Archive for the ‘newlaws’ Category

What happens to my social media if something happens to me?

Tuesday, September 26th, 2017
This year, the Uniform Fiduciary Access to Digital Assets Act went into effect in Virginia.  This Act has important privacy concerns for users of social media, emails, and other digital assets.  The bill allows for fiduciaries to manage digital property.  Electronic communications, however, are restricted unless the user consents to such access prior to death or incapacity, or if ordered by a court.

Who are fiduciaries?

Fiduciaries include agents under a power of attorney, trustees acting under a trust, and executors and administrators of a deceased individual’s estate.  Court appointed guardian and conservators are also fiduciaries.

What are digital assets?

Digital assets are electronic records in which an individual has a right or interest.  It does not include the device on which the records are stored.  Virtual currency, web domains, and computer files are examples of digital assets.

What are electronic communications?

Electronic communications are communications in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptic system.  It includes text messages, e-mails, and social media messages.  It does not include wire or oral communications, tone-only pagers, communications of tracking devices, or transfer of funds by a financial institution. 

How can I consent or prohibit access?

Consent, or prohibition, of access may be given in the power of attorney, will, or trust naming the fiduciary. 
Some custodians have a terms-of-service or online tools that allow a user to designate a recipient or prohibit disclosure to named persons.  The use of such an online tool will override any contrary directions in the user’s power of attorney, trust, last will and testament, or other writing.  The written consent or prohibition in power of attorney, trust, last will and testament, or other writing, however, overrides a terms-of-service agreement that does not require the user to take affirmative action other than a generic assent to the terms of service. 
In other words, the online tool provided by a custodian of electronic communications or assets will be honored if the user takes an extra step to consent to or prohibit disclosure, or consents by some means other than the generic “I accept terms and conditions” button.  If the online tool does not have this affirmative action, then the estate planning tools can be used to consent or prohibit access. 

Pavan & Virginia’s Assisted Conception Laws

Monday, July 31st, 2017
What does Pavan v. Smith mean for Virginia’s LGBTQ couples interested in utilizing a surrogate mother to start a family?
In Pavan, the United States Supreme Court reversed a decision out of Arkansas that refused to name a birth mother’s wife as a parent on a birth certificate.  Arkansas law permits the naming of a birth mother’s husband as a parent on a birth certificate in cases of artificial insemination.  The Pavan decision opens with “As this Court explained in Obergefell v. Hodges, 576 U. S. ___ (2015), the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’ Id., at ___ (slip op., at 23).” The Supreme Court went on to declare that a birth mother’s same-sex spouse may be named as a parent on a birth certificate when state law permits an opposite-sex spouse to be named in cases of artificial insemination.  Read the full decision here.
Virginia’s Assisted Conception laws allow a woman and her husband to enter into a contract with a surrogate mother, and, if she is married, her husband.  The Attorney General has stated that the written law should apply equally to same-sex couples, however, the General Assembly has never revised the law.  This lack of revision has left many LGBTQ couples unsure if they will be able to enforce their parental rights under the law even if they are named on the birth certificate.  Pavan reiterates that same-sex couples are entitled to all the same rights and responsibilities under the law as opposite-sex couples.  This decision strengthens same-sex spouses’ right to enforce surrogacy contracts, and other rights and responsibilities of being a lawful parent, under Virginia’s Assisted Conception laws.

New Laws Effective July 1, 2012

Thursday, June 28th, 2012

It’s that time of year again.  Most new laws in Virginia become effective as of July 1st each year.

There are many new laws that take effect each year and some of them really don’t seem to have a broad impact.  The news media seems to do a pretty good job of talking about the laws that are most controversial, such as the requirement for an ultrasound prior to getting an abortion.  However, there are always laws that might have a personal impact that you may not have heard about such as changes to the adoption procedures.  If you are in doubt about whether or not something has changed, it is always a good idea to check.

Most of you are probably aware that as of July 1st there is a new law regarding the use of an ignition interlock system you must use on your car if you are convicted of even your first DUI.  This type of system requires you to blow into the ‘machine’ and the vehicle’s ignition system will not work if the system detects alcohol.

You may not be aware of some changes in the rules about the property tax exemptions for disabled veterans, or the fact that two-wheeled motorcycles can now drive next to each other in a lane of traffic.

The Virginia Division of Legislative Services has prepared an easy-to-read summary of the new laws for 2012 in the pdf document “In Due Course” that can be found here.  There is also a page devoted to new laws in 2012 on my website here.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at

Don’t Be a Bully!

Sunday, August 7th, 2011

School is starting and many kids are heading into situations that should be filled with learning and fun.

Unfortunately, many of these kids are also heading into situations filled with some students that are using technology to bully and harass other students.

In July, a federal appeals court in Richmond refused to reinstate a lawsuit brought by a West Virginia high-school student named Kara Kowalski.  Ms. Kowalski claimed that her five-day suspension from Musselman High School, and the subsequent ‘social suspension’ in 2005 had violated her free speech and due process rights.   The actions were ordered by the school after Kowalski created a MySpace page that targeted another student with photos and suggestions that the other student was a ‘whore’ who had ‘herpes’.

Kowalski argued that she should not have been punished by the school for private, out of school speech.  The Fourth Circuit ruled that public schools have a compelling interest in regulating speech that disrupts school activities, and that bullying is a major concern for schools nationwide.  Judge Paul V Niemeyer said that “[S]chool administrators must be able to prevent and punish harassment and bullying in order to provide a safe school environment conductive to learning.”

This case has not been brought before the United States Supreme Court… yet… and it might not ever be brought before the highest court in the nation.  But for right now, the decision of the 4th Circuit is the prevailing law for Virginia.

The Code of Virginia was also modified effective July 1, 2011 to state that the use of cell phones and other wireless telecommunication devices to distribute profane, threatening, or indecent language with the intent to coerce, intimidate or harass any person is guilty of a Class 1 Misdemeanor, which carries a possible jail sentence of up to 12 months and a possible fine of up to $2,500.

As I said before, don’t be a bully.  It is being taken very seriously!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at

New Virginia Laws take effect July 1, 2011

Saturday, June 25th, 2011

The Virginia Legislature passes new laws each year.  Most of the time, these laws become effective on July 1 of that year, although some laws are considered to be so important that they become effective earlier, and occasionally the laws need more time for people to prepare and they might become effective on July 1 of the following year.

These new laws can have an impact on any part of your life in Virginia and can cover any facet of the law from regulations of industries that only affect a few people to traffic regulations that can possibly affect everyone.

This is important, because you are bound to obey these laws as soon as they become effective.  This means that as of July 1, 2011, you may be found to be in violation of a law by performing an act that was perfectly legal on June 30th.

So, where do you find these laws?  Some more popular laws are discussed in newspapers and in news stories.  If you ride a motorcycle, you probably know that as of July 1, 2011 a motorcyclist can go through a red light if he/she has been sitting at a red light for at least 2 minutes, and has exercised due care in venturing into the intersection.  This will be a new sub-section of section 46.2-833(B) with the current sub-sections B and C being now designated as C and D.

I admit that I like to read code sections.  But I’m a lawyer and that’s my job.  For most people, a short, simple outline of the new laws is more appropriate.

The Virginia Division of Legislative Services has prepared an easy-to-read summary of the new laws for 2011 in the pdf document “In Due Course” that can be found here.  There is also a page devoted to new laws in 2011 on my website here.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at