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Abstract

California enacted the Revised Uniform Fiduciary Access to Digital Assets Act (the California RUFADAA) to govern the disclosure (or non-disclosure) of digital assets when a California resident dies. Digital assets include not just emails and social media accounts but may also include online files and assets, digital currencies, domain names, and blogs. The California RUFADAA ostensibly governs the disclosure of digital assets only when a California resident dies, and it, therefore, does not govern the scenario when a California resident becomes incapacitated and can no longer handle his or her digital assets. This scenario is likely to become more common because Californians (like most Americans) increasingly are living longer, owning more digital assets, and holding their assets (non-digital and digital) in revocable living trusts. Forty-five other states have enacted laws governing the digital assets of both deceased individuals and individuals who are alive but incapacitated. Currently, California ostensibly has no guidance for a fiduciary currently administering the digital assets of a Californian who is incapacitated. The California RUFADAA, therefore, should be amended to apply to individuals who are still living but who become incapacitated. If the California RUFADAA is not so amended, this article proposes (1) the California RUFADAA be amended to clarify whether it applies to California users who have successfully used an online tool to authorize a “designated recipient” to administer the user's digital asset upon the user's incapacity and whose “designated recipient” is currently acting and administering the user's digital asset, and (2) the California RUFADAA be amended to delete apparently superfluous references to an individual who has, under a power of attorney, authorized an agent to handle digital assets when the individual becomes incapacitated.

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