Maryland Enacts Digital Assets Act

On May 10, 2016, Governor Hogan signed the Maryland Fiduciary Access to Digital Assets Act (the “Act”), which will become effective on October 1 of this year.

The Act includes an addition to both of Maryland’s statutory form financial powers of attorney, giving the agent appointed under the power of attorney the right to access: (1) the content of any of the principal’s electronic communications; (2) any catalogue of electronic communications sent or received by the principal; and (3) any other digital asset in which the principal has a right or interest.

The Act also provides that a user may use an online tool (defined as an agreement, other than the terms-of-service agreement, between the custodian and the user) to provide directions to the custodian for disclosure or nondisclosure of the user’s digital assets to a third party.

The Act further provides that if the user does not use an online tool to give such directions, or if the custodian fails to provide an online tool, then the user may provide in his or her will, trust, or power of attorney, or any other record, that the user’s fiduciary is either allowed to have, under certain circumstances, or is prohibited from having, under certain circumstances, access to some or all of the user’s digital assets, including the content of emails and other electronic communications sent or received by the user.