Bill Summary for S 805 (2015-2016)

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Summary date: 

May 3 2016

Bill Information:

View NCGA Bill Details2015-2016 Session
Senate Bill 805 (Public) Filed Tuesday, May 3, 2016
Intro. by Hartsell.

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Bill summary

Enacts new GS Chapter 36F, Revised Uniform Access to Digital Assets Act, setting out 27 terms and definitions for use in the bill. Defines digital asset as an electronic record in which an individual has a right or interest. The term does not include an underlying assest or liability unless they are also electronic records. Provides that the Chapter applies to fiduciaries acting under a will or power of attorney, personal representative, or appointed guardian or trustee, acting under a will or trust created before, on or after the effective date of the act.  Sets out provisions to provide for the disclosure of digital assets by way of an online tool to direct the release of the digital assets to a designated recipient and sets out further provisions governing a user's direction for disclosure of digital assets. Specifies that this new Chapter 36F does not change or impair rights held by custodians pursuant to a terms-of-service agreement, nor does it give a fiduciary or designated recipient any new or expanded rights other than those held by the user. Includes procedure for disclosing digital assets, including the granting to a fiduciary or designated recipient full access to a user's account at the custodian's sole discretion. Further provides for procedure if specified release of digital assets would impose an undue burden on the custodian.  Specifies that if consented to or directed by a court, a custodian must disclose to a personal representative of the estate the content of electronic communication sent or received by the user if specified items have been given to the custodian, including but not limited to a written request for disclosure in physical or electric form, certified copy of the death certificate of the user, or a certified copy of letters of administration or letters testamentary of the personal representative. Sets out similar proceedings for the disclosure of other digital assets.

Includes other statutes that include provisions establishing procedures for the disclosure of electronic communications and digital assets of a principal, defined as an individual who grants authority to an agent in a power of attorney. Sets out provisions governing the disclosure of digital assets held in trust when the trustee is the original user and governing the disclosure of electronic communications and other digital assets held in trust when the trustee is not the original user.

Allows the court to grant a guardian access to a ward's digital assets after a hearing on a motion in the cause. Sets out the conditions under which the custodian must disclose electronic communications and digital assets to the guardian.

Further specifies that legal duties imposed on a fiduciary charged with managing tangible property also apply to the management of digital assets, including duty of care, loyalty, and confidentiality. Sets out further duties and powers a fiduciary can have depending on authority, including the right to access any digital asset and use of the decedent's property, tangible and personal property. Sets out the procedure under which a fiduciary may request a user's account be terminated.

Specifies compliance requirements for any custodian, that no later than 60 days after receipt of the required information, the custodian must comply with requests made pursuant to this Chapter from a fiduciary or designated recipient. Provides that in certain circumstances a custodian can require a court order before disclosure. Provides for immunity for custodians when performing work in good faith. 

Makes multiple conforming changes to GS 14-458, computer trespass; penalty; GS 28A-13-3, Powers of a personal representative or fiduciary; GS 32-27, Powers which may be incorporated by reference in trust instrument; GS 32A-1, Statutory Short Form of General Power of Attorney; GS 32A-2, Powers conferred by the Statutory Short Form Power of Attorney set out in GS 32A-1; GS 35A-1251, Guardian's powers in administering incompetent ward's estate; GS 35A-1252 Guardian's powers in administering minor ward's estate; and GS 36C-8-816, Specific powers of trustee. All conforming changes are made in order to provide for the obtaining, requesting, and authorization to disclose digital assets pursuant to the powers and duties previously included in the specified sections. 

Directs the Revisor of Statutes to print relevant portions of the official comments to the Revised Uniform Fiduciary Access to Digital Assets Act (2015).

Includes a severability clause.