If you were suddenly in the hospital and unable to answer your phone, could someone you trust keep the rest of your life moving?
They might know where you bank. They may even know the password to your laptop. But that does not necessarily mean they could access the email account connected to your financial accounts, retrieve tax documents from the cloud, manage an online business account, deal with an insurance portal, or get through two-factor authentication when the verification code is being sent to your phone.
This is an increasingly important part of estate planning. Our financial and personal lives are no longer stored only in filing cabinets and desk drawers. They are also stored in email accounts, phones, cloud services, financial platforms, business systems, apps, and online accounts.
Planning for digital assets and incapacity means making sure the person you have chosen to act for you has both the legal authority and the practical information needed to step in if you cannot manage things yourself.
I have written before about including digital assets in your estate plan, particularly when planning for what happens after your death. Incapacity presents a different problem. You are still here, and someone may need access to information or accounts right now in order to manage your financial affairs, protect your property, or simply keep your household running.
A Password Is Helpful. It Is Not Legal Authority.
I sometimes hear people say, “My spouse knows all my passwords, so we’re fine.”
Knowing the password certainly helps. But knowing how to log in and having legal authority to act are not the same thing.
Online service providers have their own security procedures and terms of service. Accounts may also be protected by two-factor authentication, biometric security, recovery codes, device verification, or other safeguards. Certain information, particularly the content of private electronic communications, also receives additional legal protection.
California has a specific law governing a fiduciary’s access to digital assets, the Revised Uniform Fiduciary Access to Digital Assets Act. California later expanded the law to expressly address agents acting under powers of attorney and court-appointed conservators, with those changes taking effect January 1, 2025.
That matters for incapacity planning. California law now provides a process for an agent under a power of attorney to obtain certain digital assets and information associated with electronic communications from the company holding that information. Access to the actual content of electronic communications is treated differently and requires express authority in the power of attorney.
This is one reason I do not view a financial power of attorney as simply another document to add to an estate planning binder. What the document actually authorizes can matter enormously when someone needs to use it.
Digital Assets and Incapacity Are About Much More Than Social Media
When people hear “digital assets,” they often think about Facebook, Instagram, photos, or cryptocurrency. Those certainly can be part of the conversation, but they are not usually where I would start when planning for incapacity.
Think instead about the accounts that quietly run your household or business.
Your primary email account may be the gateway to almost everything else. Bank and investment accounts may be paperless. Mortgage statements, insurance policies, utility bills, tax documents, and medical information may all be stored online. Family photos may exist only in cloud storage.
If you own a business, the problem can become even more significant. Payroll, bookkeeping, banking, vendor relationships, domains, websites, payment processors, and other systems may all depend on accounts that only one person knows how to access.
Cryptocurrency creates its own set of issues because simply knowing that the asset exists may not be enough. Without the appropriate access information, the asset can effectively become unreachable.
You do not need to turn your estate plan into a directory of every account you have ever opened. But someone should be able to determine which accounts matter, where important information is located, and what needs attention if you cannot handle it yourself.
Your Power of Attorney and Your Digital Life Need to Work Together
The changes to California law that took effect in 2025 make this a particularly good time to look at an older power of attorney.
A document prepared years ago may still be legally valid. That does not necessarily mean it addresses the way you live today or gives your agent all of the authority that may be needed to deal with your digital life.
California law distinguishes between the content of electronic communications and other digital assets or information associated with those communications. An agent seeking access to the actual content of electronic communications needs express authority in the power of attorney.
That distinction can matter if your agent needs more than an account balance or list of messages. Access to the substance of an email account could be important because email has become the filing cabinet, mailbox, password recovery system, and communication center for much of modern life.
California law also recognizes certain choices you make directly with an online provider. In some circumstances, a direction made through a provider’s online tool can take priority over a contrary direction in your will, trust, power of attorney, or another estate planning document.
That is another reason I do not look at estate planning documents and online account settings as completely separate things. They can affect one another.
Your Family Should Not Have to Reconstruct Your Life During a Crisis
Imagine trying to figure all of this out while someone you love is in the hospital.
Which email address is connected to the mortgage account? Where is the homeowners insurance policy? Is the electric bill on autopay? Where are last year’s tax returns? What company hosts the business website? Which credit cards have recurring charges? Where are the family photographs stored? Is there cryptocurrency somewhere? What happens if the phone receiving all the authentication codes is locked?
None of these questions is particularly difficult when you are available to answer them. They become much harder when you are not.
This is why I like clients to maintain a secure inventory of the accounts and systems that actually matter. It does not need to identify every shopping account or app on your phone. It should give the person you trust enough information to understand the financial and practical framework of your life.
Sensitive login information should be protected rather than written directly into your will or trust. A will can eventually become part of a public probate file, which is one reason passwords, PINs, recovery codes, and similar information do not belong there.
The goal is not to give everyone access to everything. It is to make sure the person you deliberately chose has a reasonable way to find what matters and the legal authority to act when necessary.
Provider Tools Can Help, but They Do Not Replace Your Estate Plan
Some technology companies allow users to designate someone to receive information after death or after a period of inactivity. Those tools can be useful, but they are not necessarily substitutes for incapacity planning.
Apple’s Legacy Contact feature is a good example. It allows someone you designate to request access to certain data associated with your Apple Account after your death, but it is specifically designed for post-death access. It also does not give a Legacy Contact access to passwords, passkeys, or payment information stored in iCloud Keychain.
Incapacity is an entirely different situation. You are still alive, and someone may need to pay bills, work with financial institutions, locate insurance information, manage property, obtain records, or keep a business operating.
A tool designed to transfer information after death may do nothing to solve those immediate problems. Your provider settings, estate planning documents, secure account information, and the people you have chosen to act should therefore be considered together.
A Modern Estate Plan Has to Account for the Way You Actually Live
Estate planning is not only about deciding who receives your property after you die. A complete plan should also address what happens if you are alive but cannot manage your own financial or personal affairs.
Today, that necessarily includes your digital life.
If your estate plan was prepared several years ago, this is one of the things worth reviewing. Your assets may have changed, your accounts and technology almost certainly have, and California law governing access to digital assets has changed as well.
The larger question is whether the estate plan you already have still works for the life you have today. Even well-drafted documents can become outdated as your family, assets, fiduciaries, technology, and the law change.
When I create or review an estate plan, I want the people you have chosen to help you to be able to actually step in when needed. That means more than naming an agent in a power of attorney or a trustee in a trust. The legal documents need to give them appropriate authority, and they need a practical way to locate the information and accounts that matter.
You do not need to document every detail of your digital life. You do need to think about which accounts and information someone would need if you could not manage them yourself, where that information is kept, and whether the people you trust would know how to find it.
At Cheever Law, I work with individuals and families throughout California to create estate plans designed for both death and incapacity. If your plan has not been reviewed recently, or you are not sure whether your power of attorney adequately addresses your digital assets, we can look at what you have and determine whether it still fits your life today.
You can schedule a 15-minute introductory call to learn more about getting started.