Going through a divorce? Don’t forget to update your Will!
Our digital footprint exists from cradle to grave; what happens to your digital assets after your death and what steps should you take to safeguard against misdirection of assets, or loss of sentimentally or financially valuable materials?
The short answer is there is no right answer and it’s legally grey.
Apple has recently announced the introduction of a new digital legacy feature which allows a nominated person to access someone’s Apple account in the event of their death for the first time. It remains to be seen if Apple will lead the way, but there is no doubt that some consistency is needed.
There’s no definition of what constitutes a “digital asset” and in reality it is actually means “information in digital form” rather than assets such as bank accounts and property. Digital assets include blogs, digital photos, online bank accounts, Bitcoins, e-books, media players such as iTunes, online gaming accounts such as PlayStation, and social media profiles. The law recognises that a digital asset can be property and that a digital asset can be “owned”. However, it does not recognise the possibility that a digital asset can be “possessed” because the concept of “possession” is currently limited to physical things. This has consequences for how digital assets are transferred, secured and protected under the law.
There is no consistency between how different service providers and social media giants deal with sentimental items. Each platform has a different approach to dealing with accounts of deceased people. Social media platforms such as Facebook, Instagram or Twitter can often either be frozen and turned into an online memorial for friends and family, or taken offline. Some assets are not owned by the individual and are merely licences to use a website’s services and so may terminate on death. Email and cloud storage services often view assets as information. They do not accept that personal representative have any relevant legal rights and rely on their terms and conditions, which subsequently refuses access without a court order.
Tech giants such as Apple have been lobbied for years to formalise the access of emails, pictures and other content following the death of someone. Until now, Apple has required the Grant of Probate and a court order to access the deceased’s account. Whilst the Grant of Probate is achievable and required to administer a deceased’s estate in any event, a court order is far more onerous, time consuming and expensive.
The new feature allows a trusted person access to some but not all elements of a person’s Apple accounts. Payment information, subscriptions, licensed media and Keychain password data will not be included. Importantly, you will still need any passcode to access the device. The new feature is not the same as gaining access to a passcode-locked device, which Apple is unable to provide as the company does not possess a copy of the passcode or the ability to override it. The new protocol will allow access on production of the deceased’s death certificate and an access key.
Cryptocurrency is also dealt with slightly differently; they blur the distinction between information and assets, because the asset can only be accessed through the information of the pass key. Leaving cryptocurrency to a beneficiary in your will is a helpful indication of your wishes, but there is no custodian the personal representative can produce a Grant to in order to access the underlying assets. If you have bitcoin, your personal representative will only be able to access it with a pass key. It is therefore vital that the pass key is made available to them, either in a sealed letter to be opened on your death, or during your lifetime.
This is a developing area of law, and there is no definitive answer as to how your digital assets will be dealt with on your death. In addition to ensuring your Will includes your digital assets, top tips are:
Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.
In recent years there have been calls for a change in the law to protect vulnerable adults from falling victim to what has become known as “predatory marriage”. This is due to a rise in cases where fraudsters have married vulnerable and often elderly individuals, without the knowledge of their loved ones.
The Office of the Public Guardian (OPG) and the Ministry of Justice are working together to modernise the process of making and registering Lasting Powers of Attorney (LPAs). The consultation is open to the public and will remain open until 13 October 2021.
Good news – The “secret” specialist HMRC unit set up in 2019 to examine the tax avoidance risks has been wound up after finding no evidence of correlation between the use of FICs and non-compliant behaviour.
Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence.
There are several reasons why someone may need the assistance of a financial deputy, stemming from incapacity due to an accident or a consequence of old age. There is however a darker side to this type of work that Court of Protection lawyers are seeing more and more of. This relates to those who have suffered some form of financial abuse and/or undue influence.
After a spinal injury the long-term impact on your life and that of your families can be significant. You may need a care package, a new home or adaptations to their existing accommodation, therapies and specialised equipment.
The pandemic has changed the world – there is no doubt we are all “online” far more now than before. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to those ‘should never have been posted university photos‘. We collect and share moments of our lives in the digital world.
In the latest edition of the Financial Times Money Q&A, Jemma Garside, senior associate in our private client team answers a question: "Should I set up a joint lasting power of attorney for my mother?"
Subject to any restrictions or conditions in the Lasting Power of Attorney (“LPA”), a property and affairs attorney can make gifts on the donor’s behalf to the donor’s friends, family members or acquaintances on customary occasions.
Going through a divorce process is stressful. There are lots of things to think about and one of these is likely to be what you should do to protect your hard-earned money.
A donor must have the mental capacity to make a Lasting Power of Attorney (“LPA”) for property and affairs and health and care. The completed LPA is then sent to the Office of the Public Guardian (the “OPG”) for registration. Each page of the registered LPA will be stamped with ‘VALIDATED-OPG’.
As a business owner/shareholder, what would happen to your business if you were unable to make decisions – would someone be able to authorise payments or enter into contracts and keep the business running?
Lasting Powers of Attorney (LPAs) are vitally important documents. Our previous blogs have touched upon what LPAs are and top tips for anyone planning on putting an LPA in place. Most individuals should at least put in place a financial LPA to cover their home and personal finances. It is however a good idea in some cases to have a second financial LPA.
The last 12 months have put an awful lot of pressure on the family unit and sadly this has led to a spike in separation and divorce amongst married couples. With the end of the tax year fast approaching (last day Monday 5th April – Easter Monday) it is timely to consider the tax consequences of separations.
Whilst managing the property and affairs of another person a Deputy appointed by the Court of Protection may come across issues that require them to pay for legal advice and assistance on their behalf. Examples could include purchasing a property, challenging a care plan or obtaining advice about a dispute.
Partner and head of our Private Client team, James Ward, writes about the importance of entrepreneur's putting in place a succession plan to safe guard their reputation.
LPAs are important, and are steadily growing in popularity as individuals realise how necessary they are to support friends and family in the event that they lose mental capacity. Our previous blog gave an overview of how LPAs work and the requirements for making them. This time, we focus on our ten top tips for LPAs.
A Power of Attorney is a very important estate planning tool, especially when an individual loses capacity. Whilst the term ‘Power of Attorney’ seems to be thrown around a lot, it is often misunderstood or not used correctly. In fact there are several different kinds of powers of attorney that can be used for different purposes.
As we find ourselves in another national lockdown, the New Year presents an opportunity for individuals to review their assets and conduct some succession planning.
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