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Garraway’s digital legacy challenges are a lesson to us all

Published: 30th April 2021
Area: For the individual

Many have recently empathised with TV’s Kate Garraway as she publicly recounted the struggles of her husband Derek Draper in his battle against COVID-19. As if his health challenges weren’t enough, she has spoken out about the additional difficulty of getting access to joint funds whilst he was in the hospital.

With most of our valued information, records and assets online, keeping them in the hands of those we trust has never been more important. With the average person holding 70-80 passwords, this raises an important question for us all - how do we manage our digital legacy, especially in the event of ill health?

Safeguarding our digital legacy

In the midst of a global pandemic, it’s important to be prepared should you suddenly be struck down with ill health. Safeguarding our digital legacy can be done in four simple steps:

 

  • taking inventory of your digital assets and devices;
  • securing your passwords;
  • making decisions about your digital assets.
  • providing instructions for handling your digital assets

Our digital assets become the legacy we own, and protecting them is a vital task. Should the worst happen, it’s important that loved ones have access to be able to complete transactions or stop payments on your behalf. More crucially, it can help mitigate some of the stress that a loved one may feel if struggling emotionally with your ill health. Protecting your digital legacy can mean also protecting your loved ones from significant administrative challenges.

Take stock of your digital assets

We all have a huge amount of digital assets that are expanding on a yearly basis. This could be our Netflix or Amazon accounts, bank accounts, social media profiles, and cryptocurrency accounts such as Bitcoin. Our entire lives are going virtual - so it’s becoming increasingly important that we safeguard our digital legacy.

This starts with taking stock of our digital inventory - making a note of exactly what we have online.

So how can we do that? It starts with conducting a review of our digital assets. We should examine not only the sentimental value but also the potential monetary value that our digital assets now hold. For example, Crypto and PayPal accounts are likely to hold real monetary value and similarly, intellectual property held electronically within books, videos and poetry could provide beneficiaries with significant financial gains.

On the other hand, family photos held within a Dropbox account or social media pages are much more likely to hold sentimental significance.

Since the pandemic, more of our banking assets have shifted further online. ATMs are reducing in number, and many physical branches have closed. Reduced access to physical banks means that they need to protect our digital assets is even more pertinent in a world where we conduct a lot of our transactions virtually. In the case of Kate Garraway, having joint accounts meant that one party could not access funds without authorisation of the partner. Had a schedule been kept of what passwords were held and for what, it could have protected her from what was inevitably a very stressful situation.

What happens if a loved one passes away without safeguarding digital assets? At present there are a number of legal ‘grey areas’ surrounding digital asset legacy planning and only recently has this become more common to include in a will. There is a real need for clearer guidance and an update in the law surrounding digital assets will be required in the near future. However, until that time, those writing and distributing a will should take caution.

Provide instructions for handling your digital assets

However, no matter whether it is sentimental or financial gains that digital assets could provide, ensuring that clear instruction is provided can help to ensure that they are catered for accordingly. It is wise to securely store a digital assets log that provides the access details of all accounts, or use a third-party password genie like Lastpass, along with a clear indication of what action is to be taken with each asset. However, individuals should exercise caution in doing so to ensure that they are not breaching the terms and conditions of the service provider.

If in the event of a bereavement, executors have a duty to maximise and administer an individual’s estate, but accessing online accounts without formal written permission in the will could mean that they are in breach of the Computer Misuse Act 1990.

Being an executor isn’t just about realising the assets of a will, executors often have a moral duty to fulfil the wishes of the deceased to the best of their ability and knowledge. If an executor doesn’t have the correct skillset to manage digital assets, it can cause huge amounts of stress and in turn, if proper instruction isn’t given to the executor, digital assets can be lost completely. Therefore, it is important to nominate a ‘tech savvy’ executor to manage the distribution of the digital asset element of a will  - failing to fulfil the task competently could open executors up to personal liability claims from beneficiaries. It is also not uncommon to have more than one executor, who could be chosen for specific tasks based on their proficiency.

Unfortunately, before more formal guidance is available, we are likely to see an increase in problems caused by unclear or incomplete instructions regarding the legacy of digital assets.

Garraway’s struggles are a lesson to us all, and her challenges can help us all to realise that taking a safeguarding approach to digital assets is a necessary activity for every individual, young or old. Following the four steps means that we can take active measures to protect our digital legacy, for now, and the future. This process isn’t a one-time event - it’s now an ongoing endeavour that we all must undertake.

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