Can an agent under a power of attorney read email?
Key takeaway
Yes, in Minnesota, for example, an agent can request email contents to the extent a power of attorney expressly authorizes it, unless the principal or court directs otherwise, by submitting a written request, the original or a copy of the expressly authorizing power of attorney, certification under penalty of perjury that it is in effect, and any requested custodian-assigned account identifier or evidence linking the account to the principal, subject to controlling user directions, the custodian’s statutory limits and federal law.
This is a Minnesota example, and other states differ. Start your review with the document’s exact language, the account owner’s disclosure directions and the records needed for a request.
The Minnesota request for email contents
For the written request described above, Minnesota accepts physical or electronic form.
The Minnesota chapter applies to custodians when the user resides in Minnesota or resided there at death. It excludes an employer’s digital asset used by an employee in the ordinary course of the employer’s business.
For this chapter, communication contents concern a message’s substance or meaning, sent or received by the user and not readily accessible to the public.
The communication must also be electronically stored by a custodian providing electronic communication service to the public, or carried or maintained by a custodian providing remote computing service to the public.
Account directions can change the result
In Minnesota, for example, if an online tool lets the user modify or delete a disclosure direction at all times, that direction overrides a contrary direction in a will, trust, power of attorney or other record.
If the user gave no tool direction under that provision, or the custodian provided no tool, the user may allow or prohibit disclosure through those documents, including disclosure of communication contents.
Either type of direction overrides a contrary service agreement provision when that provision does not require affirmative, distinct assent separate from assent to the service terms.
The chapter preserves contractual access and use rights and gives a fiduciary no new or expanded rights beyond the user’s rights.
Access may be modified or eliminated by the user or federal law, or by service terms if the user has not provided a disclosure direction under the statute.
The provider chooses how to disclose
In Minnesota, for example, a custodian disclosing digital assets may choose full account access, access sufficient for assigned tasks, or copies of qualifying assets.
Copies cover assets the user could have accessed when the custodian received the request, assuming the user were alive, fully capable and able to access the account.
The custodian may assess a reasonable administrative charge and need not disclose assets the user deleted.
For a request covering some assets, the custodian need not disclose them if separating them would impose an undue burden.
In that situation, the custodian or fiduciary may seek a court order for a subset limited by date, all assets to the fiduciary or designated recipient, no assets, or all assets for private court review.
For your planning discussion, identify the account, locate the authority document and record any disclosure directions. Ask your attorney to review these together before preparing a request.
Two related terms
Custodian: In Minnesota, for example, a custodian is a person that carries, maintains, processes, receives or stores a user’s digital asset.
Catalogue of electronic communications: In Minnesota, for example, the statutory catalog identifies the people with whom a user communicated, the communications’ times and dates, and those people’s electronic addresses.
A prompt to start the conversation
The following excerpt encourages an estate planning conversation. Bring your email access questions to that meeting.
"So I would just encourage all the listeners, if they haven't had a conversation with their estate planning attorney, or they've put off estate planning like most Americans, just 'cause they don't want to think about it,"
Frequently asked questions
Does a durable power of attorney automatically begin only upon incapacity?
No, in Minnesota, for example, durability means the authority remains exercisable despite later incapacity or incompetence when the instrument contains the statutory example language or similar words showing that intent.
Durability alone does not establish that authority begins only upon incapacity.
Does a durable power of attorney continue after death?
No, in Minnesota, for example, it terminates at the earliest of the principal’s death, a termination date specified in the instrument, or commencement of marital dissolution, separation or annulment proceedings when the agent is the principal’s spouse.
Does Wisconsin also require express authority for communication contents?
Yes, Wisconsin requires an express power of attorney grant to access communication contents sent or received by the principal, and another agreement or instrument governing the authority or property must not prohibit its exercise.
This rule concerns the grant of authority. It does not establish the custodian’s disclosure procedure.
Sources
- Minnesota section 521A.02: communication contents, custodian and catalog definitions.
- Minnesota section 521A.03: applicability and employer asset exclusion.
- Minnesota section 521A.04: disclosure directions and priority.
- Minnesota section 521A.05: existing rights and access limits.
- Minnesota section 521A.06: disclosure methods, charges, deleted assets and burdensome segregation.
- Minnesota section 521A.09: agent requests for communication contents.
- Minnesota section 523.07: durability and termination.
- Federal communication disclosure restrictions: federal limits and statutory exceptions.
- Wisconsin chapter 244, section 244.41(1)(i): express authority for communication contents.