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Growing Use of Online Services Poses Dilemma for Agent

Updated: Feb 4, 2022

Dear Mr. Premack: My aunt has been a woman ahead of her time. Although she is now in her 80’s, she has been working with computers for 20+ years. She was the first in our family to send emails, to embrace a digital camera, to sign up for Facebook. She does her banking and her brokerage online and has gone paperless whenever a service provider offered the option. Now she has had a stroke. She gave me durable power of attorney a few years ago. To do my job of paying her bills and keeping her finances together, I need to access her computer and her accounts but she did not give me her passwords. Can I use the power of attorney to call her bank, broker and even Google for her Gmail account password? – H.N.

The durable power of attorney that she signed a few years ago is very likely a Texas “statutory” durable power of attorney. The word statutory implies that it is based solely on the terms of a law passed by the legislature in 1993. A few minor adjustments have been made to the law in the 19 years that have passed, but there is nothing in the law, and therefor nothing in her statutory durable power of attorney, relating to passwords, to online banking, to email or to digital photos she may have stored online.

Failure to keep up with changes in real-world experiences and new technologies is one of the largest weaknesses of the 1993 law. Fortunately the law allows each person’s durable power of attorney to go beyond the basics that were included in the old statutory form. Wisdom dictates that people stop using the old statutory document, and instead work with an attorney versed in these issues who can expand the durable power of attorney to cover our ever-evolving real world experiences.

Here are some examples of items that should be included in a current durable power of attorney (but are not included in the old statutory document). The agent should be authorized to access the principal’s:

  1. Online bank and brokerage accounts

  2. Social networking sites (like Facebook. LinkedIn, Twitter or Google+)

  3. Email servers (like Gmail, Yahoo, Live, Hotmail, etc.)

  4. Commercial services for which the principal may be registered (such as Netflix, Amazon, Zappos and a thousand other online stores)

  5. Cloud servers where the principal stores data, digital images and other files (for example Dropbox, Google drive or SkyDrive)

  6. Smartphones, like an android phone or iPhone, which may store calendars, contact lists and personal files the agent needs to access

At the same time the principal grants that access (by signing the specialized durable power of attorney) the principal should create a master password list. It can be compiled in Word or Excel, both of which allow the maker to password protect the file. Or it can be created in software like Kaspersky Password Manager or KeePass. The agent must then be informed of the list’s location and how to access the list.

What can you do, seeing as you have the old statutory durable power of attorney and no master password list? First, ask your aunt for clues if she is well enough to communicate. Second, go to her bank personally with the durable power of attorney in hand to report that you are her agent. Her past records may be online, but you can still access them in the old-fashioned way with the bank’s help. For national sites like Gmail (so you can check her email and respond to important communications) contact the service provider. Each company has a specific privacy policy (usually posted on their website) that may allow or disallow access.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2012) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, July 9, 2012


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