If we need someone to act or make decisions on our behalf, we can designate a surrogate or proxy. This agent may be able to vote shares of stock for us, waive our rights in court, liquidate our assets after we die, and even determine what end-of-life care we receive. But we have adopted laws that make it difficult or may even prohibit them from accessing our digital assets.
One reason may be trust-related, because digital assets often feel personal and private. Trusting agents is critical because they stand in our shoes, act on our behalf, and their acts are generally treated as our acts. Because some agents have abused this power, we have scores of laws protecting us, including fiduciary duties, liability for misconduct, and specific documents and language that must be used to authorize an agent.
These laws mitigate the risk of abuse and give us comfort authorizing agents to manage our estates after we die. If we have private or sensitive matters, we can appoint separate agents to manage those in a prescribed manner. These guardrails help us trust agents that need to access our private assets, secret files, personal notes, and dirty laundry. So why not digital assets?
Regardless of the authority granted, online tools such as Facebook’s Legacy Contact, Apple’s Legacy Contact, and Google’s Inactive Account Manager act as additional gate keepers. These tools supersede ordinary powers of attorney, restricting and limiting what our agents can access and do. Microsoft and Yahoo! have similar policies. These custodians hold our digital assets, and these tools and policies set the privacy bar to ‘high’ permanently. Some custodians take more flexible approaches, such as Github’s Successor, which allows users to designate a successor to have full access to their digital assets. Concerns about privacy can then be managed by powers of attorney restricting what our successors have authority to do. However, even these custodians can change their terms of service at any time and without notice, so agents must be digitally-savvy. Today, it is possible to completely preserve these digital assets with specialized estate planning, but few agents are equipped to provide solutions that are secure, reliable, and legally permissible.