BILL 19

Fiduciaries Access to Digital Assets Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions

1 The following definitions apply in this Act.

“account holder” means an individual who has entered into a service agreement with a custodian. (titulaire de compte)

“court” means The Court of King’s Bench of New Brunswick and includes a judge of that court. (cour)

“custodian” means a person who holds, maintains, processes, receives or stores a digital asset of an account holder. (gardien)

“digital asset” means a record that is created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic, optical or other similar means. (bien numérique)

“fiduciary”, in relation to an account holder, means (fiducial)

(a)  a representative appointed for the account holder,

(b)  an attorney for property appointed by the account holder under the Enduring Powers of Attorney Act,

(c)  a personal representative, in the case of an account holder who is deceased,

(d)  a trustee, other than a trustee in bankruptcy, appointed to hold a digital asset or other property of the account holder in trust, or

(e)  any other person or class of person prescribed by regulation.

“personal representative” means an executor or an administrator of an estate. (représentant personnel)

“record” means a record of information in any form. (document)

“representative” means (représentant)

(a)  a person appointed as a committee of the estate under the Infirm Persons Act or appointed under paragraph 39(3)(a) of that Act to perform acts or make decisions relating to property,

(b)  a person who becomes a committee of the estate under the Mental Health Act, or

(c)  a person appointed as a committee of the estate of an absentee under the Presumption of Death Act.

Application

2( 1) This Act applies to

(a)  a person who was a fiduciary before the commencement of this section or who becomes a fiduciary on or after the commencement of this section, and

(b)  a person who is or who may be a custodian of a digital asset created, recorded, transmitted or stored before, on or after the commencement of this section.

2( 2) This Act does not apply to a digital asset of an employer that is used by an employee in the ordinary course of the employer’s business.

This Act binds the Crown in Right of the Province

3 This Act binds the Crown in Right of the Province.

Fiduciary’s right to access digital assets

4( 1) Subject to subsections (2) to (4) and consistent with the fiduciary’s authority, the fiduciary of an account holder has the right to access a digital asset of the account holder.

4( 2) A fiduciary’s right of access to a digital asset is subject to any instructions in relation to the fiduciary’s right of access in

(a)  the will of the deceased account holder,

(b)  the letters of administration for the estate of the account holder,

(c)  the order appointing a representative for the account holder,

(d)  the enduring power of attorney of the account holder,

(e)  the trust instrument, or

(f)  a court order.

4( 3) A fiduciary’s right of access to a digital asset is subject to any instructions in relation to the fiduciary’s right of access in a provision of the service agreement between the account holder and a custodian if, on or after the commencement of this section, the account holder agrees to the provision by an affirmative act separate from the account holder’s agreement to the other provisions of the service agreement.

4( 4) If more than one instruction in relation to a fiduciary’s right of access to a digital asset has been given, the fiduciary’s right of access is subject to the most recent instruction.

4( 5) For the purposes of subsections (3) and (4), an account holder is not considered to have given instructions in relation to a fiduciary’s right of access to a digital asset in a provision of a service agreement merely by accessing a digital asset or using the account.

Fiduciary’s duties in relation to digital assets

5 The duties imposed by law on a fiduciary in relation to tangible personal property also apply to the fiduciary in relation to digital assets of the account holder.

Fiduciary’s authority

6( 1) A fiduciary who has the right to access a digital asset of an account holder

(a)  is deemed to have the consent of the account holder for the custodian to disclose the content of the digital asset to the fiduciary,

(b)  is deemed to be an authorized user of the digital asset, and

(c)  may take any action concerning the digital asset that could have been taken by the account holder if the account holder were alive and of full capacity, subject to any applicable law.

6( 2) Unless an account holder agrees, on or after the commencement of this section, to a provision in a service agreement that limits a fiduciary’s access to a digital asset of the account holder by an affirmative act separate from the account holder’s agreement to the other provisions of the service agreement,

(a)  a provision in the service agreement that limits the fiduciary’s right to access a digital asset of the account holder is void, and

(b)  the fiduciary’s access to the digital asset does not require the consent of any party to the service agreement and is not a breach of any provision of the service agreement.

6( 3) If a fiduciary has authority over an account holder’s tangible personal property that is capable of holding, maintaining, receiving, storing, processing or transmitting a digital asset, the fiduciary

(a)  has the right to access the property and any digital asset stored in it, and

(b)  is deemed to be an authorized user of the property.

Provisions in service agreement unenforceable

7( 1) Despite any other law or any choice of law provision in a service agreement, a provision in a service agreement is unenforceable against a fiduciary to the extent that it limits, contrary to this Act, the fiduciary’s access to a digital asset of an account holder.

7( 2) A provision in a service agreement that purports to restrict jurisdiction or venue to a forum outside of New Brunswick is void with respect to a dispute in relation to a fiduciary’s right to access a digital asset of an account holder under this Act.

Request for access to digital asset

8( 1) A fiduciary who has a right to access a digital asset of an account holder may request access from the custodian by making a request in writing accompanied by proof of the fiduciary’s identity and the following documents:

(a)  if the account holder is deceased,

( i) if letters probate of a will or letters of administration have been granted to the fiduciary under the Probate Court Act, the original or a certified copy of the letters, or

( ii) the original or a certified copy of the account holder’s will and death certificate or other document that provides proof of the account holder’s death; or

(b)  if the account holder is alive, the original or a certified copy of

( i) the court order, enduring power of attorney or trust instrument that grants authority to the fiduciary, or

( ii) a document prescribed by regulation that grants authority to the fiduciary.

8( 2) A custodian that receives a request under subsection (1) shall provide the fiduciary with access to the digital asset within 30 days after receiving the request and the relevant accompanying documents.

8( 3) Subject to the regulations, a custodian may charge a reasonable fee for providing access to a digital asset.

Directions of the court

9( 1) A fiduciary may apply to the court for directions in relation to the fiduciary’s right to access a digital asset of an account holder.

9( 2) A fiduciary who follows the directions of the court is discharged with respect to the subject matter of the directions unless the fiduciary obtained the directions through fraud, wilful concealment or misrepresentation.

Immunity

10 No action or other proceeding lies or shall be instituted against a custodian for anything done or purported to be done in good faith or in relation to anything omitted in good faith by the custodian under this Act or the regulations.

Regulations

11 The Lieutenant-Governor in Council may make regulations

(a)  prescribing persons or classes of persons for the purpose of the definition “fiduciary” in section 1;

(b)  prescribing documents for the purpose of subparagraph 8(1)(b)(ii);

(c)  respecting requests for information by fiduciaries to determine whether a person is a custodian;

(d)  respecting the provision of information referred to in paragraph (c);

(e)  respecting fees that may be charged

( i) by a custodian for providing access to a digital asset, or

( ii) by a person for providing information referred to in paragraph (c);

(f)  defining words and expressions used in this Act but not defined in this Act for the purpose of this Act, the regulations or both.