Estate Planning in a Time of Crisis
Getting your estate planning documents together can be challenging during the best of times. You need to make a variety of important decisions, such as what documents to obtain, who to leave your assets to, and who to pick as agents and fiduciaries.
The recent public health crisis has added additional complications. If you have made all your decisions and your documents are ready to sign, how do you meet with professionals to accomplish the signing? Given current social distancing recommendations and workplace personnel restrictions, in person conferences seem almost impossible.
Essentially, there are two main challenges. First, how can an attorney appropriately supervise document execution if he or she is not there in person? Second, how can notarized documents be signed if the Notary Public is not present with the signer? The following questions and answers will help you understand how to successfully navigate these two challenges.
Does a lawyer need to supervise the signing of my documents?
There is no such legal requirement, however, it is advisable that an attorney supervise the signing of your documents. The attorney serves two primary functions at a document signing. First, the attorney explains the documents and answers any questions you may have. This allows you to fully understand exactly what you’re signing. Second, the attorney ensures compliance with all formalities of execution.
What types of things would the attorney explain?
For example, the New York Statutory Power of Attorney and Statutory Gifts Rider form is ten pages long and presents the principal with two places to sign and twenty-four potential places to initial. Depending on your needs and goals, you may want to initial in certain places and not in others. In addition, your agents also need to sign after they understand their fiduciary responsibility. If the document is not executed properly, you could be left with a Power of Attorney that does not allow your agent to help you when you most need it. Unfortunately, there are many reported cases where critical mistakes were unknowingly made in the execution of Powers of Attorney.
What do you mean by formalities of execution?
For example, a Last Will and Testament in New York must be signed pursuant to specific rules in the presence of two witnesses. If the signing ceremony is improperly done, then your Will could potentially be invalid. In addition, there are rules as to who can serve as witnesses. If these rules are not obeyed, it could affect the validity of your Will or impair a gift to a beneficiary.
If I can’t personally meet with my attorney, what do I do?
The good news is that modern technology may allow an attorney to properly explain and supervise the signing of your documents. Using FaceTime, Zoom, Skype, or similar video conferencing technology, the attorney can virtually speak to you face to face. It also allows the attorney to view the actions of you and your witnesses in order to ensure compliance with the formalities of execution.
Are there other considerations if the document execution is virtual?
Yes.The attorney should confirm you have obtained two appropriate witnesses for your Will, Health Care Proxy, and/or Statutory Gifts Rider. In addition, the appropriate social distancing recommendations should be observed by you and your witnesses.
What do we do if we need a Notary Public?
Governor Cuomo recently signed Executive Order 202.7, which allows for remote notarization utilizing audio-video technology, such as Facetime, Zoom, or Skype. There are certain rules to abide by, including having a copy of the notarized documents faxed or electronically sent to the Notary on the same day it was signed. Although somewhat complicated, the process does allow the Notary to notarize the signer’s signature despite not being physically present.
How do I obtain the services of a Notary Public?
Most attorneys are Notary Publics and can do the remote notarization, in addition to supervising the execution of your documents.
What documents require a Notary Public?
Your Power of Attorney and Statutory Gifts Rider require notarized signatures. Your Will and Health Care Proxy do not. Your Will should be accompanied by a notarized affidavit signed by your witnesses, however that does not need to be done at the same time as your Will.
If I sign a Power of Attorney, my agents must sign as well?
Yes, but they need not sign at the same time as you do. Your agents cannot use the Power of Attorney, however, until they sign the document before a Notary Public.
As you can see, signing your estate planning documents is best done under the supervision of an attorney. Given the current public health crisis, it has become challenging for attorneys to provide that service. Thankfully, through the appropriate use of technology and the recent authorization by the Governor of remote notarizations, there are options to get your documents properly executed despite these challenges.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty-three years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, email@example.com, and www.oalaw.com.