Hawaii Fiduciary Access to Digital Assets Act
Effective Immediately Hawaii has enacted Senate Bill 2298, the ‘Uniform Fiduciary Access to Digital Assets Act’. The Act allows a fiduciary acting under a will or power of attorney, a personal representative of a decedent, a conservator, or a Trustee of a trust to compel disclosure of a digital asset from a custodian who stores the digital assets of a user. The Act only applies to a custodian if the user resides in the State of Hawaii or resided in the State of Hawaii at the time of the user’s death. The Act does not apply to the digital assets of an employer used by an employee in the ordinary course of business.
- Grant a fiduciary or designated recipient full access to the user’s account;
- Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
- Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
Disclosure of Content of Electronic Communication
Where a deceased user has consented to disclosure, or a court directs disclosure, then upon the personal representative providing the custodian with a written request for disclosure, a certified copy of the death certificate, a certified copy of the letter of appointment, and unless the user provided direction using an online tool, a copy of the instrument evidencing the users consent to disclose the Custodian has 60 days from receipt of the information to comply with the request to disclose digital assets or terminate an account. Failure to comply will allow the fiduciary or designated recipient to apply for a court order directing compliance.
Likewise, a party acting under a power of attorney, a trustee of a trust, or a conservator may similarly obtain the digital assets of a user by providing the custodian with proper documentation as outlined in the act that shows the consent of the user and the authority of the party requesting the information.
The Act does not prevent a custodian from obtaining, or requiring a fiduciary or designated recipient to obtain, a court order that specifies that an account belongs to the user and specifies that there is sufficient consent by the user to the disclosure. In addition, the Act provides immunity from liability to the custodian, its officers, employees and agents for any good faith act or omission done in compliance with the Act.
The full text of the Act may be found at: https://legiscan.com/HI/text/SB2298/2016
Adam Faria, JD, is a regulatory compliance consultant with CLA. He is a graduate of Northeastern University and earned his juris doctor at Suffolk University Law School. He is admitted to the bar in Massachusetts and New Hampshire.
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