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26/11/2014

Managing passwords, online accounts and social media after death

29/04/2014

NCAT Guardianship Division

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Managing passwords, online accounts and social media after death

With digital property comprising a growing share of many individuals’ personal assets, it is important to remember that your ‘e-life’ will continue after death. Frequently forgotten digital assets can comprise anything from loyalty program benefits, to characters in online games and domain names.  Others are more sentimental, such as an account on a social networking site.

Unfortunately, governmental policy for online assets is yet to be developed, and so the families of the deceased must rely on the individual company’s policy in order to gain access to the deceased’s materials. Obvious security and privacy concerns have led some companies to adopt a conservative stance on providing information after death. A notable example is Yahoo!, which treats all accounts as confidential; meaning the only means of access is through the correct password. Google, which manages Gmail, Google Drive and Google Documents, requires proof of death to be delivered to its headquarters in the USA before it will allow access to its material. New customs are developing in the social media sphere, such as personal Facebook pages being reconfigured to act as memorials for the deceased. These spaces seem to provide a positive focus for the bereaved, in that they are able to address the longing to communicate with their lost loved ones. For some people battling illness, the idea of their social media presence being continued in this manner is a comfort. For others, it may feel inappropriate. In order to honour a loved one’s wishes, it is important to gain instructions on how they wish their online presence to be managed after death.

There are a number of ways to allow for secure post-death access to online information, and they do not necessarily involve including these details in your Will. One way is to leave a list of all right of use information, such as log-ins and passwords, locked in a safe location or with your executor, although this can mean regularly updating your list if you change your passwords periodic ally. Another step you can take is to leave specific instructions about your online property, for example, by including a provision in your Will giving certain copies of photos.

The most practical solution may be to compile a running list of your digital assets and passwords in a secure location, and leave a note with your Will (stored securely) about the list. It is possible to use an online password management service to store your passwords, and to also provide your executor with the master code (or again, leave a note of that code stored securely with your Will). This is simpler than including all passcodes in a Will, and having to execute a codicil each time an update is required.

For those who are keen to ensure that their online property is dealt with according to their wishes, management of their digital assets is now an increasingly relevant part of estate planning. Teece Hodgson & Ward can help you in considering arrangements to make as part of your estate planning to ensure that your digital property is identified and can be dealt with by your executor/s.

For assistance in this area, please contact:

Deborah Linwood

Asheetha Jelliffe

Craig Birtles

NCAT Guardianship Division

The NSW Civil and Administrative Tribunal (NCAT) commenced operation on 1 January, 2014. It has merged 22 previously separate NSW tribunals into one entity that now provides all specialist tribunal services. This integration aims to retain the expertise formerly spread across the tribunals, while increasing ease of access and restructuring back office administration. NCAT was established in response to the recommendations of a parliamentary inquiry conducted in 2011-2012, which found the previous system to be ‘complex and bewildering’. NCAT is made up of four divisions, each headed by a Deputy President with expert knowledge in their area. The four divisions are as follows:

  • Consumer and Commercial Division

  • Administrative and Equal Opportunity Division

  • Occupational Division

  • Guardianship Division

The Guardianship Division within NCAT now exists in place of the Guardianship Tribunal of NSW, which was established in 1989. Its functions are essentially the same as its predecessor, with the Division conducting hearings to manage applications concerning adults with an impaired decision-making ability. The resulting determinations may require the appointment of a substitute decision maker, and can permit medical treatments to be performed on individuals over 16 years of age. The Division also reviews existing arrangements concerning enduring guardianship and enduring powers of attorney. NCAT was established by the Civil and Administrative Tribunal Act 2013, with Schedule 6 outlining functions specific to the Guardianship Division. Prior legislation which is now administered by NCAT that is relevant to the Guardianship Division includes:

  • Children and Young Persons (Care and Protection) Act 1998

  • Guardianship Act 1987

  • NSW Trustee and Guardian Act 2009

  • Powers of Attorney Act 2003

Teece Hodgson & Ward is well experienced in guardianship and capacity cases. For assistance in navigating this area, please contact:

Richard Neal

 

Deborah Linwood

 

Janette Kveytel

Government to amend and review PPSA

The Personal Property Securities Act (PPSA) has been in operation for several years now. While it has worked well to date, there are areas where improvements can be made. The Federal Government has recently announced a review of the operation of the PPSA, particularly with regard to simplifying the system, as well as the way it affects small businesses and consumers. An interim report is due on 31 July 2014, with a final report due next January.

In the meantime, amendments have already been foreshadowed, including the removal of the 30 day PPS Lease trigger which currently obliges businesses to register security interests over serial-numbered assets such as cars and construction vehicles which are leased for 30 days or more. The changes will mean that only PPS Leases for one year or more, or for an indefinite term, will need to be registered. In addition, the definition of ‘motor vehicle’ will be narrowed so that low-powered vehicles with a 10km/hour maximum speed will no longer need to be registered.

Hutley’s Australian Wills Precedents

Richard Neal and Craig Birtles of Teece Hodgson & Ward have extensively revised and updated the leading text on will drafting in Australia, LexisNexis Butterworths’ 8th edition of Hutley’s Australian Wills Precedents. The book contains a comprehensive guide to the law of will drafting in Australia, together with authoritative precedents and commentary.

Teece Hodgson & Ward is a leading Australian specialist in Wills and Estates. Please see our website for further information.