RUFADAA puts the obligation squarely on the estate planning community. Planners must address these issues with clients and determine whether the client wishes to permit access or not. For those that would want to permit access to their fiduciary, the documents must have express authority given to the fiduciary. Moreover, because the designation made in an estate planning document only controls if a client has not designated someone in an online tool, the designations made by a single individual ought to be consistent.
Even with such express authority, there are limits to the effectiveness of the access. Recently, Apple and the FBI clashed over access to the San Bernardino bomber’s iPhone. Apple, for its part, would not participate in cracking the password raising privacy concerns. Cellebrite, an Israeli forensic company, reportedly has helped the FBI open the iPhone. [A resolution that seemingly provides no upside to Apple.]
Estate planners, of course, seldom are engaged in national security threats. These same issues, however, will increasingly arise in estates. A recent case involving a father who lost his 13 year old son to bone cancer offers a poignant illustration. The father wanted access to his son’s iPhone photographs and other material. The son had, in fact, given his father access to his iPhone and permitted him to register his thumbprint on the phone’s touch ID software. Unfortunately, the thumbprint ID did not work after the phone had been restarted thereby preventing him from using it to log into his son’s phone. He did not know his son’s passcode. Once again, Apple said that it was unable to crack the password code. Again, Cellebrite has offered to try to break the code to give access to the photographs.
RUFADAA is a step in the right direction to permit us to help clients give their fiduciary access to their digital information and content. As the companies perfect encryption and uncrackable passwords, however, this authority may not be enough. Conventional wisdom is that you should provide someone else access to your passwords so they are able to get into your accounts or phone if necessary. Given the short shelf life of passwords, however, this may be an unworkable solution.
These issues are not easy to resolve. We use our computers and handheld devices to store sensitive financial information and other material, so it is critical that a successor to the user is designated and incorporated as part of estate planning. At a minimum the estate planning community must make sure that their documents adequately provide for fiduciary access or, if the client does not want that, to clearly so provide.