TRUSTS, ESTATES, HEALTHCARE DIRECTIVES IN THE TIME OF CORONAVIRUS

The days of an individual signing an advanced healthcare directive with an attorney and two witnesses surrounding a conference room table are on hold, at least for the time being. 

Over the past month, there have been published media reports of estate planning lawyers executing power of attorney forms on the hood of a car with two witnesses standing six feet apart, yet close enough to the signer or to have documents notarized.

Our office has received several calls this past week from current and prior clients who want to create new estate plans or update existing ones. Some clients see themselves as vulnerable individuals. We have noticed that in reaction to the pandemic, people have put more thought into getting their affairs in order. 

It is important that someone considering a new or updated estate plan not to scramble haphazardly to get an estate plan in place. It would be wise to avoid last minute DIY estate planning services. In the long run, it will cost more to fix a mistake later. And some mistakes can't be undone after a Last Will & Testament is offered for probate in a Surrogates Court.

After the pandemic passes, there will likely be many estate planning documents that were not executed correctly, or lacking essential provisions, when created through online do-it-yourself services. Those estate planning documents will need to be corrected in the coming months.

In the wake of the coronavirus, New York State now permits any notarial act to be performed utilizing audio-video technology such as Skype or Zoom. There are clear guidelines for this put forward by the New York State Division of Corporations. The guidelines are: 

Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met: 



• The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after; 
• The video conference must allow for direct interaction between the person and the Notary (meaning no prerecorded videos of the person signing);
• The person must affirmatively represent that he or she is physically situated in the State of New York; 
• The person must transmit by fax or email a legible copy of the signed document directly to the Notary on the same date it was signed; 
• The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and 
• The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

We look to leverage technology wherever we can. And can use multiple strategies for executing estate planning documents. First, we are able to do videoconferencing for the signing and notarization (if required) of estate planning documents. 

For clients who are not comfortable or adept at using videoconferencing technology, we can do carefully planned in person signings. This would involve choosing an outdoor location and having each person at the execution stand at least six feet away from one another. 

This is a unique time for estate planning practitioners. If you have thought about creating or updating an estate plan, we can help. During the pandemic, the best way to reach us is through email at info@arpino.legal