1. Title of Resolution:
Harmonizing Fiduciary Access to Digital Assets Across Canada
2. Proposing Entity:
CBA Section Name: Wills, Estates & Trusts
3. (i) Person moving Resolution:
Will be present at Annual Meeting: Yes
Name: Charlotte M. McCurdy
Firm name: Tierney Stauffer LLP
E-mail: Wills.estates.trust@cba.org
3. (ii) Person seconding Resolution:
Will be present at Annual Meeting: No
Name: Amy MacAlpine
Firm name: Hummingbird Lawyers LLP
E-mail: Wills.estates.trust@cba.org
4. Governance Alignment Statement:
(Outline how the resolution supports or advances the Association’s strategic plan, values, and mission—See Strategic Direction for the CBA below.)
The resolution advances the CBA’s role as the essential ally and advocate of the legal profession and guardian of the rule of law by addressing a rapidly evolving area of law—fiduciary access to digital assets—where clarity, consistency, and fairness are needed across Canadian jurisdictions. By promoting harmonized and privacy-respecting legislative standards, the resolution supports the profession, the justice system, and the public in navigating an increasingly important challenge.
Specifically, the resolution encourages adoption of legislation across all Canadian jurisdictions that enables fiduciaries to access digital assets and information so that attorneys acting under a power of attorney, executors or administrators acting on behalf of an estate, guardians, committees, or trustees can meet their fiduciary obligations to locate, access, preserve, and administer such assets on behalf of a deceased or incapacitated person. Uniform legislation would also provide clarity for custodians of digital assets regarding when and how they may grant access to fiduciaries.
Endorsement by a respected national organization such as the CBA—whose mission includes improving the law and upholding the rule of law—would support provinces and territories that currently lack comprehensive frameworks in tabling comparable legislation. With two territories and seven provinces still without clear rules, uncertainty persists for fiduciaries, custodians, and families in these jurisdictions.
This resolution speaks directly to the CBA’s mission priorities. It improves the law by encouraging modern, uniform standards; it strengthens the administration of justice by reducing uncertainty, delay, and cost; and it advances access to justice by reducing uneven rules across the country. It also supports equity by working toward comparable protections for Canadians across the country.
Furthermore, the resolution reinforces the CBA’s role as a national voice for the profession. It is consistent with our strategic pillars as it shows leadership on a current legal challenge.
5. Benefits and Impacts:
(Describe the expected outcomes and effects this resolution will have on the legal profession, public trust in the legal system, access to justice, the Rule of Law or other.)
The expected benefit of this legislation is the adoption of clear, contemporary legislation governing fiduciary access to digital assets. It will address statutory gaps affecting estates, incapacity planning, fiduciary obligations, including the conflict between privacy rights and the fiduciary’s obligations. Timely access to digital financial and personal information can be essential to protecting rights and safeguarding assets by providing lawyers with a reliable framework when advising clients.
Technology companies and financial institutions will also benefit from predictable, standardized legal obligations when responding to fiduciary requests, which should reduce potential liability.
The CBA branches in the provinces and territories without such legislation gain a nationally endorsed foundation for engaging their governments, helping to advance a unified voice for the Association.
6. Estimated cost of implementation to CBA:
(Including financial and non-financial resources required such as the amount of any increase in budget requirements, and the amount of staff time to implement the resolution, volunteer time, communication needs etc.) Note: National Office staff can assist in calculating implementation cost.
The costs associated with implementing this resolution are low.
For the CBA, work would be limited to routine advocacy activities—coordinating with Sections and Branches, preparing correspondence and submissions, and monitoring legislative developments—which can be absorbed within existing staff and volunteer capacity.
For governments, adopting legislation based on the ULCC model act involves modest policy and drafting work that falls within normal departmental operations and does not require new administrative structures or significant resources.
Any implementation costs for custodians of digital assets (such as updating internal protocols) are minimal and consistent with practices already adopted in jurisdictions that have enacted similar legislation.
Overall, the benefits of uniform legislation significantly outweigh these limited and predictable costs.
7. Contact person(s) who can assist in the implementation of the Resolution:
Name: Charlotte M. McCurdy
Firm name: Tierney Stauffer LLP
E-mail: Wills.estates.trust@cba.org
8. Implementation Calendar:
(List proposed steps to be taken by the CBA to implement the Resolution and suggested dates for completion of each step.)
The executives of our CBA Sections will engage the Chairs of the Wills, Estates & Trusts Sections in every province and territory to encourage steps toward adopting this legislation. While the exact timeline is still being confirmed, this work should be undertaken within the next few months.
9. Indicator of Success:
(Identify practical, measurable outcomes that will indicate successful implementation.)
Success would be achieved if the remaining Canadian jurisdictions enact legislation that bridges the gap between the digital world reality and the current legal landscape.
10. Stakeholder Identification:
(List all affected stakeholders, including other CBA groups, Branches, Sections, Committees or Subcommittees who will be directly impacted and describe how these groups may be positively or negatively affected.)
Stakeholder Group 1: CBA Elder Law Section
Potential impact: The resolution directly supports the Elder Law Section’s work by strengthening protections for older adults whose financial and personal information is increasingly digital. Clear, uniform rules governing fiduciary access help ensure that attorneys under powers of attorney and guardians can locate and secure essential digital records, such as banking information, service accounts, and health documents, when assisting older adults who may be incapacitated or vulnerable. This reduces the risk of financial abuse. The resolution aligns closely with the Elder Law Section mandate to safeguard autonomy, dignity, and the effective administration of substitute decision-making.
Stakeholder Group 2: CBA Privacy Law Section
Potential impact: This resolution engages directly with key issues in data protection, lawful access, and the rights of account holders. Uniform legislation would provide a clearer framework for when and how fiduciaries may access digital records while safeguarding privacy rights of both deceased and incapacitated individuals. It also gives clarity to service providers who operate under complex privacy statutes and international data rules.
Stakeholder Group 3: All provincial and territorial branch Sections for Wills, Estates & Trusts, Elder Law and Privacy Law.
Potential impact: For CBA branches, this resolution provides a clear and nationally endorsed foundation for engaging provincial and territorial governments on an issue that increasingly affects members across multiple practice areas. Wills and Estates branches benefit from a consistent framework that supports more efficient and predictable estate administration. Elder Law branches gain a stronger basis for advocating protections for older adults, ensuring substitute decision-makers can access necessary digital information to safeguard assets and support care planning. Privacy branches are better positioned to promote legislation that balances lawful fiduciary access with strong privacy protections and clear obligations for custodians of digital information. Together, the resolution gives all three branches consistent messaging and a unified national approach to modernizing digital-asset laws.
11. Risk Analysis:
(Outline foreseeable risks, including but not limited to operational challenges, financial, legal risks or any other barriers to implementation and proposed mitigation measures.)
Any risks associated with this proposal are minor and manageable.
There is the potential for some provinces or territories to be reluctant to adopt comparable legislation if the Act does not perfectly align with their existing laws. For this reason, the proposal suggests comparable legislation, to allow for tailoring to the jurisdiction.
The provinces may also feel that the national section is encroaching on provincial autonomy over property and civil rights; however, this proposal is solely an endorsement with a view to harmonizing laws and reducing inconsistencies that can lead to costs and/or delays.
Last, stakeholders could raise concerns that expanding fiduciary access to digital assets may conflict with privacy rights (e.g., accessing correspondence, social media content, cloud storage); however, the ULCC model act includes privacy protections.
With proper communication—emphasizing privacy protections, respect for provincial autonomy, and the practical benefits for Canadians—the resolution is well aligned with CBA priorities and presents minimal strategic downside.
12. Any information not appearing on the face of the Resolution to inform the deliberations:
(Attach or link to any background papers or other documentation in addition to this form. Attach or link to documentation in both French and English, where it exists in both official languages.)
None
Strategic Direction for the CBA:
We are the essential ally and advocate of the legal profession and guardian of the rule of law.
Our mission includes seven core priorities:
- To improve the law
- To improve the administration of justice
- To improve and promote access to justice
- To promote equity in the legal profession and the justice system
- To improve and promote the knowledge, skills, ethical standards and well-being of members of the legal profession
- To represent the legal profession nationally and internationally
- To promote the interests of the members of The Canadian Bar Association
Our Strategic Pillars:
- Meet our members’ needs
- Expand our membership
- Promote equity and justice
- Enhance our internal cohesion
