Uniform Fiduciary Access to Digital Assets Act Approved

Several months ago, a previous post discussed the important issue of what happens to someone's online accounts after their death.  Last week, the Uniform Law Commission approved model legislation to address this growing problem.

From the Uniform Law Commission's news release:

The Uniform Fiduciary Access to Digital Assets Act solves the problem using the concept of “media neutrality.”  If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.  UFADAA governs four common types of fiduciaries: personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees. 

UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement.  Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA.

The draft legislation -- which gives the deceased's representative access to the accounts unless a will, court order, or law provides otherwise -- would only become effective if adopted by a state's legislature.

Changes in Ohio Adoption Law To Serve Adoptee's Interest

In December 2013, the Ohio legislature made important and long-awaited changes to Ohio’s adoption laws to allow all adoptees - regardless of birth year - easier access to their adoption file and birth certificate. Under prior law, more than 400,000 adoptees born between 1964 and 1996 were unable to access this information.

Beginning in March 2015, Ohio’s adoption laws will allow a past, present, and future adopted person easier access to her adoption record, including her birth parents’ social and medical history records. The law will also allow the Ohio Department of Health to release the county in which the final decree of adoption was ordered for the purpose of obtaining the adoptees birth parents’ location. Additionally, an adopted person will be able to ask her birth parents questions through the Ohio Department of Health.

The ability to access this information will serve an adoptee’s interests by providing her with an avenue to find her biological parents if she would like. However, identifying information of the biological parents is kept anonymous if requested by the parents. These changes could save adoptees from serious health problems by allowing adoptees access to past records, especially pertinent medical information relating to certain health conditions that are better treated early in life. This may even work the opposite way: say an adoptee inadvertently finds out about some health condition she has while in the midst of testing for other problems, but has no side effects from such condition because side effects generally do not manifest until later in life, but the condition is hereditary. In this instance, an adoptee will be able to contact the Ohio Department of Health and inform them of the need to contact her birth mother to inform her of this discovery.

Beginning in March 2015, adoptees can make these requests to the Ohio Department of Health's Division of Vital Statistics for her adoption records and/or to contact her birth parents.

Attorney-Arranged Adoptions: An Overview

Thinking of adopting? Domestic adoptions in Ohio are a growing trend and are generally less expensive than international adoptions due to the increasing regulations and the lengthy process of adopting a child from outside the country. In a private domestic adoption, birth parents choose the adoptive parents. In such case, the prospective adoptive parents compile pictures and provide a short biography about their lives, jobs, interests, parenting philosophy, and hobbies. From this, the birth parents will decide whom they would like to place their child with to raise as their own.

Attorneys are an important part of this 6 month long process. An attorney is needed to file and complete the proper court documents, ensure that the child is immediately placed with the adoptive parents, appear at the court placement and consent hearing, and see the adoption through the finalization process. In most cases, both the birth mother and adoptive parents retain an attorney. In attorney-arranged adoptions, an adoption agency is not required but may be used to complete the home study requirements of the adoptive parents.

The process for an attorney arranged adoption in Ohio is slightly different depending on the county; however, it generally includes a home study to be completed by the adoptive parents, a placement and consent hearing, the filing of a petition for adoption, and a finalization hearing. For more information on fees, costs, processes, future changes in adoption law, and the matching process associated with private adoptions, contact an Ohio adoption attorney.

What is a Lawyer? Kindergarteners and the Law

What is a lawyer? Black’s Law Dictionary defines “lawyer” or “attorney” as “one who is licensed to practice law” or “a person who practices law”. Although these definitions are technically correct, what do they mean to a kindergartener?

We recently attended a local elementary school’s Career Day to teach students about the profession of law. Students were very familiar with rules both inside the classroom (no running) and outside the school (wear your seatbelt). We discussed how these rules – or laws - help illustrate right and wrong; teach responsibility for actions; keep us safe; and provide a fair way to settle problems.

After students identified what a law was, we talked about how lawyers help people understand and follow the law, as well as work to peacefully solve problems. We talked about making laws, famous lawyers like Barack Obama and specific ways our firm works with the law (such as starting a business or writing a contract between an artist and a customer). Students also received coloring pages entitled “What a Lawyer Does”, developed by the South Carolina Bar Law Related Education Division.

Undoubtedly, the highlight of the session was the case of A. Bear et al v. Gold E. Locks. Adapted from a series of lessons provided by the New Jersey State Bar Foundation, this brief demonstration allowed the students to act out roles of plaintiff, defendant, judge, and jury:

• “Mr. Bear, did you invite the defendant into your home?” 
• “Ms. Locks, do you admit to breaking the plaintiff’s chair? Did you repay him for the damages?” 

At the conclusion, the student “jury” had a wide variety of suggested sentences for Goldilocks, such as a $5 fine, forcing her to build a new chair for the Bears, or an extended jail term.

Participation in educational forums like Career Day – while it may result in new clients – is important because it presents a positive image of the law to the next generation of attorneys. Resources to help your interested student learn about lawyers or celebrate Law Day are available from the American Bar Association.

Oral Agreements vs. Written Contracts

Many contracts include a clause like this one:

Entire Agreement: This Contract constitutes the entire agreement between the parties and supersedes any and all prior arrangements, agreements, or discussions with respect to this subject matter. Parties have made no representations other than those contained in this Contract. 

A written contract is presumed to be the final agreement between the parties, and that presumption is even stronger when the agreement contains a clause of this type. What this means is that under the “parol evidence” rule, a party is generally prevented from introducing evidence in court that contradicts the written agreement.

For example, a Central State University professor hired on a written 10 month employment contract could not introduce evidence of a prior oral agreement of a three year contract.  Likewise, imagine a car salesperson who promises “no money down” but provides a final written contract requiring a $1000 down payment. In both cases, the written agreement is controlling.

The moral? Since you will be bound by the written agreement, both you, and an attorney, should read the document carefully before you sign it to make sure that it reflects all previous written or oral discussions.