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Looking at Florida’s Fiduciary Access to Digital Assets Act, P.2

Previously, we began looking at Florida’s Fiduciary Access to Digital Assets Act, which allows owners of digital assets to authorize disclosure of those assets to a trusted individual, or fiduciary. When an account holder or digital asset owner provides lawful consent for disclosure to a fiduciary, businesses are legally protected from turning over that information to a fiduciary.

As we noted, Florida law distinguishes between several categories of fiduciaries, and specifies different requirements for them to gain access to digital assets. For personal representatives, access to the content of electronic communications is allowed only if consent to disclosure is provided for by will, trust, power of attorney, other court record, or by court order. Access to communications that do not qualify as content communications, and to other digital assets, is generally allowed unless the owner of the assets has expressed the desire to keep them private, or the court orders them to be kept private. 

For guardians, access to the content of electronic communications is only allowed if the ward provided consent before becoming incapacitated, while access to noncontent communications and other digital assets is only allowed if authorization is provided by letters of guardianship or by court order.

When a fiduciary is selected through a power of attorney, the principal must expressly authorize access to the content of electronic communications, either online or through the power of attorney, for disclosure to be allowed. For noncontent communications and other digital assets, access is allowed when there is a grant of general or specific authority, unless access is expressly prohibited by the principal, the owner of the assets, or the court.

The final category of fiduciary recognized under Florida’s Fiduciary Access to Digital Assets Act is trustees. In our next post, we’ll look at the access rules for trustees, and how an experienced attorney can help include digital assets in the estate planning process. 

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