The Uniform Law Commission drafted an act to provide fiduciaries with the same access to digital assets as they have had to tangible assets. The Uniform Fiduciary Access to Digital Assets Act (the “Act”) has been introduced in over twenty states, including Minnesota. The Act was introduced and enacted in the Minnesota House of Representatives. It was introduced in the Minnesota Senate but has not currently been enacted. The text of the Act as introduced in the House can be found here.
Until Minnesota, passes a bill that specifically address digital assets, it is that much more important to continue to address your digital assets within your estate plan. Access to most social media accounts (such as Facebook, LinkedIn, email accounts, Twitter, etc.) of a decedent or protected person (incapacitated or incompetent) is governed by the terms of service of that particular service provider. Service providers are starting to address the issue of access by allowing individuals to designate access to another individual in the event of death. See my previous article on planning for digital assets here.
However, a recent, Wall Street Journal article, discussed that clients are even going a step further by creating amendments or an addendum to their estate plan documents to specifically address their digital assets. When we discuss planning for digital assets or accounts, the focus is often on our social media accounts, but the article raised the issue about eBay, PayPal, and iTunes accounts, which can hold considerable financial assets. As the article mentions, “…leaving [such] accounts open after [a client’s] death could leave his heirs vulnerable to having those accounts hacked, a logistical nightmare if [a fiduciary] doesn’t have access to them.”1
Those types of accounts are often forgotten and that could mean heirs loose out on some additional financial assets. It is important to address those types of accounts within your estate plan to ensure they are secured and transferred properly. If your estate planner does not raise the issue of digital assets, be sure to inquire about including provisions within your plan to address them.
1Estate Planning for Digital Assets, The Wall Street Journal, May 11, 2015.
This is the third post in a series discussing different aspects on Minnesota’s new statute, the Uniform Trust Code (UTC), which becomes effective January 1, 2016. While this series will be useful information for all Epilawg readers, it is geared towards those readers that are attorneys, fiduciaries and their clients. See Part I here and Part II here.
The newly adopted UTC introduces the concept of the silent trust to Minnesota law. Under Section 501C.0813, settlors and their estate-planning attorneys will now be able to limit the trustee’s common law duty to keep beneficiaries reasonably informed by expressly including a provision in the trust instrument that such duty does not apply to the trust’s administration. (Even so, the inclusion of such a provision will not preclude the trustee from seeking judicial approval of its administration of the trust and, in doing so, providing the statutorily required notice to the beneficiaries.) Nonetheless, this provision constitutes a dramatic change from existing law, which recognizes a broad common law duty to keep beneficiaries informed that cannot be drafted around.
Trust Appointment of a Representative for Beneficiaries
Furthermore, for settlors who would prefer to withhold information regarding the trust or its assets from the beneficiaries, the new statute will also allow for the appointment of a representative who can receive information in lieu of the beneficiaries. This representative, who can be the settlor, the attorney, or other trusted third party, can request and must be given the information necessary to protect the beneficiaries’ interests, and if necessary, enforce those interests. The representative does not, however, have a fiduciary duty to enforce the trust or take other action on behalf of the beneficiaries.
Why should a “notice to representative” provision be considered by drafting attorneys and their clients? Most significantly, allowing disclosure of information to a beneficiary’s representative permits the trustee to gain the benefit of the shortened statute of limitation under Section 501C.1005 (which will be the subject of its own future article in this series) and may thereby discourage future trust litigation.
Even though silent trusts will now be permitted under Minnesota law, fiduciaries should remain wary of any trust that expressly prohibits the trustee from sharing information with the beneficiaries. At a minimum, prospective trustees should carefully examine such provisions during the on-boarding process to make sure that they comply with Section 501C.0813’s requirements. They should also carefully consider whether, given existing family dynamics, compliance with this type of provision might make them, as the fiduciary responsible for the trust’s administration, a target for future litigation brought by the beneficiaries. In short, just because silent trusts will now be enforced under Minnesota’s UTC does not mean that the principle of “caveat emptor” no longer applies to trustees in deciding whether or not to accept such fiduciary appointments.
POLST stands for “Provider Orders for Life Sustaining Treatment.” It is a doctor-signed medical order form that communicates a patient’s end-of-life health care wishes to other health care providers during an emergency. Patients with serious health conditions who need to make decisions about life sustaining treatment in advance of medical emergencies should have a POLST form. The form is recommended even for patients who have a health care directive because it provides much greater detail as to the patient’s emergency care.
Additionally, the POLST form serves as a tool by which medical professionals can discuss end-of-life treatment options with patients already diagnosed with serious illnesses. During the discussion, patients have an opportunity to ask their primary health care provider detailed questions about treatment options available to them, and thereby make informed decisions. Once a treatment plan has been selected by the patient, the health care provider will sign the form as a medical order, which can then be used by EMS personnel and other health care professionals during an emergency.
Keep in mind that there are several ways a POLST form can be voided:
(1) the patient can direct the provider to revoke the form;
(2) the patient can direct the provider to fill out a new and revised form, which will have a more current date;
(3) the patient can draw a line through the form and write “VOID” on it; or
(4) the patient can tear, burn or otherwise destroy the form.
Articles and Resources on the POLST form:
NY Times article – The Right Paperwork for Your End of Life Wishes
The National POLST Paradigm Website
Minnesota Medical Association – THE POLST FORM FAQ
If you think a POLST would be right for you, contact your health care provider to learn more.