Fiduciaries Access to Digital Information Act, SS 2020, c 6

1 2020 FIDUCIARIES ACCESS TO DIGITAL INFORMATION c 6 The Fiduciaries Access to Digital Information Act being Chapter 6 of the Statutes of Saskatchewan, 2020 effective (June 29, 2020) as amended by the Statutes of Saskatchewan, 2023, c 28. NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation. 2 c 6 FIDUCIARIES ACCESS TO DIGITAL INFORMATION 2020 Table of Contents 1 Short title 7 Agreement unenforceable if access limited 2 Definitions 8 Access to digital asset 3 Application 9 Fiduciary may apply to court for directions 4 Fiduciary’s right to access digital assets 10 Custodian protected from liability 5 Fiduciary’s duties in relation to digital assets 11 Regulations 6 Fiduciary authority 12 Coming into force 3 2020 FIDUCIARIES ACCESS TO DIGITAL INFORMATION c 6 CHAPTER 6 An Act respecting the Rights and Duties of Certain Fiduciaries in relation to Digital Assets Short title 1 This Act may be cited as The Fiduciaries Access to Digital Information Act. Definitions 2 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; (« 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 or optical means or by any other similar means; (« bien numérique ») “fiduciary” means, in relation to the account holder: (a) an executor or administrator for a deceased account holder; (b) a property guardian; (c) a property attorney; or (d) a trustee appointed to hold in trust a digital asset or other property of the account holder; and includes the Public Guardian and Trustee when acting in one of those capacities; (« fiducial ») “property attorney” means a property attorney appointed by the account holder pursuant to The Powers of Attorney Act, 2002; (« fondé de pouvoir concernant les biens ») “property guardian” means a property guardian appointed pursuant to The Adult Guardianship and Co-decision-making Act; (« tuteur aux biens ») “record” means a record of information in any form; (« document ») “service agreement” means an agreement between an account holder and a custodian. (« accord de prestation de services ») 2020, c 6, s 2; 2023, c 28, s 17‑13. 4 c 6 FIDUCIARIES ACCESS TO DIGITAL INFORMATION 2020 Application 3(1) This Act applies in relation to the following: (a) an executor or administrator for a deceased account holder who died before, on or after the day on which this Act comes into force; (b) a property guardian, whether appointed before, on or after the day on which this Act comes into force; (c) a property attorney, whether appointed before, on or after the day on which this Act comes into force; (d) a trustee acting under a trust created before, on or after the day on which this Act comes into force; (e) a custodian of, or a person who may be a custodian of, a digital asset created, recorded, transmitted or stored before, on or after the day on which this Act comes into force. (2) This Act does not apply to an employer’s digital asset that is used by an employee in the ordinary course of the employer’s business. 2020, c 6, s 3. Fiduciary’s right to access digital assets 4(1) Subject to subsections (2) to (4), the fiduciary of an account holder has the right to access a digital asset of the account holder. (2) Subject to subsection (4), the fiduciary’s right of access pursuant to subsection (1) is subject to and must be consistent with the terms of the following, as applicable, that give instructions in relation to the right of access: (a) the will of the deceased account holder; (b) letters of administration as provided for in The Administration of Estates Act; (c) a guardianship order pursuant to The Adult Guardianship and Co-decision- making Act; (d) a power of attorney pursuant to The Powers of Attorney Act, 2002; (e) a trust; (f) an order of the court. (3) Subject to subsection (4), the fiduciary’s right of access pursuant to subsection (1) is subject to instructions in a provision in the service agreement that limits a fiduciary’s access to a digital asset of the account holder if the account holder agrees to the provision: (a) on or after the date this Act comes into force; and (b) by an affirmative act separate from the account holder’s agreeing to other provisions of the service agreement. 5 2020 FIDUCIARIES ACCESS TO DIGITAL INFORMATION c 6 (4) If more than one instruction in relation to the fiduciary’s right to access a digital asset has been given in an order of the court or other document mentioned in subsection (2) or given by agreement described in subsection (3), the fiduciary’s right to access the digital asset is subject to the most recent instruction. (5) For the purposes of this section, an account holder is not considered to have given instructions under a provision of a service agreement merely by accessing the digital asset or using the account. 2020, c 6, s 4. Fiduciary’s duties in relation to digital assets 5 The duties imposed by law on a fiduciary in relation to tangible personal property, including requirements on the performance of those duties, also apply to the fiduciary in relation to the digital assets of the account holder. 2020, c 6, s 5. Fiduciary authority 6(1) A fiduciary who has the right pursuant to this Act to access a digital asset of an account holder: (a) may, subject to any applicable law, take any action concerning the digital asset that could have been taken by the account holder if the account holder were alive and of capacity; (b) is deemed to have the consent of the account holder for the custodian to divulge the content of the digital asset to the fiduciary; and (c) is deemed to be an authorized user of the digital asset. (2) Unless an account holder agrees, in accordance with subsection 4(3), to a provision in the service agreement that limits a fiduciary’s access to a digital asset of the account holder: (a) any provision in the service agreement that limits the fiduciary’s access to the digital asset of the account holder is void; and (b) the fiduciary’s access pursuant to this Act to a digital asset, notwithstanding the service agreement, does not require the consent of any party to the service agreement and is not a breach of any provision of the service agreement. (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. 2020, c 6, s 6. 6 c 6 FIDUCIARIES ACCESS TO DIGITAL INFORMATION 2020 Agreement unenforceable if access limited 7 Notwithstanding any other applicable law or choice of law provision in a service agreement, a provision in a service agreement is unenforceable against a fiduciary to the extent that the provision limits, contrary to this Act, a fiduciary’s access to a digital asset. 2020, c 6, s 7. Access to digital asset 8(1) A fiduciary who has the right pursuant to this Act to access a digital asset of an account holder may request, in writing, access from the custodian of the digital asset and must include in the request: (a) the original order of the court or other document granting authority to the fiduciary; or (b) a certified copy of the original order or other document granting authority to the fiduciary. (2) A custodian must provide the fiduciary with access to the digital asset of the account holder within 30 days after receipt of the request made pursuant to subsection (1). (3) Subject to the regulations, a custodian may charge a reasonable fee for providing access to the digital asset. 2020, c 6, s 8. Fiduciary may apply to court for directions 9(1) A fiduciary may apply to the court for directions in relation to the fiduciary’s right to access a digital asset of the account holder. (2) A fiduciary who follows the directions of the court is discharged with respect to the subject-matter of the directions unless the fiduciary is guilty of fraud, wilful concealment or misrepresentation in obtaining the directions. 2020, c 6, s 9. Custodian protected from liability 10 A custodian is not liable for any loss incurred with respect to a digital asset of an account holder if the custodian complies with this Act, the regulations, an order or other document mentioned in subsection 4(2) or an agreement described in subsection 4(3), unless the loss is due to that custodian’s own: (a) dishonesty; or (b) wilful conduct that the custodian knows or ought to know is inconsistent with this Act, the regulations, an order or other document mentioned in subsection 4(2) or an agreement described in subsection 4(3). 2020, c 6, s 10. 7 2020 FIDUCIARIES ACCESS TO DIGITAL INFORMATION c 6 Regulations 11 The Lieutenant Governor in Council may make regulations: (a) defining, enlarging or restricting the meaning of any word or expression used in this Act but not defined in this Act; (b) respecting the provision of information by a person, on the request of a fiduciary, as to whether the person is a custodian of a digital asset of another person for whom the fiduciary is acting; (c) respecting fees that may be charged: (i) for the purposes of subsection 8(3), by a custodian for the provision of access to a digital asset of an account holder by a fiduciary; or (ii) by a person mentioned in clause (b) who is responding to a request for information; (d) with respect to any matter governed by this Act: (i) adopting, as amended from time to time or otherwise, all or any part of any relevant code, standard or guideline; (ii) amending for the purposes of this Act or the regulations any code, standard or guideline adopted pursuant to subclause (i); (iii) requiring compliance with a code, standard or guideline adopted pursuant to subclause (i); (e) prescribing any matter or thing required or authorized by this Act to be prescribed; (f) respecting any other matter or thing that the Lieutenant Governor in Council considers necessary to carry out the intent of this Act. 2020, c 6, s 11. Coming into force 12 This Act comes into force by order of the Lieutenant Governor in Council. 2020, c 6, s 12. 8 c 6 FIDUCIARIES ACCESS TO DIGITAL INFORMATION 2020 REGINA, SASKATCHEWAN PrINTEd uNdEr THE AuTHorITy of THE KING’S PrINTEr Copyright©2023