Is Your Power of Attorney Ready for the Digital Era?

For several decades I have been advocating the importance of executing a General Durable Broad Power of Attorney that allows one’s nominated agent(s) to do virtually all that the principal of the Power of Attorney could do. This includes executing an expanded version of the New York Statutory Gifts Rider, granting broad gifting powers to the agent(s) in the event of one’s incapacity or illness.

Just as the lack of adequate gifting powers may sabotage many Powers of Attorneys, it is now inevitable that the failure to address digital assets and accounts may severely hamper a Power of Attorney’s intended use. Digital assets include digital files, music, photographs, social network accounts and file sharing accounts stored on one’s digital devices such as desktop computers, laptops, tablets and even cell phones.

One would be hard pressed to find a millennial that does not have an online banking account or some money in a fantasy sports account. It is inevitable that as time passes, online banking and digital file storage will be ubiquitous and digitally owned assets will be the norm. However, if said online accounts and digital assets are not specifically addressed in one’s Durable General Power of Attorney, one’s agent will encounter great difficulty in being able to access said accounts and assets and may be forced to resort to court intervention if the principal of the Power of Attorney is suffering from some illness or incapacity that does not allow him or her to access said digital accounts. Additionally, the principal of a Power of Attorney may have great amounts of personal information stored in email accounts, smartphones, laptops, desktops and other devices that are not referred to in one’s Power of Attorney which may limit the agent(s) under the Power of Attorney from having access to same.

In addition to not addressing digital assets, the failure to execute the Statutory Gifts Rider with modified gifting powers is the most common inadequacy seen in a standard Durable Short Form Power of Attorney. Without the necessary expanded gifting powers or power to create and fund irrevocable and revocable trusts it may be necessary that a Guardianship proceeding be commenced in the court so that the required acts can be engaged in.

In conclusion, I strongly urge you to review your Power of Attorney to determine whether it is sufficiently broad with respect to digital accounts, assets and electronic devices as well as allowing one’s agent(s) to gift and transfer assets to other’s and perhaps trusts. If you don’t have a Power of Attorney you should execute one as soon as possible. Even in this digital age, it is a very important document to have.