Executive Order 202.7 which was effective on March 19, 2020 provides that any notarial act is authorized to be performed utilizing audio-visual technology provided certain conditions are met.
One suspects the drive behind this EO was to avoid the real estate industry in New York from grinding to a halt due to COVID-19. Why? Because in New York, all that is required for the deed to come into being is for the seller to sign in the presence of a notary public.
Great for real estate attorneys… but is it so great for estate planning attorneys in the face of COVID-19 and everyone having to practice social distancing? No… not really. Here’s three reasons:
In New York, your Last Will and Testament requires the witnessing of a minimum of two disinterested individuals. A notary public could serve as one of the witnesses, but (unlike with the acting notary public) the witnessing cannot be performed remotely.
In New York, your Durable Power of Attorney comes in two parts. The first part is known as the Statutory short Form and is usually sufficient for very basic needs. This is six pages in length and requires just the creator to sign in the presence of a notary public. Hoorah!… however, wait up… For elder law practitioners like myself, that means very little. Why? Because there is a supplemental form that goes with the Statutory Short form called a Gifts Rider. The Gifts Rider is what enables the agent to make gifts of over $500 to others. This is a BIG deal in the world of dealing with government agencies (like Medicaid). Herein lies the problem with EO 202.7. The Gifts Rider can only be executed in the presence of a notary public… and two witnesses! As already mentioned above, a witness cannot act remotely (unlike the notary public!).
In New York, your Health Care Proxy form requires the witnessing of two disinterested witnesses. No need for a notary public. Again, can the witness act remotely? No.
So… what am I doing about it? While this is not an ideal situation there are methods which could be utilized to circumvent the issues presented.
One example, were you aware that in New York a witness need not sign at the same time as the creator of the Last Will and Testament? In fact, the witness has up to thirty days after the original signature of the Will to affix their signature. Creative attorneys are taking the view that they witness the signing of the Will through audio-visual means (thereby respecting the social distancing aspect) and as long as they are told by the creator within the thirty days that the signature is the creator’s, the witness attorney can then affix their signature.
Us estate planning attorneys are still prepared to feed of the scraps of EO 202.7. Real estate work is still a necessary ancillary component of estate planning (I worked on a transfer deed to transfer real estate into a trust just this morning). BUT… what is really required at this moment in time is a change in the rules concerning the execution of estate planning documents. Like with EO 202.7, it can be a temporary measure, until this whole messy COVID-19 situation blows over.
Given the current climate of COVID-19, this is not something that can necessarily wait. People have huge concerns about the ability to execute a Health Care Proxy form which will enable their agent to say “YES” to artificial respiration in the face of an acute illness (like COVID-19). People stuck in locked down nursing homes have huge concerns about how they can appoint an outside agent to pay their bills or make a last-minute gift prior to death. People also have huge concerns that their existing Wills might not necessarily carry out what their current wishes are.
There is a lot of talk between elder law and trust & estates attorneys regarding remote witnessing. It is my understanding that the Executive, here in New York, is considering an Executive Order on remote witnessing addressing the applicable sections of the laws surrounding execution of documents, though I am not sure of exactly when (or if) it will be issued. Until this happens though, attorneys will need to think creatively about how to best navigate the traditional execution formalities of estate planning documents in light of COVID-19.
This is an article written by a trust/estates & elder law attorney licensed to practice law in New York. It is not meant to be a substitute for legal advice. Please see an attorney where you live that is skilled in the areas of wills, trusts and elder law matters if you have any questions, queries or require the assistance of establishing/updating these important documents during these extraordinary and uncertain times.