66 THE QUEENS COURIER • HEALTH • JUNE 7, 2018 FOR BREAKING NEWS VISIT WWW.QNS.COM
The Elder Law Minute TM
Estate Planning Considerations for Digital Assets
BY RONALD A. FATOULLAH, ESQ.
AND JAMES A. E. ASQUITH, ESQ.
Th ere is no universally accepted defi nition
ELDER LAW
Communication and the Alzheimer's patient
BY DR. SHELDON ORNSTEIN
In spite of language losses suff ered by an
individual with Alzheimer's disease (AD),
many skills that support communication
are remarkably preserved and remain for a
long time. When working with the AD individual,
the caregiver should keep in mind
six abilities that are nearly always preserved.
1) The Use of Procedural
Memories
Individuals with AD begin to lose memory
for words, information and events
quite rapidly, but procedural memory, or
the knowledge of how to perform familiar
tasks remain relatively intact until the
later stages of dementia. Th e research suggests
that this is because procedural memory
is the most elemental of human memory
systems and is the only memory system
capable of operating independently.
Th is system can sustain some very
complex human activity such as walking,
washing hands, or even driving a
car. Procedural memory is like a computer
program whereas other types of memory
are like data stored in the computer.
Alzheimer patients begin to lose data
rapidly but still function. Th ey may forget
where they are going, but they still know
how to walk. Th ey may forget what they
are saying, but they still know how to talk.
2) The Ability to Access
Early Life Memories
One particular phenomenon repeatedly
mentioned by family and caregivers
is the ability of the AD
patient to recall childhood
memories better
than information from
more recent decades.
Families are dismayed
to note that while mother
cannot remember the
name of her spouse of
many years or any of
her children, she easily
recalls the name of her
mother who died when
she was a child.
Earliest memories
appear to be so “hard wired” that they
resist irreparable deterioration for a very
long time. Some families may fi nd this
upsetting and engage in endless eff orts
to bring their loved one back to the present.
If they can accept and enjoy the old
memories that their mother summons,
they would fi nd greater satisfaction in
their conversations.
3) The Ability to Recite and
Sing with Good Pronunciation
Speech language pathologists and linguists
who have studied the language of
the AD individual, have observed that
while the patient with AD has little to
say, they can say it with good grammar.
Th ey can still respond automatically to
greetings, recite prayers and sing long
forgotten songs. In fact, this automatic
singing and speaking ability oft en brings
comfort to their daily lives.
4) The Ability
to Engage in
Social Ritual
Th e AD person retains
the ability to use social ritual
such as “Please pass
the sugar” and “How are
you today?” In several
studies that looked at
dining abilities of the AD
person, the subject carried
out social rituals off ering
small talk, “Would you
like some coff ee?” AD
individuals can exchange
greetings, ask the time, excuse themselves
and accept a compliment.
5) The Desire for Interpersonal
Communication
Sometimes an individual with AD can
drive their caregiver to total distraction
with their constant complaining and asking
for things that they don’t need. Th eir
real need is for human contact. Th ey may
have learned that if they don’t complain
or demand, nobody will talk to them.
Most AD persons retain a strong
desire to communicate until one particular
study found that loss of the desire
to communicate was a signal that they
were passing into a more severe stage of
the disease.
6) The Desire for
Interpersonal Respect
Th e best evidence that the AD individual
retains is their desire for respect and
how quickly they can show resentment
when treated with disdain by their caregiver.
From their point of view, lack of
respect includes:
a) having their caregiver not talk to
them
b) yelling at them as if they were children
c) being ignored
d) being called by “pet” names without
permission
e) receiving medical treatment without
explanation.
Although their behavior may indeed be
childlike and exasperating, the AD person
continues to expect being treated as
an adult and they react more positively
when addressed as that adult.
Plato once said, “Never discourage
anyone who continually makes progress,
no matter how slow.” Plato’s remark
holds true even today, especially with
regards to caring and understanding the
individual aff ected with Alzheimer’s.
Quotable Quote: “Th e noblest art of
man is making others happy.” Anon.
Dr. Sheldon Ornstein is a registered
professional nurse with a doctoral degree
in nursing organization. He has specialized
in the care of older adults and has
published many articles on the subject.
He has done post-graduate work in gerontology
and has taught at several universities.
In 2013, he was inducted into
the Nursing Hall of Fame at Teachers
College, Columbia University.
of digital assets, but they can be broadly
defi ned as all digital property and electronic
communications accessed by a computer,
smartphone, tablet or server. Digital
assets include information that is stored on
a computer and content that is uploaded to
a website. Companies that store an individual’s
digital assets are known as custodians.
Examples of digital assets include email
correspondence or information that has
been uploaded onto websites like Facebook
or Instagram.
Absent any statute to the contrary, access
to digital assets is governed by the custodian’s
Terms of Service Agreement (TOSA).
Th ese agreements are typically very restrictive.
For example, upon the death of an
account owner, the right to access the
account does not necessarily pass in accordance
with the account owner’s last will
and testament or testamentary plan. Under
the terms of many TOSAs, all photographs
and other data uploaded to these accounts
are the property of the custodian, not the
individual account holder. Furthermore,
many TOSAs prohibit third party access to
online accounts irrespective of whether the
account owner is alive or dead. In an age
when many people store all of their photographs,
video footage and personal correspondence
online, the inability of a decedent’s
family to access this information can
be extremely distressing.
Th e RUFADAA (Uniform Fiduciary
Access to Digital Assets Act, Revised in
2015) is an attempt to address this problem.
Th is Act, now adopted in 38 states including
New York, recognizes the existence
of digital property as a property right that
can be managed, conserved and, in certain
instances, accessed by third parties in much
the same manner as other rights in real and
tangible personal property. Th us, under the
RUFADAA, if a person’s estate planning
documents (e.g. a will or a power of attorney)
specifi cally grant a fi duciary the power
to access a digital asset, the provisions of the
TOSA will no longer prevail and the custodian
must grant access. However, if a person
takes no affi rmative action to grant his
fi duciary access to his digital assets, the provisions
of the TOSA will determine whether
the custodian will grant a fi duciary access
to said assets.
Th e RUFADAA not only allows a person
to grant or restrict his fi duciary’s access to
his digital assets through his estate planning
documents, but also allows him to grant or
restrict such access through what is referred
to as an “online tool.” Th e Act defi nes an
online tool to be an electronic service provided
by a custodian that allows the user
to provide directions for the disclosure or
non-disclosure of digital assets to a third
person. It should be noted that provisions
made using the online tool will trump any
provision made in an estate planning document
or the terms of the TOSA.
Wh en a person is considering his estate
plan, it is important to give special consideration
to digital assets. In addition to taking
steps to properly plan for the disposition
of digital assets upon death, it is also
recommended that individuals make an
inventory of their digital assets and store
such an inventory along with their other
important documents so that their fi duciary
is aware of what digital assets they have.
Such an inventory should include website
addresses, passwords and security questions
and answers. A failure to properly
plan may result in family members being
unable to access photographs, correspondence,
and other records of sentimental or
possibly monetary value in the event of a
person’s incapacity or death. If you would
like to learn more about how to properly
plan for access to your digital assets in the
event of your death or incapacity, it is advisable
to speak with a knowledgeable estate
planning attorney.
Ronald A. Fatoullah, Esq. is the principal
of Ronald Fatoullah & Associates,
a law fi rm that concentrates in elder
law, estate planning, Medicaid planning,
guardianships, estate administration,
trusts, wills, and real estate. James
A. E. Asquith is an elder law attorney
with the fi rm. Th e law fi rm can be
reached at 718-261-1700, 516-466-4422,
or toll free at 1-877-ELDER-LAW or
1-877-ESTATES. Mr. Fatoullah is also
a partner with Advice Period, a wealth
management fi rm, and he can be reached
at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*