Idaho recently passed Senate Bill No. 1044 that takes effect July 1, 2011, to give the conservator of an incapacitated person or the executor (personal representative) of a deceased person’s estate powers over some types of online accounts:
§ 15–3–715. TRANSACTIONS AUTHORIZED FOR PERSONAL REPRESENTATIVES—EXCEPTIONS. Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the priorities stated in section 15–3–902 of this code, a personal representative, acting reasonably for the benefit of the interested persons, may properly:…
(28) Take control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any e–mail service website.
§ 15–5–424. POWERS OF CONSERVATOR IN ADMINISTRATION.…
(3) A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation to:…
(z) Take control of, conduct, continue or terminate any accounts of the protected person on any social networking website, any microblogging or short message service website or any e–mail service website.
If you compare this with the recently enacted Oklahoma Statutes § 58–269 that took effect November 1, 2010, and that I wrote about recently, you will see that the wording is essentially the same. However, the Oklahoma law only applies after a person dies—the Idaho bill will apply while a person is alive but under an incapacity, as well as after a person dies.
As I mentioned regarding the Oklahoma law, this new Idaho bill may be useful to show the company holding the online account that the conservator or executor has authority to act on behalf of the person. However, like the Oklahoma law, the new Idaho bill doesn’t change the Terms of Service contract between the person and the company holding the online account—so it doesn’t give the person (or the person’s estate) new property rights or contract rights that didn’t exist before the person became incapacitated or died. As I’ve mentioned before, many online accounts in their Terms of Service provide that the online account terminates when a person dies.
Another problem for the state laws that attempt to resolve issues of incapacity or death for a person’s online accounts is that the online service provider could be located in another state or another country, so there are potential conflict of laws issues that must be resolved.
Special thanks to Robert L. Aldridge, an estate planning attorney in Boise, Idaho, for bringing this bill to my attention.