Chapter 50

15 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 1 CHAPTER 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT SOURCE: Entire chapter added by P.L. 34-018:2 (June 8, 20 17). § 5001. Short Title. § 5002. Definitions. § 5003. Applicability. § 5004. User Direction for Disclosure of Digital As sets. § 5005. Terms-of-Service Agreement. § 5006. Procedure for Disclosing Digital Assets. § 5007. Disclosure of Content of Electronic Communi cations of Deceased User. § 5008. Disclosure of Other Digital Assets of Decea sed User. § 5009. Disclosure of Content of Electronic Communi cations of Principal. § 5010. Disclosure of Other Digital Assets of Princ ipal. § 5011. Disclosure of Digital Assets Held in Trust when Trustee is Original User. § 5012. Disclosure of Contents of Electronic Commun ications Held in Trust When Trustee Not Original User. § 5013. Disclosure of Other Digital Assets Held in Trust When Trustee Not Original User. § 5014. Disclosure of Digital Assets to Guardian of Ward. § 5015. Fiduciary Duty and Authority. § 5016. Custodian Compliance and Immunity. § 5017. Uniformity of Application and Construction. § 5018.

§ 5014. Disclosure of Digital Assets to Guardian of Ward. § 5015. Fiduciary Duty and Authority. § 5016. Custodian Compliance and Immunity. § 5017. Uniformity of Application and Construction. § 5018. Relation to Electronic Signatures in Global and National Commerce Act. § 5019. Severability. § 5001. Short Title. This Act shall be known and may be cited as the 'Revised Uniform Fiduciary Access to Digital Assets Act.' § 5002. Definitions. In this Act: COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 2 (a) Account means an arrangement under a terms-of-s ervice agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. (b) Agent means an attorney-in-fact granted authori ty under a durable or nondurable power of attorney. (c) Carries means engages in the transmission of an electronic communication. (d) Catalogue of electronic communications means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.

c communications means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person. (e) Content of an electronic communication means information concerning the substance or meaning of the communication which: (1) has been sent or received by a user; (2) is in electronic storage by a custodian providi ng an electronic communication service to the public or i s carried or maintained by a custodian providing a remote comput ing service to the public; and (3) is not readily accessible to the public. (f) Court means the Superior Court of Guam or any o ther Guam court of competent jurisdiction. (g) Custodian means a person that carries, maintain s, processes, receives, or stores a digital asset of a user. (h) Designated recipient means a person chosen by a user using an online tool to administer digital assets o f the user. (i) Digital asset means an electronic record in whi ch an individual has a right or interest. The term does n ot include an underlying asset or liability unless the asset or l iability is itself an electronic record.

means an electronic record in whi ch an individual has a right or interest. The term does n ot include an underlying asset or liability unless the asset or l iability is itself an electronic record. (j) Electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnet ic, or similar capabilities. COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 3 (k) Electronic communication has the meaning set fo rth in 18 U.S.C. § 2510(12), as amended. (1) Electronic communication service means a custod ian that provides to a user the ability to send or receive a n electronic communication. (m) Fiduciary means an original, additional, or suc cessor personal representative, guardian, agent, or truste e. (n) Guardian means a person appointed by a court to manage the estate of a living individual. The term include s a limited guardian. (o) Information means data, text, images, videos, s ounds, codes, computer programs, software, databases, or t he like. (p) Online tool means an electronic service provide d by a custodian that allows the user, in an agreement dis tinct from the terms-of-service agreement

r programs, software, databases, or t he like. (p) Online tool means an electronic service provide d by a custodian that allows the user, in an agreement dis tinct from the terms-of-service agreement between the custodian an d user, to provide directions for disclosure or nondisclosure of digital assets to a third person. (q) Person means an individual, estate, business or nonprofit entity, public corporation, government or governmen tal subdivision, agency, or instrumentality, or other legal entity. (r) Personal representative means an executor, admi nistrator, special administrator, or person that performs subs tantially the same function under the laws of Guam other than this Act . (s) Power of attorney means a record that grants an agent authority to act in the place of a principal. (t) Principal means an individual who grants author ity to an agent in a power of attorney. (u) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (v) Remote computing service means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an

ther medium and is retrievable in perceivable form. (v) Remote computing service means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communicat ions system, as defined in 18 U.S.C. § 2510(14), as amended. COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 4 (w) Terms of service agreement means an agreement t hat controls the relationship between a user and a cust odian. (x) Trustee means a fiduciary with legal title to p roperty under an agreement or declaration that creates a be neficial interest in another. The term includes a successor trustee. (y) User means a person that has an account with a custodian. (z) Ward means an individual for whom a guardian ha s been appointed. The term includes an individual for whom an application for the appointment of a guardian is pending. (aa) Will includes a codicil, testamentary instrume nt that only appoints an executor, and instrument that revokes o r revises a testamentary instrument. § 5003. Applicability. (a) This Act applies to: (1) a fiduciary acting under a will or power of att orney executed before, on, or

r, and instrument that revokes o r revises a testamentary instrument. § 5003. Applicability. (a) This Act applies to: (1) a fiduciary acting under a will or power of att orney executed before, on, or after the effective date of this Act; (2) a personal representative acting for a decedent who died before, on, or after the effective date of this Act ; (3) a guardianship proceeding commenced before, on, or after the effective date of this Act; and (4) a trustee acting under a trust created before, on, or after the effective date of this Act. (b) This Act applies to a custodian if the user res ides in Guam or resided in Guam at the time of the user’s death. (c) This Act does not apply to a digital asset of a n employer used by an employee in the ordinary course of the employ er’s business. § 5004. User Direction for Disclosure of Digital As sets. (a) A user may use an online tool to direct the cus todian to disclose to a designated recipient or not to disclo se some or all of the user’s digital assets, including the content of ele ctronic communications. If the online tool allows the user to modify or del ete a direction at all times, a direction regarding disclosure using an on line

igital assets, including the content of ele ctronic communications. If the online tool allows the user to modify or del ete a direction at all times, a direction regarding disclosure using an on line tool overrides a COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 5 contrary direction by the user in a will, trust, po wer of attorney, or other record. (b) If a user has not used an online tool to give d irection under Subsection (a), or if the custodian has not provide d an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user. (c) A user’s direction under Subsection (a) or (b) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from t he user’s assent to the terms of service. § 5005. Terms-of-Service Agreement. (a) This Act does not change or impair a right of a custodian or a user under a terms-of-service agreement to access a nd use digital assets of the user.

service. § 5005. Terms-of-Service Agreement. (a) This Act does not change or impair a right of a custodian or a user under a terms-of-service agreement to access a nd use digital assets of the user. (b) This Act does not give a fiduciary or designate d recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recip ient acts or represents. (c) A fiduciary’s or designated recipient’s access to digital assets may be modified or eliminated by a user, by federal law, or by a terms- of-service agreement if the user has not provided d irection under § 5004. § 5006. Procedure for Disclosing Digital Assets. (a) When disclosing digital assets of a user under this Act, the custodian may at its sole discretion: (1) grant a fiduciary or designated recipient full access to the user’s account; (2) grant a fiduciary or designated recipient parti al access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or (3) provide a fiduciary or designated recipient a c opy in a record of any digital asset that, on the date the c ustodian received the request for

the fiduciary or designated recipient is charged; or (3) provide a fiduciary or designated recipient a c opy in a record of any digital asset that, on the date the c ustodian received the request for disclosure, the user could have acc essed if the user were alive and had full capacity and access to the account. COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 6 (b) A custodian may assess a reasonable administrat ive charge for the cost of disclosing digital assets under this Ac t. (c) A custodian need not disclose under this Act a digital asset deleted by a user. (d) If a user directs or a fiduciary requests a cus todian to disclose under this Act some, but not all, of the user’s dig ital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian be lieves the direction or request imposes an undue burden, the custodian or f iduciary may seek an order from the court to disclose: (1) a subset limited by date of the user’s digital assets; (2) all of the user’s digital assets to the fiducia ry or designated recipient; (3) none of the user’s digital

r from the court to disclose: (1) a subset limited by date of the user’s digital assets; (2) all of the user’s digital assets to the fiducia ry or designated recipient; (3) none of the user’s digital assets; or (4) all of the user’s digital assets to the court f or review in camera. § 5007. Disclosure of Content of Electronic Communi cations of Deceased User. If a deceased user consented or a court directs dis closure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the esta te of the user the content of an electronic communication sent or received by the user if the representative gives the custodian: (a) a written request for disclosure in physical or electronic form; (b) a certified copy of the death certificate of th e user; (c) a certified copy of the letter of appointment o f the representative or a small estate affidavit or court order; (d) unless the user provided direction using an onl ine tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications; and (e) if requested by the custodian: COL922201715

the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications; and (e) if requested by the custodian: COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 7 (1) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the user’s account; (2) evidence linking the account to the user; or (3) a finding by the court that: (A) the user had a specific account with the custodian, identifiable by the information specifie d in Subparagraph (1); (B) disclosure of the content of electronic communications of the user would not violate 18 U.S .C. § 2701 et seq., as amended, 47 U.S.C. § 222, as amend ed, or other applicable law; (C) unless the user provided direction using an online tool, the user consented to disclosure of th e content of electronic communications; or (D) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate. § 5008. Disclosure of Other Digital Assets of Decea sed User.

ions; or (D) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate. § 5008. Disclosure of Other Digital Assets of Decea sed User. Unless the user prohibited disclosure of digital as sets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a c atalogue of electronic communications sent or received by the user and dig ital assets, other than the content of electronic communications, of the us er, if the representative gives the custodian: (a) a written request for disclosure in physical or electronic form; (b) a certified copy of the death certificate of th e user; (c) a certified copy of the letter of appointment o f the representative or a small estate affidavit or court order; and (d) if requested by the custodian: COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 8 (1) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the user’s account; (2) evidence linking the account to the user; (3) an affidavit stating that disclosure of

, or other unique subscriber or account identifier assigned by the cu stodian to identify the user’s account; (2) evidence linking the account to the user; (3) an affidavit stating that disclosure of the use r’s digital assets is reasonably necessary for administration o f the estate; or (4) a finding by the court that: (A) the user had a specific account with the custodian, identifiable by the information specifie d in Subparagraph (1); or (B) disclosure of the user’s digital assets is reasonably necessary for administration of the esta te. § 5009. Disclosure of Content of Electronic Communi cations of Principal. To the extent a power of attorney expressly grants an agent authority over the content of electronic communicat ions sent or received by the principal and unless directed otherwise by t he principal or the court, a custodian shall disclose to the agent the content if the agent giv es the custodian: (a) a written request for disclosure in physical or electronic form; (b) an original or copy of the power of attorney ex pressly granting the agent authority over the content of el ectronic communications of the principal; (c) a certification by the agent, under penalty of

n original or copy of the power of attorney ex pressly granting the agent authority over the content of el ectronic communications of the principal; (c) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and (d) if requested by the custodian: (1) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the principal’s account; or (2) evidence linking the account to the principal. § 5010. Disclosure of Other Digital Assets of Princ ipal. COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 9 Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or gene ral authority to act on behalf of a principal a catalogue of electronic com munications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian: (a) a written request for disclosure in physical or electronic form; (b) an original or a copy of the power of

content of electronic communications, of the principal if the agent gives the custodian: (a) a written request for disclosure in physical or electronic form; (b) an original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal; (c) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and (d) if requested by the custodian: (1) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the principal’s account; or (2) evidence linking the account to the principal. § 5011. Disclosure of Digital Assets Held in Trust When Trustee is Original User. Unless otherwise ordered by the court or provided i n a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, inc luding a catalogue of electronic communications of the trustee and the co ntent of electronic communications. § 5012. Disclosure of Contents of Electronic Commun ications Held in Trust When Trustee Not Original User.

e of electronic communications of the trustee and the co ntent of electronic communications. § 5012. Disclosure of Contents of Electronic Commun ications Held in Trust When Trustee Not Original User. Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an elect ronic communication sent or received by an original or successor user a nd carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian: COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 10 (a) a written request for disclosure in physical or electronic form; (b) a certified copy of the trust instrument that i ncludes consent to disclosure of the content of electronic communications to the trustee; (c) a certification by the trustee, under penalty o f perjury, that the trust exists and the trustee is a currently act ing trustee of the trust; and (d) if requested by the custodian: (1) a number, username, address, or other unique subscriber or account identifier assigned by the cu

nd the trustee is a currently act ing trustee of the trust; and (d) if requested by the custodian: (1) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the trust’s account; or (2) evidence linking the account to the trust. § 5013. Disclosure of Other Digital Assets Held in Trust When Trustee Not Original User. Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account a catalogue of electron ic communications sent or received by an original or successor user and st ored, carried, or maintained by the custodian in an account of the tr ust and any digital assets, other than the content of electronic commun ications, in which the trust has a right or interest if the trustee gives the custodian: (a) a written request for disclosure in physical or electronic form; (b) a certified copy of the trust instrument; (c) a certification by the trustee, under penalty o f perjury, that the trust exists and the trustee is a currently act ing trustee of the trust; and (d) if requested by the custodian: (1) a number,

(c) a certification by the trustee, under penalty o f perjury, that the trust exists and the trustee is a currently act ing trustee of the trust; and (d) if requested by the custodian: (1) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the trust’s account; or (2) evidence linking the account to the trust. COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 11 § 5014. Disclosure of Digital Assets to Guardian of Ward. (a) After an opportunity for a hearing under Divisi on 4 of Title 15, Guam Code Annotated, the court may grant a guardian access to the digital assets of a ward. (b) Unless otherwise ordered by the court or direct ed by the user, a custodian shall disclose to a guardian the catalogue of electronic communications sent or received by a ward; and any digital assets, other than the content of electronic communications, in w hich the ward has a right or interest if the guardian gives the custodi an: (1) a written request for disclosure in physical or electronic form; (2) a certified copy of the court order that gives the guardian authority over the digital

t if the guardian gives the custodi an: (1) a written request for disclosure in physical or electronic form; (2) a certified copy of the court order that gives the guardian authority over the digital assets of the ward; and (3) if requested by the custodian: (A) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the account of the ward; or (B) evidence linking the account to the ward. (c) A guardian with general authority to manage the assets of a ward may request a custodian of the digital assets of the ward to suspend or terminate an account of the ward for good cause. A request made under this Subsection must be accompanied by a cert ified copy of the court order giving the guardian authority over the ward’s property. § 5015. Fiduciary Duty and Authority. (a) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digita l assets, including: (1) the duty of care; (2) the duty of loyalty; and (3) the duty of confidentiality. (b) A fiduciary’s or designated recipient’s authori ty with respect to a digital asset of a user: COL922201715 GCA ESTATES AND PROBATE CH.

2) the duty of loyalty; and (3) the duty of confidentiality. (b) A fiduciary’s or designated recipient’s authori ty with respect to a digital asset of a user: COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 12 (1) except as otherwise provided in § 5004, is subj ect to the applicable terms of service; (2) is subject to other applicable law, including c opyright law; (3) in the case of a fiduciary, is limited by the s cope of the fiduciary’s duties; and (4) may not be used to impersonate the user. (c) A fiduciary with authority over the property of a decedent, ward, principal, or settlor has the right to access any digital asset in which the decedent, ward, principal, or settlor had a right or interest and that is not held by a custodian or subject to a ter ms-of-service agreement. (d) A fiduciary acting within the scope of the fidu ciary’s duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer frau d and unauthorized computer access laws, including applicable sections of Chapter 46 of Title 9, Guam Code Annotated.

decedent, ward, principal, or settlor for the purpose of applicable computer frau d and unauthorized computer access laws, including applicable sections of Chapter 46 of Title 9, Guam Code Annotated. (e) A fiduciary with authority over the tangible, p ersonal property of a decedent, ward, principal, or settlor: (1) has the right to access the property and any di gital asset stored in it; and (2) is an authorized user for the purpose of comput er fraud and unauthorized computer access laws, including ap plicable sections of Chapter 46 of Title 9, Guam Code Annota ted. (f) A custodian may disclose information in an acco unt to a fiduciary of the user when the information is requi red to terminate an account used to access digital assets licensed to t he user. (g) A fiduciary of a user may request a custodian t o terminate the user’s account. A request for termination must be in writing, in either physical or electronic form, and accompanied by: (1) if the user is deceased, a certified copy of th e death certificate of the user; (2) a certified copy of the letter of appointment o f the representative or a small estate affidavit or court order, court order, power of attorney, or trust

py of th e death certificate of the user; (2) a certified copy of the letter of appointment o f the representative or a small estate affidavit or court order, court order, power of attorney, or trust giving the fiduciary au thority over the account; and COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 13 (3) if requested by the custodian: (A) a number, username, address, or other unique subscriber or account identifier assigned by the cu stodian to identify the user’s account; (B) evidence linking the account to the user; or (C) a finding by the court that the user had a spec ific account with the custodian, identifiable by the inf ormation specified in Subparagraph (A). § 5016. Custodian Compliance and Immunity. (a) No later than sixty (60) days after receipt of the information required under §§ 5007 through 5015, a custodian shall comply with a request under this Act from a fiduciary or designat ed recipient to disclose digital assets or terminate an account. If the cus todian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.

nat ed recipient to disclose digital assets or terminate an account. If the cus todian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance. (b) An order under Subsection (a) directing complia nce must contain a finding that the compliance is not in vio lation of 18 U.S.C. § 2702, as amended. (c) A custodian may notify the user that a request for disclosure or to terminate an account was made under this Act. (d) A custodian may deny a request under this Act f rom a fiduciary or designated recipient for disclosure of digital a ssets or to terminate an account if the custodian is aware of any lawful acc ess to the account following the receipt of the fiduciary’s request. (e) This Act does not limit a custodian’s ability t o obtain or require a fiduciary or designated recipient requesting disc losure or termination under this Act to obtain a court order which: (1) specifies that an account belongs to the ward o r principal; (2) specifies that there is sufficient consent from the ward or principal to support the requested disclosure; and (3) contains a finding required by law other than t his Act.

the ward o r principal; (2) specifies that there is sufficient consent from the ward or principal to support the requested disclosure; and (3) contains a finding required by law other than t his Act. COL922201715 GCA ESTATES AND PROBATE CH. 50 REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT 14 (f) A custodian and its officers, employees, and ag ents are immune from liability for an act or omission done in good faith in compliance with this Act. § 5017. Uniformity of Application and Construction. In applying and construing this uniform Act, consid eration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. § 5018. Relation to Electronic Signatures in Global and National Commerce Act. This Act modifies, limits, or supersedes the Electr onic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede Section 101(c) of t hat Act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that Act, 15 U.S.C. § 7003(b). § 5019. Severability.

supersede Section 101(c) of t hat Act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that Act, 15 U.S.C. § 7003(b). § 5019. Severability. If any provision of this Act or its application to any person or circumstance is found to be invalid, or contrary to law, such invalidity shall not affect other provisions or applications of thi s Act that can be given effect without the invalid provisions or appl ications, and to this end the provisions of this Act are severable. --------- COL9222017