New Nebraska Law for Accessing Digital Assets of Deceased

On April 13, Nebraska passed legislation for handling digital assets for those that die or become unable to manage their own assets. LB 829 authorizes four types of individuals to manage the digital assets, similar to how they would manage tangible property, for the deceased or incapacitated. This law follows the Revised Uniform Fiduciary Access to Digital Assets Act, as finalized by the Uniform Law Commission in 2015.

Prior to this law, managing the digital accounts of the deceased was difficult and time consuming, especially in situations where the fiduciary does not have the passwords for the deceased. This new law works in conjunction with Nebraska probate, guardianship, trust, and powers of attorney laws. For executors or administrators of deceased individual estates, court-appointed guardians or conservators, agents appointed by a power of attorney, or a trustee, they will now have a legal basis for accessing digital assets.

When a fiduciary is in a situation needing to access the deceased digital assets, the law creates a tiered system for access. Generally, if the digital asset has an online portal maintained by a third party that allows the user to grant access to another, those rules take priority. However, failure to use such an option or if no tool exists, the new statutory power granted to the fiduciary will apply.

© 2016 Vandenack Williams LLC
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Why to Have Your Powers of Attorney Drafted by a Qualified Attorney

Powers of attorney are very important. Legal powers of attorney identify who will act for you legally. Health care powers of attorney identify who will make health care decisions for you when you can’t make them for yourself. These are difficult and IMPORTANT life moments.

Because such powers of attorney matter most when you can’t act for yourself, it is important that your documents are legally accurate. Many well meaning agencies hand out forms and information about powers of attorney and forms abound on the internet. The sad fact is that forms are often incomplete, inaccurate and lack the counsel that comes when you consult with a qualified attorney who has prepared the documents for many clients and worked with many clients in times of incapacity.

Properly considered and drafted powers of attorney are not that expensive relative to the issues that arise when your agent does not have the powers needed or in some cases has too much power. Why would you spend significant sums on long term care and medical care but not be certain that your powers of attorney properly protect you when you can’t protect yourself?

This blog is being written as a reaction to one too many situations in the past six month where an elder client was left without the care they needed due to a form power of attorney or where an elder client was taken advantage of by an agent with too much power because “forms” were used instead of legal support.

© 2014 Parsonage Vandenack Williams LLC

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IRS Indicates Agent Under Power of Attorney Is Subject to FBAR Reporting Requirements

In its most recent version of its “FBAR Reference Guide”, the IRS indicates that an individual will be deemed to have “signature authority” over a foreign financial account if the individual is named as agent under a power of attorney which includes the power to exercise signature authority of a foreign account owned by the principal. The IRS indicates this is true regardless of whether the power has actually been exercised.

Following the updated guidance, it is imperative for agents under powers of attorney to inquire as to whether the principal has signature authority over a foreign financial account subject to FBAR reporting. Failure by the agent to report the agent’s signature authority over the principal’s account can result in imposition of the extreme civil and criminal penalties that may be imposed due to the failure to comply with the FBAR requirements.

 The FBAR reference guide is available at: http://www.irs.gov/pub/irs-utl/IRS_FBAR_Reference_Guide.pdf. The power of attorney example is found at page 5.

© 2014 Parsonage Vandenack Williams LLC

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Should I Have a Power of Attorney for Health Care?

A Video FAQ with Mary E. Vandenack.

In general, what a power of attorney for healthcare does is to create an agent that will be between you and the health care system at such a time that you become incapable of making your health care decisions. There are certain things you can specify in a document that don’t require an agent, but in most cases you will be well-served to have someone between you and the health care system if you are unable to make decisions for yourself.

In executing a durable power of attorney for healthcare and naming an agent, you should give careful consideration to what you would want to happen in an emergency, in the event that happens, and make sure you inform your agent of those desires.

© 2014 Parsonage Vandenack Williams LLC

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Who Should Be My Power of Attorney?

A Video FAQ with Mary E. Vandenack.

There are 2 different types of power of attorneys to consider when making that decision. The first type is a legal power of attorney. When you execute a legal power of attorney you are giving someone the ability to act for you on financial matters, to sign checks for you, or to enter into contracts for you. That power of attorney or agent needs to be somebody you have a lot of trust in in that regard.

The other type of power of attorney is a power of attorney for health care. That is a death-bed type of decision or one in which you are very ill or incapable of acting for yourself. You’re going to want to choose someone who is knowledgeable about what you want in those types of circumstances and that you feel will be an active advocate for you with the health care system.

© 2014 Parsonage Vandenack Williams LLC

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What Is the Difference Between General and Limited Power of Attorney?

A Video FAQ with Joshua A. Diveley.

The purpose of a power of attorney in general is to provide an agent authority to act on your behalf, so the difference between the general and the limited is that the general provides all the statutory authority allowed by law. For example, in Nebraska the general power of attorney will provide all kinds of authority for matters related to real estate, financial accounts and tangible personal property.

A limited power of attorney will be just that. It will be limited on what authority you do have to act as agent. For example, if you are out of town for a weekend and you are selling your house and you need to have somebody to represent you at closing, you can set up a limited power of attorney to just represent you on that one transaction rather than having general authority over all your bank accounts and that sort of thing.

© 2014 Parsonage Vandenack Williams LLC

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