Dear Mr. Premack: Although I am 92, I have kept up with and use a computer regularly. My son has helped me to establish online banking accounts, credit card information, email, Facebook, pictures and a lot more. I’m enjoying it very much. Yesterday my son asked how I am keeping my passwords, and we started wondering if my son could legally access all my computer files if I become disabled. Do you have any suggestions? – J.K.
Your situation would not have been a topic even five years ago. The transition to a less-paper world is wonderful and is accelerating, but it does raise new practical and legal issues. In the past, your bank statements came in the mail and you stored them in paper form. If someone needed to see them, they were available. Now that you get all of your bank statements online, you have to be sure that same level of access can continue.
Obviously, though, you do not want just anyone to see your confidential records. Only legally authorized individuals should have access. Who should be authorized, and how do you give them that authorization?
First, you might authorize a joint account holder. The authorization is given through the bank’s internal paperwork (often the account signature card). When the online access is created, you share the password with the joint account holder, who can then access all of the banking information – your checks, deposits, withdrawals and balances.
Second, you should authorize the Agent who you named in your Durable Power of Attorney. To do so, your Durable POA should be modified (or created) to include a paragraph which addresses your computer records and digital assets.
The idea that you might own “digital assets” is fairly new. All of the photographs you have saved to your Facebook account are valuable, and are digital. If they were your only copy and Facebook deleted them, you would have lost a valuable asset. If you become disabled (or if you die) you may want all of those photos to be available to your Agent or Executor. But digital assets can go beyond pictures. Do you have your own website? Your domain registration is a digital asset. Have you stored years of correspondence in your email account? All of those records are digital assets.
Thus, you Durable POA should contain a special paragraph which gives your Agent legal authority to access your computer, your hard drives, you smartphone, your tablet computer, your online storage (like Dropbox or OneDrive) and your bank and broker accounts. It should authorize your Agent to access your Facebook account, your google plus account, your Amazon account and the thousand others you may have established. It should give your agent authority to access your password list.
Similarly, your Will should contain a special paragraph giving similar authority to your Executor. But additionally, your Executor will be authorized to distribute digital assets to the heirs you specify, and will be given authority to close your various online accounts. The wording of your Will should give your Executor access to your password list.
How create and keep a secure password list? Many people keep their passwords in a notebook next to their computer, which is not secure. Instead, consider using a password storage program (like KeePass, LastPass or Dashlane). Or you can write your list in a MS Word document and then password protect that document (so the only password you must remember and must give to your Agent and Executor is the password to your list).
Paul Premack is a Certified Elder Law Attorney in San Antonio. His firm has offices in Texas and Washington, and handles estate planning for all ages, probate law and business entity formation issues. Submit estate, probate, elder law and LLC questions at www.texasestateandprobate.com or go there to view the archive of past legal columns.
This column first appeared in the San Antonio Express-News on July 28, 2014. Click to view.