In this day and age, it is rare to meet someone who does not have some sort of online account, especially when you consider the appeal of-and easy access to-social media. However, have you ever wondered what happens to your online accounts when you pass away or even when you lose capacity?
With a wealth of online information comes restrictions on who can access that data. This can cause issues when a person becomes incapacitated or dies since they cannot ask for or give express consent to access their personal account information. Fortunately, a new act in Saskatchewan specifies what can be done in these situations.
The Fiduciaries Access to Digital Information Act, SS 2020, c 6(the "FADIA") came into force on June 29, 2020. The act clarifies that certain Property Guardians, Property Attorneys, Trustees, and Executors/Administrators of estates (aka, "Fiduciaries") have a right to access "Digital Assets" that belong to another person-specifically, the person over whom the Fiduciary holds a Guardianship Order, Power of Attorney, executorship, etc.
The FADIA applies to holders of Digital Assets that were created before or after the enactment of the act, with one exception: it does not apply to an employer's Digital Assets that an employee uses or used in the ordinary course of an employer's business. For example, a Property Attorney under a Power of Attorney ("POA") cannot demand access to an employee's Digital Assets that he or she used for work, even though the employee's POA gives the Property Attorney the power to deal with the employee's assets.
However, let us assume that the employee Digital Assets exception does not apply. Generally speaking, the FADIA states a Fiduciary of a person has the right to access that person's Digital Assets. One caveat is that the right is subject to (and consistent with) the provisions in any of the following documents:
(a) the Will of a deceased person;
(b) Letters of Administration;
(c) a Guardianship Order;
(d) a Power of Attorney;
(e) a Trust;
(f) an Order of the Court; or
(g) a "Service Agreement" agreed to after the FADIA came into effect (assuming it does not contravene the other provisions of the act).
To access a Digital Asset, a Fiduciary may make a written request to the holder of the Digital Asset that includes the original document that grants the Fiduciary the authority to access the asset. According to the FADIA, the holder must then provide the Fiduciary with access to the Digital Asset within 30 days of receipt of the request.
This act can have application in various circumstances. For example, an Executor of an estate should be able to request passwords for social media accounts of the deceased person. As another example, a Property Guardian should be permitted to access the online banking information of a person that was set up before the person became incapacitated.
For more information on the FADIA, including the application of the act to your specific set of circumstances, please reach out to one of our wills and estates lawyers for assistance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
