Author Archives: Kathy Lane

Does your state law protect your digital assets?

Last year, a comprehensive law was proposed by the National Conference on Uniform State Laws. That law places access to a wide range of digital assets on a par with access to traditional tangible assets.

“As the number of digital assets held by the average person increases, questions surrounding the disposition of these assets upon the individual’s death or incapacity are becoming more common. Few laws exist on the rights of fiduciaries over digital assets. Few holders of digital assets and accounts consider the fate of their online presences once they are no longer able to manage their assets.”

Nearly half of U.S. state introduced legislation in 2015 to enact this revised Uniform Access to Digital Assets Act (UFADAA). However, most of them have been unable to actually pass the law due to opposition from Internet and telecommunications companies. As of March 2016, only four state have enacted legislation based on this Act – Oregon, Wyoming, Tennessee and Florida.

Are you concerned about who will have access to your digital assets when you become incapacitated or die? Do you care whether family members can see your emails and other personal electronic correspondence? Would you prefer that loved ones can continue to maintain your Facebook account or do you want it shut down? These are just a few of the questions that the revised UFADAA may be able to address…only if your state adopts appropriate legislation.

For more information about digital assets, check out our book ACCESS DENIED or go to our website www.DieSmart.com.

Which state is the first to adopt the revised UFADAA?

Oregon became the first state to adopt the revised Uniform fiduciary Access to Digital Assets Act when Governor Kate Brown signed it into law on March 3, 2016. It will become effective on January 1, 2017.

The revised act is designed to ensure that account holders can retail control of their digital property and can plan for its disposition after their death. It also helps avoid circumstances where online service providers delete deceased’s accounts without authorization or refuse to hand over access and information to permitted fiduciaries.

Will your state be next?

For more information about the revised UFADAA, go to www.diesmart.com.

Do you want to plan your own funeral?

It used to be that if you wanted to plan your own funeral, you would sit down with pen and paper and write down your ideas. The ideas might be very simple or, conversely, completely elaborate. However, they would only be documented on that paper you prepared.

Today there are alternatives. Three of the latest apps that can help you are Everest, Cake and SafeBeyond. These death apps promise to “help a person organize his or her entire online life into a bundle of digital living wills, funeral plans, multimedia memorial portfolios and digital estate arrangements.” In addition, some death apps digitally transmit account passwords to your loved ones after you die.

Another service, Afternote, offers templates so you can create a multimedia tribute about yourself while you’re still alive.

The article I read on this subject had a headline “My name’s Will, and I’m dead.” (See photo above.) While he was still alive, Will left a detailed plan for the funeral he wanted and his family was able to use his plan to make arrangements. He made a video explaining what he’d done and explaining why. After his death, his loved ones watched the video and, although they were upset, the were not as stressed as they would have been if they had to plan the whole thing themselves and guess at what Will would have wanted.

Many people are beginning to incorporate their digital lives into their end of life plans and are recognizing how important a step it is. According to a 2011 McAfee study, the average American valued their digital assets at around $55,000 and had at least 90 online accounts. If the valued assets and access to the online accounts are not documented, they may all be lost after death.

It is important that you start making a plan today. It doesn’t matter whether it’s on paper or developed thru an online software program like one of these. Regardless, you should start planning today.

In addition to looking at software programs, you should read our book Access Denied to find out what you have to do to make sure that your loved ones will have access to everything once you’re gone and check out our website www.diesmart.com.

Who decides whether to terminate end of life care?

The answer may seem obvious. You, or your designated agent make this decision. You have prepared a living will and left instructions for your agent to follow or, if you are still able to speak for yourself, you tell the doctors what you want.

In Texas, this is not true. Because of the Texas Advance Directives Act, a hospital ethics panel – not you or your family – decide whether to end care!

Last October, Evelyn Kelly learned this the hard way. Her son, David Chris Dunn, a 46 year old former county sheriff had entered Houston Methodist Hospital, transferred from Bayshore Medical Center in Pasadena. He had a mass on his pancreas and was in renal failure.

He’d been intubated for a month and the doctors had kept him sedated so he wouldn’t disturb the tube in his throat. Dunn couldn’t verbally respond to questions but he followed his mother’s movements with his eyes and he could nod in response to his mother’s questions.

One day, the chairman of the hospital’s Bioethics Committee told Ms. Kelly that the doctors had met and decided it was time to end David’s medical care. The hospital ethics committee was going to meet in 48 hours to make its final decision. Ms. Kelly had made it clear that, as a born-again Christian, she wasn’t going to take her son off of life support.

“From Kelly’s standpoint, every second her son lived was a reason for hope, but for the doctors, it had meant weeks of treating a man who wasn’t showing any signs of improvement beyond simply having a pulse.”

Chris Dunn died in December 2015.

“In Texas, it doesn’t matter what instructions you’ve previously given or what your relatives say: If you’re in critical condition, you’re dependent on machines to survive and hospital officials decide it’s time to pull the plug, you will die. And it’s completely legal.”

It’s rare for a patient’s case to end up before a hospital ethics committee only because most patients die before the process is completed. However, when it does, it’s very difficult to stop the process based on a law signed by George Bush in 1999.

There are several other cases that have been reported. Here’s one that happened in 2005 when Zee Klein’s 91 year old mother, Edith Pereira, was taken to the Texas Medical Center with a urinary tract infection. She had brittle diabetes and had gone blind from the disease but her heart and lungs were in good shape, she could still feed herself and she was fairly lucid most of the time.

The family was focused on getting the infection under control so didn’t argue when a doctor put Pereira on a dose of morphine that would keep her unconscious, and thus unable to eat and regulate her blood sugar. When the medical team told Klein they wouldn’t install a feeding tube for her mother, Klein had a problem. One of the doctors told her “ We feel that your mother’s spirit is telling us she wants to die!”

Klein was dumbfounded. She managed to have her mother transferred to another hospital where she lived for about six months before dying.

Be sure you know what’s legal in your state and be prepared. For more information about advance healthcare directives and living wills, go to www.diesmart.com.

Can a will be kept private?

In most cases, the answer is no. When a person’s estate is being settled thru the will they prepared, it is usually public record. To keep estate plans secret, they need to be contained in a trust document, not just a will.

However, in the case of Harper Lee, the author of To Kill a Mockingbird, an exception has been made. A probate judge in Alabama where she died signed an order for the will to be sealed after a request from attorneys for Miss Lee’s personal representative. Her family agreed to the request.

She died in February 2016 at the age of 89 and had always been a person who highly valued her privacy.

The release if the ruling from the judge came after there was a “threat of public intrusion and harassment for Lee’s heirs”.

You are probably not a famous author and will not be granted an exception by a probate judge. Therefore, you need to carefully consider whether it is important to you to keep your estate plans within your family or whether it’s okay for them to be public record.

Regardless of what you decide, go to our website www.diesmart.com to get helpful tips about estate planning and other things related to end of life matters.