MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Judiciary A
By: Representative Lamar
AN ACT TO CREATE THE "FIDUCIARY ACCESS TO DIGITAL ASSETS AND DIGITAL ACCOUNTS ACT"; TO CREATE DEFINITIONS; TO PROVIDE THAT THIS ACT APPLIES TO A GRANT OF AUTHORITY TO A FIDUCIARY OVER A DIGITAL ACCOUNT OR A DIGITAL ASSET; TO PROVIDE THAT DIGITAL ASSETS AND DIGITAL ACCOUNTS OF AN EMPLOYER REGULARLY USED BY AN EMPLOYEE IN THE USUAL COURSE OF BUSINESS ARE NOT SUBJECT TO THE PROVISIONS OF THIS ACT; TO LIST THE DUTIES AND LIMITATIONS OF A PERSON THAT ELECTRONICALLY STORES DIGITAL ASSETS OR DIGITAL ACCOUNTS OF AN ACCOUNT HOLDER OR OTHERWISE HAS CONTROL OVER DIGITAL ASSETS OR DIGITAL ACCOUNTS OF THE ACCOUNT HOLDER; TO PROVIDE THAT A FIDUCIARY MAY EXERCISE CONTROL OVER ANY AND ALL RIGHTS IN DIGITAL ASSETS AND DIGITAL ACCOUNTS OF AN ACCOUNT HOLDER, TO THE EXTENT AUTHORIZED BY STATE LAW, FEDERAL LAW, REGULATIONS OR ANY END USER LICENSE AGREEMENT; TO PROVIDE THAT A FIDUCIARY'S AUTHORITY OVER DIGITAL ASSETS OR DIGITAL ACCOUNTS OF AN ACCOUNT HOLDER SHALL BE THE SAME AS THE ACCOUNT HOLDER; TO AMEND SECTIONS 87-3-7, 81-5-34, 87-3-109 AND 91-8-303, MISSISSIPPI CODE OF 1972, TO CONFORM TO THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and cited as the "Fiduciary Access to Digital Assets and Digital Accounts Act."
SECTION 2. The following words and phrases shall have the meanings ascribed in this section, unless the context clearly indicates otherwise:
(a) "Account holder" means a decedent, a disabled person, a principal of a durable personal power of attorney, a settlor of a trust which was revocable until the time of the settlor's death or incapacity, or a trust, whether or not revocable, that invokes this act.
(b) "Court" means the applicable chancery court in the State of Mississippi.
(c) "Custodian" means a person that electronically stores digital assets or digital accounts of an account holder or otherwise has control over digital assets or digital accounts of the account holder.
(d) "Digital account" means an electronic system for creating, generating, sending, sharing, communicating, receiving, storing, displaying, or processing information which provides access to a digital asset which currently exists or may exist as technology develops or such comparable items as technology develops, stored on any type of digital device, regardless of the ownership of the digital device upon which the digital asset is stored, including, but not in any way limited to, email accounts, social network accounts, social media accounts, file sharing accounts, health insurance accounts, health care accounts, financial management accounts, domain registration accounts, domain name service accounts, web hosting accounts, tax preparation service accounts, online store accounts and affiliate programs thereto, and other online accounts which currently exist or may exist as technology develops or such comparable items as technology develops.
(e) "Digital asset" means data, text, emails, documents, audio, video, images, sounds, social media content, social networking content, codes, health care records, health insurance records, computer source codes, computer programs, software, software licenses, databases, or the like, including the usernames and passwords, created, generated, sent, communicated, shared, received, or stored by electronic means on a digital device.
(f) "Digital device" means an electronic device that can create, generate, send, share, communicate, receive, store, display, or process information, and such electronic devices shall include, but not limited to, desktops, laptops, tablets, peripherals, servers, mobile telephones, smartphones, and any similar storage device which currently exists or may exist as technology develops or such comparable items as technology develops.
(g) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(h) "End User License Agreement" means an agreement between an account holder and a custodian establishing the rights and responsibilities of each. The term includes a terms-of-use agreement, terms-of-service agreement, privacy policy, terms and conditions, and license agreement.
(i) "Fiduciary" includes a personal representative appointed by the Register of Wills, a guardian appointed, an agent under a durable personal power of attorney as provided by law or a trustee as provided by law.
(j) "Good faith" means honesty in fact.
(k) "Governing instrument" means a will, trust, a durable personal power of attorney, order appointing a guardian over the property of the account holder, or other dispositive, appointive, or nominative instrument of any similar type.
(l) "Person" means an individual, corporation, statutory trust, estate, trust, partnership (general or limited), limited liability company, association, joint venture, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(m) "Valid written request" means a request made by a fiduciary with authority over the digital assets or digital accounts of another person that complies on its face with the requirements of this act.
SECTION 3. This act applies to a grant of authority to a fiduciary over a digital account or a digital asset. Digital assets and digital accounts of an employer regularly used by an employee in the usual course of business are not subject to the provisions of this act.
SECTION 4. Except as otherwise provided by a governing instrument or court order, a fiduciary may exercise control over any and all rights in digital assets and digital accounts of an account holder, to the extent authorized by state or federal law or regulations or any end user license agreement.
SECTION 5. (1) A fiduciary with authority over digital assets or digital accounts of an account holder under this act shall have the same access as the account holder, and is deemed to (a) have the lawful consent of the account holder, and (b) be an authorized user under all applicable state law, federal law, regulations and any end user license agreement.
(2) Upon receipt of a valid written request sent pursuant to the requirements of subsection (3) of this section, from a fiduciary seeking access to, transfer of, copy of, or destruction of a digital asset or digital account, a custodian shall provide the fiduciary the applicable access, transfer, copy, or destruction of the digital asset or digital account.
(3) A valid written request under subsection (2) of this section must:
(a) If by a personal representative, be accompanied by a certified copy of the letters testamentary or letters of administration which grant authority to the personal representative to administer the estate of the deceased account holder;
(b) If by a guardian, be accompanied by a certified copy of the court order that gives the guardian authority over the property of the disabled person;
(c) If by an agent, be accompanied by a certified copy of the power of attorney that authorizes the agent to exercise authority over the affairs of the principal and which includes an authorization regarding the principal's digital assets or digital accounts;
(d) If by a trustee, be accompanied by a certified copy of the trust instrument, or a certification of trust; or
(e) If by a fiduciary not otherwise specified herein, be accompanied by a certified copy of the governing instrument that authorizes the fiduciary to exercise authority over digital assets or digital accounts, or in the case of a fiduciary whose authority is granted in a trust instrument, a certification of trust.
(4) A custodian shall comply with a valid written request not later than thirty (30) days after receipt of the valid written request. If the custodian fails to comply, the fiduciary may apply to the court for an order directing compliance.
(5) For purposes of this section, a "certified copy" of a trust, power of attorney, certification of trust, or governing instrument means a copy accompanied by an affidavit attesting that the copy is a true, exact, complete and unaltered photocopy of the original, and that to the best of the affiant's knowledge, said document remains in full force and effect.
SECTION 6. (1) Except as otherwise provided in subsection (2) of this section:
(a) A custodian shall accept a valid written request that complies on its face with the requirements of this act;
(b) A custodian shall accept a valid written request that is originally written in English or is translated into English, under oath of the translator.
(2) A custodian is not required to accept a valid written request if:
(a) The custodian is not otherwise required to engage in a transaction with the account holder in the same circumstances;
(b) Engaging in a transaction with the fiduciary or the account holder in the same circumstances would be inconsistent with applicable state law, federal law, regulations or any end user license agreement; or
(c) The custodian has actual knowledge that the fiduciary does not have the authority to perform the act requested.
(3) If a custodian accepts a valid written request in good faith without actual knowledge that it is void, invalid, or terminated, that the purported fiduciary's authority is void, invalid, or terminated, or that the fiduciary is exceeding or improperly exercising the fiduciary's authority, the custodian may rely upon such valid written request as if it were genuine, valid and still in effect, the fiduciary's authority were genuine, valid and still in effect, and the fiduciary had not exceeded and had properly exercised the authority.
(4) For purposes of this section, a custodian that conducts activities through employees is without actual knowledge of a fact relating to a valid written request, an account holder, or a fiduciary, if the employee conducting the transaction involving the valid written request is without actual knowledge of the fact. Notification of revocation of a valid written request by an account holder or fiduciary to an officer of any custodian shall constitute actual notice to all employees.
(5) A custodian that refuses in violation of this section to accept a valid written request from a fiduciary that complies with Section 5 of this act is subject to:
(a) A court order compelling compliance with the valid written request; and
(b) Liability for damages, including reasonable attorney's fees and costs, incurred in any action or proceeding that confirms the validity or authority of a fiduciary to act, or compels acceptance of the fiduciary's valid written request under Section 5 of this act.
(6) A custodian acting in good faith is immune from liability for an action done in compliance with this act.
(7) A custodian acting in good faith is immune from civil liability for the custodian's accidental destruction of any digital asset or digital account subject to this act.
SECTION 7. Section 87-3-7, Mississippi Code of 1972, is amended as follows:
87-3-7. (1) A letter of attorney to transact any business need only express plainly the authority conferred.
(2) If any power of attorney or other writing (a) authorizes an attorney-in-fact or other agent to do, execute or perform any act that the principal might or could do, or (b) evidences the principal's intent to give the attorney-in-fact or agent full power to handle the principal's affairs or deal with the principal's property, the attorney-in-fact or agent shall have the power and authority to make gifts in any amount of any of the principal's property to any individuals or to any organizations described in Sections 170(c) and 2522(a) of the Internal Revenue Code or corresponding future provisions of federal tax law, or both, in accordance with the principal's personal history of making or joining in the making of lifetime gifts, including the authority to exercise all rights and powers granted to a fiduciary under the Fiduciary Access to Digital Assets and Digital Accounts Act under House Bill No. , 2015 Regular Session.
(3) Subsection (2) as set forth above is declaratory of past and present law in the State of Mississippi, and shall be applied to all powers of attorney, whether executed before, on or after March 16, 1999.
SECTION 8. Section 81-5-34, Mississippi Code of 1972, is amended as follows:
81-5-34. Any bank, including a national bank, may accept accounts in the name of any administrator, executor, guardian, trustee or other fiduciary in trust for a named beneficiary or beneficiaries. Any such fiduciary shall have the power to make payments upon and to withdraw any such account, in whole or in part, and exercise all rights and powers granted to a fiduciary under the Fiduciary Access to Digital Assets and Accounts Act, under House Bill No. , 2015 Regular Session. The withdrawal value of any such account or other rights relating thereto may be paid or delivered, in whole or in part, to such fiduciary, without regard to any notice to the contrary, as long as such fiduciary is living. The payment or delivery to any such fiduciary or a receipt of acquittance signed by any such fiduciary to whom any such payment or any such delivery of rights is made shall be valid and sufficient release and discharge of any bank for the payment or delivery so made. Whenever a person holding an account in a fiduciary capacity dies, and no written notice of the revocation or termination of the trust relationship has been given to a bank and the bank has no notice of any other disposition of the trust estate, the withdrawal value of such account or other rights relating thereto may, at the option of a bank, be paid or delivered, in whole or in part, to the beneficiary or beneficiaries of such trust. Whenever an account shall be opened by any person describing himself in opening such account as trustee for another, and there is no other or further notice of the existence and terms of a legal and valid trust, then such description shall be given in writing to such bank. In the event of the death of the person so described as trustee, the withdrawal value of such account or any part thereof may be paid to the person for whom the account was thus stated to have been opened, and such account and all additions thereto shall be the property of such person, unless prior to payment the trust agreement is presented to the bank showing a contrary interest. When made in accord with this section, the payment or delivery to any such beneficiary, beneficiaries or designated person, or a receipt or acquittance signed by any such beneficiary, beneficiaries or designated person for any such payment or delivery, shall be valid and sufficient release and discharge of a bank for the payment or delivery so made. Trust accounts permitted by this section shall not be required to be acknowledged and recorded. When an account is opened in a form described in this section, the right set forth in Section 81-5-62 shall apply. No bank paying any beneficiary in accordance with the provisions of this section shall thereby be liable for any estate, inheritance or succession taxes which may be due this state. The term "accounts" or "account" as used in this section shall include, but not be limited to, any form of deposit or account, such as a savings account, checking account, time deposit, demand deposit or certificate of deposit, whether negotiable, non-negotiable or otherwise.
SECTION 9. Section 91-8-303, Mississippi Code of 1972, is amended as follows:
91-8-303. To the extent there is no material conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) A conservator or guardian may represent and bind the estate that the conservator or guardian controls;
(2) A conservator or guardian may represent and bind the ward if a conservator or guardian of the ward's estate has not been appointed;
(3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
(4) A trustee may represent and bind the beneficiaries of the trust;
(5) A personal representative of a decedent's estate may represent and bind persons interested in the estate;
(6) A parent may represent and bind the person's minor or unborn child if a conservator or guardian for the descendant has not been appointed;
(7) A grandparent may represent the grandparent's grandchild if that grandchild is not already represented by a parent under paragraph (6); and
(8) A person designated by the settlor in the trust instrument or in a writing delivered to the trustee to represent the beneficiaries of the trust may represent and bind such beneficiaries.
(9) Any person acting in a fiduciary capacity shall exercise all rights and powers granted to a fiduciary under the Fiduciary Access to Digital Assets and Accounts Act, under House Bill No.____ , 2015 Regular Session.
SECTION 10. Section 87-3-109, Mississippi Code of 1972, is amended as follows:
87-3-109. (1) If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal's property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not disabled or incapacitated; and the fiduciary shall exercise all rights and powers granted to a fiduciary under the Fiduciary Access to Digital Assets and Accounts Act, under House Bill No. , 2015 Regular Session.
(2) A principal may nominate, by a durable power of attorney, the conservator, guardian of his estate, or guardian of his person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.
SECTION 11. This act shall take effect and be in force from and after July 1, 2015.