBRANSTAD asset”Governor does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

“Digital asset” does not include health information or individually identifiable health information as those terms are defined in the federal Health Insurance Portability and Accountability Act.

“Fiduciary” is defined as an agent under a power of attorney pursuant to Code chapter 633B, a conservator, guardian, personal representative, or trustee as each is defined under Code section 633.3, or a trustee as defined in Code section 633A.1102.

“Custodian” is defined as a person that carries, maintains, processes, receives, or stores a digital asset of a user.

“User” is defined as a person that has an account with a custodian.

The bill provides that a user may direct a custodian to disclose to the designated recipient or not to disclose the user’s digital assets to a fiduciary through an online tool, a will, trust, power of attorney, or other record.

A terms-of-service agreement which the user agreed to may also provide whether the custodian shall disclose the user’s digital assets to a fiduciary.

The bill provides that a custodian shall disclose the electronic communications of a deceased user to the personal representative of the estate if the personal representative provides the custodian a written request for disclosure, LSB 2106SV (1) 87 -15- jh/rj 15/18 S.F.

333 a certified copy of the death certificate, letters of appointment, and documentation evidencing the user’s consent to disclosure of the content of electronic communications, unless the user provided such direction in an online tool.

A custodian shall disclose other digital assets of a deceased user to the personal representative if the personal representative provides a written request for disclosure, a certified copy of the death certificate, and letters of appointment.

The bill provides that if a power of attorney expressly grants an agent authority over the content of electronic communications, a custodian shall disclose such content if the agent provides to the custodian a written request for disclosure, a copy of the power of attorney expressly granting the agent authority over the content of the principal’s electronic communications, and a certification by the agent that the power of attorney is in effect.

Where a power of attorney grants an agent specific authority over digital assets or general authority to act on behalf of the principal, the custodian shall disclose a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, if the agent provides to the custodian a written request for disclosure, a copy of the power of attorney giving the agent specific authority over digital assets or general authority to act on behalf of the principal, and a certification by the agent that the power of attorney is in effect.

The bill provides that a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust.

The bill provides that unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user the content of an electronic communication sent or received by a user if the trustee gives the custodian a written request, a certified copy of the trust LSB 2106SV (1) 87 -16- jh/rj 16/18 S.F.

333 that includes consent to disclose the content of electronic communications to the trustee, and a certification by the trustee that the trust exists and the trustee is a currently acting trustee.

A custodian shall disclose to a trustee digital assets in which the trust has an interest and that are not electronic communications if the trustee gives the custodian a written request, a certified copy of the trust instrument or certification, and a certification by the trustee that the trust exists and the trustee is a currently acting trustee.

The bill provides that after an opportunity for a hearing, the court may grant a conservator or guardian access to a ward’s digital assets.

The bill also provides that a custodian shall disclose to a conservator or guardian the catalogue of electronic communications of a ward and any of the ward’s other digital assets, other than the content of electronic communications, if the conservator or guardian provides the custodian with a written request for disclosure and a copy of the court order that gives the conservator or guardian authority over the ward’s digital assets.

If the conservatorship or guardianship is not limited, the conservator or guardian may request a custodian to suspend or terminate an account of the ward for good cause.

The bill imposes on a fiduciary the duties of care, loyalty, and confidentiality and specifies a fiduciary’s authority with respect to digital assets of a user.

The bill provides that a custodian has 60 days to comply with a request under the new Code chapter.

If the custodian fails to comply, the fiduciary may apply for a court order directing compliance.

The bill provides that a custodian and the custodian’s officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with the new Code chapter.

The bill provides applicability provisions.

The bill LSB 2106SV (1) 87 -17- jh/rj 17/18 S.F.

333 applies to a fiduciary acting under a will or a power of attorney executed before, on, or after the effective date of the bill.

The bill applies to a personal representative acting for a decedent who dies before, on, or after the effective date of the bill.

The bill applies to a conservator or guardian acting for a ward on or after the effective date of the bill.

The bill applies to a trustee acting under a trust created before, on, or after the effective date of the bill.

The bill makes conforming changes.

LSB 2106SV (1) 87 -18- jh/rj 18/18