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The Pivotal Law Blog

Washington State Enacts Law Governing Access to a Person’s “Digital Assets”

Posted Wednesday, June 29, 2016 by Michael A. Larson and Lisa Benedetti

screen lockedWhen a person dies or becomes incapacitated, they may have assets that need to be located, accessed, and managed. Traditionally, those assets could include things like houses, cars, bank accounts, other personal property, etc. The person formally named, selected, or appointed to manage these assets is known as a “fiduciary.”

With the increase of computer and internet use, people have acquired more and more “digital assets” – which has in turn raised more and more questions about how fiduciaries may gain access to these assets. Some people have experienced “horror stories” where a loved one passed away, and they wanted to access that person’s pictures, videos, etc., but the company controlling that information wouldn’t allow access, citing to their Terms of Service.

To address these questions, on March 31, 2016, Governor Jay Inslee signed into law Senate Bill 5029, also known as the Revised Uniform Fiduciary Access to Digital Assets Act. Washington is one of only ten states that have enacted such a law.

The Digital Assets Act gives fiduciaries the legal authority to manage digital assets the same way they manage tangible assets and financial accounts. It also gives custodians of those assets (think: Amazon, Google, Facebook, Instagram, etc.) legal authority to deal with fiduciaries of their users, while respecting the user’s reasonable expectation of privacy. The Act does not grant access to family members or friends, unless that person is also a fiduciary.

The Act allows a user to direct who may access their digital assets and which assets they may access. The user may make that direction using an online tool provided by the custodian, or by other written document such as a will, trust, or power of attorney. This direction overrides any terms-of-service agreements to the contrary.

The fiduciary must prove they have the right to access a user’s digital assets. They must do so by making a request for access in writing, and also providing various items depending on the circumstances. Generally, these items serve to prove the user had digital assets with the custodian (e.g. a username or unique identifier, and evidence linking that account to the user), the user authorized the fiduciary to access those assets (e.g. the will, trust, or power of attorney, unless the designation was made by an online tool provided by the custodian), and the circumstances allowing access have occurred (e.g. the death certificate, letters of appointment, letters of guardianship, or a certification the document granting authority is in effect).

Once the fiduciary provides the required items, the custodian must comply with the fiduciary’s request within sixty (60) days. If they do not, the fiduciary may apply to the court for an order directing the custodian to comply.

Although the Act requires custodians of digital assets to provide access to the fiduciary, they have the discretion to disclose those assets in a number of ways: (a) full access to the user’s account, (b) partial access sufficient to perform the fiduciary’s designated tasks, or (c) copies of the digital assets the user could have otherwise accessed. The custodian may also assess a reasonable administrative charge.

Furthermore, the custodian may refuse a request if it requires segregation of assets, and that segregation would impose an undue burden on the custodian. This would come into play if a user grants partial rather than full access, meaning the custodian must separate the assets that are allowed to be accessed from those that are not.

In managing the assets, the fiduciary is charged with the duties of care, loyalty, and confidentiality. They may not impersonate the user, and must otherwise abide by any applicable terms-of-service agreement.

In an age where so much of our lives are online, the Digital Assets Act helps give users control over who may access that information, and peace of mind that the custodians of that information must abide by their documented wishes.

The Digital Assets Act is effective on June 9, 2016.

Photo credit: Yuri Samoilov, used under the Creative Commons license

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New Federal Regulations for E-Cigarettes Cause Controversy

Posted Thursday, June 23, 2016 by Pivotal Law Group

The Food and Drug Administration has recently issued its first regulation on e-cigarettes. Previously subject to almost no oversight, the sale of e-cigarettes will soon be banned to anyone under the age of 18. Manufacturers of the product will now be required to disclose ingredients and submit their products for government approval.

E-cigarettes have become widely popular as a replacement for traditional cigarettes. The battery-powered devices come in a variety of different flavors and are especially favored by middle and high schoolers. According to the FDA, in 2015, 3 million middle-and high-school students reported using e-cigarettes.

While some argue that the FDA has not gone far enough in terms of regulation, experts warn that requiring FDA approval may hurt those consumers who use the product in their efforts to quit smoking.

Industry officials reacted angrily to many of the rules, warning that requiring pre-market approval could decimate the many small businesses that produce e-cigarettes and could ultimately deprive consumers of what they say is a less harmful alternative to conventional cigarettes.

Public health experts largely welcomed the rules, saying they were long overdue. Some said the FDA should have gone much further, banning the use of e-cigarette flavors and placing curbs on advertising.

“FDA passed up critical opportunities in this rule by failing to prohibit the sale of tobacco products coming in flavors like cotton candy,” said Benard Dreyer, president of the American Academy of Pediatrics.

But despite the landmark nature of the effort, the FDA action is unlikely to settle an intensifying debate over whether e-cigarettes are a gateway to traditional tar-laden, chemical-filled cigarettes or an effective way to help the long-addicted quit smoking.

Click here for a link to the full article, or see the link below:

https://www.washingtonpost.com/national/health-science/the-federal-government-is-about-to-begin-regulating-the-booming-e-cigarette-market/2016/05/05/d22ddec0-130b-11e6-93ae-50921721165d_story.html

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Call Before You Dig– Excavator Liability For Damaging Underground Utilities in WA

Posted Wednesday, June 15, 2016 by Christopher L. Thayer

Digging

Washington has a comprehensive statutory scheme relating to homeowner and contractor responsibilities regarding excavation and underground utilities. The Underground Utility Prevention Act (the “UUPA”), which was significantly amended and updated in 2013, is intended to protect public health and safety and prevent disruption of vital utility services through a comprehensive damage prevention program. Statewide, homeowners and contractors can call “811” to schedule a “utility locate” prior to commencing any excavation. What many contractors and homeowners are likely unaware of, however, are the consequences for violating UUPA, including possible treble damages and claims for attorneys’ fees.

The “call before you dig” law requires you to call in for a “utility locate” any time you are digging a hole greater than 12 inches deep. If you fail to request a “utility locate” and hit a gas or hazardous liquid line (e.g., sewer line), an excavator is liable for a civil penalty of up to $10,000 - per violation:

19.122.055 Failure to notify one-number locator service—Civil penalty, if damages.

(1)(a) Any excavator who fails to notify a one-number locator service and causes damage to a hazardous liquid or gas underground facility is subject to a civil penalty of not more than ten thousand dollars for each violation.

If you “willfully or maliciously” damage an underground utility, you can be liable for treble damages and attorneys’ fees:

19.122.070 Civil penalties—Treble damages—Existing remedies not affected.

(1) Any person who violates any provision of this chapter not amounting to a violation of RCW 19.122.055 is subject to a civil penalty of not more than one thousand dollars for an initial violation, and not more than five thousand dollars for each subsequent violation within a three-year period. All penalties recovered in such actions must be deposited in the damage prevention account created in RCW 19.122.160.

(2) Any excavator who willfully or maliciously damages a marked underground facility is liable for treble the costs incurred in repairing or relocating the facility. In those cases in which an excavator fails to notify known facility operators or a one-number locator service, any damage to the underground facility is deemed willful and malicious and is subject to treble damages for costs incurred in repairing or relocating the facility.

There are a few additional “traps” in UUPA as well. First, a utility locate request (or “ticket” as often referred to in the trades) are only good for 45 days. Thus, if you obtain a utility locate but dig and hit an underground utility outside of that 45 day window – you can be potentially held liable under RCW 19.122.070. Second, utility locate companies are only required to locate underground utilities with “reasonable accuracy”, which means:

(23) “Reasonable accuracy” means location within twenty-four inches of the outside dimensions of both sides of an underground facility.

A 24-inch tolerance leaves a lot of room for potential problems. When digging near identified underground utilities, excavators are cautioned to hand shovel the area of excavation until the underground utility has been visually located. For more information in Washington, you can go to: www.washington811.com. All these provisions are reminders to take extra care when conducting any excavation on your property. Utility locate services are free and the potential cost of damaging a utility line makes it clear that taking the time to have the utilities located before you dig is essential.

Photo credit: Christine, used under the Creative Commons license

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With Recent Advances in Technology, Should Harm to Prosthetic Limbs Be Considered Property Damage or Personal Injury?

Posted Wednesday, June 8, 2016 by Pivotal Law Group

ProstheticProsthetic limbs have become increasingly advanced. For example, the most recent devices being created at Johns Hopkins’ Applied Physics Laboratory have been developed with neurotechnology and may enable users to mentally control their prosthetic limbs as well as receive sensory feedback from them.

Many amputees also report having strong psychological connections with their prosthetic limbs. These individuals feel as if their prosthetic limbs have become a part of them.

Despite the technological advancements, the law has yet to catch up to these changing boundaries of personhood and property. With an absence of case law related to this specific issue, damage to prosthetic devices may simply be considered property damage rather than personal injury.

According to the law, you and your cell phone are two separate entities. No matter how reliant you might feel on the small, glowing rectangle in your pocket, the distinction is clear: you are a person and your phone is your property. In the same way, the law also sees a separation between a person who is using a prosthetic (such as a bionic limb) and the device itself.

But as new types of prosthetics become available, and the integrations between man and machine become more intimate, the traditional distinctions the law makes are being questioned. This occurred most recently at the University of Oxford’s Human Enhancement and the Law: Regulating for the Future Conference, which explored the legal issues that might arise as a result of developments in human enhancement technologies.

Click here for a link to the full article, or see the link below:

http://motherboard.vice.com/read/is-harm-to-a-prosthetic-limb-property-damage-or-personal-injury

Photo credit: The U.S. Army, used under the Creative Commons license.

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Will Contests: How to Prove a Will Was the Product of Undue Influence

Posted Wednesday, June 1, 2016 by Michael A. Larson and Lisa Benedetti

WillIn general, people have a fundamental right to distribute their property however they choose in the event of their death. So, when a person executes a will in the manner required by law, that will is presumed valid and will be honored. But what if a person is concerned the will was the product of “undue influence”? What must that person show to prove it?

In the seminal case of Dean v. Jordan, 194 Wash. 661, 79 P.2d 331 (1938), the court identified certain suspicious facts and circumstances that could prove undue influence and convince a court to invalidate a will. The three most important factors are:

(1) The beneficiary (the person accused of exerting undue influence) occupied a fiduciary or confidential relation to the testator (the person whose will is being challenged). This means the beneficiary held a legal or ethical relationship of trust with the testator, at a level that would lead the testator to believe the beneficiary is acting in their best interests. For instance, the beneficiary could have power-of-attorney to make legal, financial, health care, or other decisions on behalf of the testator.

(2) The beneficiary actively participated in the preparation or procurement of the will. The participation must be more than simply driving the testator to meet with their attorney to change the will.

(3) The beneficiary received an unusually or unnaturally large part of the estate. Unusualness or unnaturalness can be measured by comparing the will to prior wills or other testamentary instructions (instructions meant to distribute property upon death).

Other factors to consider are: the age, health condition, and mental vigor of the testator, the nature or degree of relationship between the testator and beneficiary, the opportunity to exert undue influence, and the naturalness or unnaturalness of the will. A will is unnatural when it is contrary to what the testator would have been expected to do based on their known views, feelings, and intentions.

The burden of proving undue influence is high – it must be proved by “clear, cogent, and convincing” evidence, which is higher than the “preponderance of the evidence,” or greater than 50% likelihood, standard required for most civil cases. However, even though the standard is high, it does not require “direct” evidence, and may be shown through compelling circumstantial evidence.

In a recent case, In re Estate of Barnes, No. 91488-5 (January 28, 2016), the Washington Supreme Court analyzed a trial court’s finding that a beneficiary (Wells) exerted undue influence on the testator (Barnes) and upheld the trial court’s decision, based on the following findings of fact:

Factor 1: Wells was Barnes’ attorney-in-fact when the will was signed and exercised that power of attorney to sign checks on behalf of Barnes.

Factor 2: Wells not only drove Barnes to meet with her attorney, she did so on the heels of what the court called “Wells’ systematic manipulation of Barnes,” having alienated Barnes from her family and poisoned their relationship through repeated untrue statements to Barnes about her family.

Factor 3: In multiple prior versions of Barnes’ wills, her only living relatives had been included and had received an increasing interest over time, while Wells had never been named. By contrast, in the new will, Barnes’ living relatives received nothing, while Wells received everything.

Other considerations: Barnes was elderly (nearly 95 when the will was executed) and vulnerable to undue influence due to physical limitations (having suffered two falls) and some cognitive impairment (probable early Alzheimer’s dementia). She was dependent on Wells as her sole caretaker, giving Wells ample opportunity to exert undue influence. Wells also struggled financially. After Wells became more involved in Barnes’ life, Barnes began writing checks to Wells and her family. And as her attorney-in-fact, Wells paid her own mortgage with a check from Barnes’ personal bank account within days of Barnes’ death.

The trial court cited as a “critical factor” in its decision the unnaturalness of Barnes giving her entire estate to Wells. Wells was not a relative, and had only come into Barnes’ life in the past few years. By contrast, she had living relatives who had grown up near Barnes, spent a significant amount of time on Barnes’ property, and shared important family events with her until the last few years – coinciding with Wells’ exertion of influence on Barnes’ life.

The Supreme Court noted that although these facts could have supported an alternative theory for upholding the will – that Barnes grew apart from her relatives and closer to Wells for valid reasons unaffected by undue influence – it was not the job of the appellate court to re-weigh the evidence as long as the trial court had sufficient evidence for its decision. The Supreme Court found there was sufficient evidence for the trial court to find Wells exerted undue influence on Barnes.

Although each case has a unique set of facts, the Barnes case helps guide how to apply the Dean factors and determine whether there was evidence of undue influence upon the making of a will.

Photo credit: Last Will and Testament, used under the Creative Commons license.

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