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Estate Planning Commences Virtually Amongst The Pandemic.

woman virtually planning on computer with mask on.
In the past few weeks, an escalating number of clients have hurried to meet by videoconference and phone.

"Mortality is on the front of their minds,” Rubin, an estate lawyer  said. “Spurred by the coronavirus pandemic, clients who I haven't heard from in 10 or 15 years, as well as prospective new clients, have been reaching out to update their existing estate planning documents, or write new ones. It's been pretty unusual to get this many requests. And they want to move quickly.”

Little wonder that fear of COVID-19, has numerous people writing wills and making critical estate planning decisions about who will be in charge of their medical care and finances if they're ill and incapacitated.

Some 52 percent of people age 55-plus don't have a will or the other key estate planning documents that you might need during the pandemic.

Making a will — virtually

With most states imposing stay-at-home orders and strict social distancing mandates, the mechanics of executing these legally binding documents is requiring some virtual interaction.

That's because in most states these important documents require adult (18 or older) witnesses and notarization, a procedure that generally takes place in person and with signatures in front of a notary to be valid.

Some states require witnesses who are “disinterested parties,” meaning they aren't in line to inherit anything. Not easy to do when you're probably hunkered down at home with members of your family to prevent the spread of the virus.

On April 7, New York Gov. Andrew Cuomo issued an executive order permitting remote witnessing of wills, powers of attorney, health care proxies, deeds and other documents. He had previously issued an order permitting video notarization, allowing New York residents who wish to execute new or updated wills, health care proxies or powers of attorney to do so without leaving home or admitting others to their home, provided they follow specific conditions, such as requiring that the videoconference be a direct communication between the person signing, the witnesses and the supervising attorney.

The virtual estate consultation

Today, estate lawyers are connecting with clients via videoconference services like Zoom or Skype. The basic estate documents clients typically want to review: a will to legally name who should inherit their property; a durable financial power of attorney that assigns another person to make financial decisions for them if they're incapacitated; a health care power of attorney, along with a living will, to allow a specified individual to make health care decisions for them if they can't do so for themselves; and the HIPAA authorization form to consent for someone else to access medical information from a health care provider. 

5 key estate planning documents

These are the five essential estate planning documents to have in place during the pandemic. To get details on where your state stands on requirements for witnesses and how to use online notarization, consult an estate planning lawyer, or contact your secretary of state's office, which is in charge of regulating notaries in most states.

  1. Will: This is a legal document that directs the distribution of your assets after death and can appoint guardians for minor children. If you die without a will, your state's laws decide who gets your assets and other property. Many states require two witnesses to watch you sign and date the will and then sign as witnesses. Usually one of the witnesses can be the lawyer who drafted the will. Most states do not allow beneficiaries under the will to be witnesses.
  2. Health care durable power of attorney: A durable power of attorney for health care, or health care proxy, is a good supplement to a living will. It permits you to name someone to make health care decisions for you if you are incapacitated in some way (say, in a coma) but still alive. There is no reason you can't have both a living will and a durable power of attorney, and, in fact, you probably should have both. In some states you'll automatically get both, because the two are merged into a document called an advance directive. Typically, you would ask a friend or close relative to take on this responsibility. Be sure that you have discussed it with them and that they have agreed to do so ahead of time. Make sure people you pick as your proxies have a copy. In most states, the document must be signed, dated and notarized. Having it signed by an adult witness isn't usually required, but is recommended.
  3. Living will: A living will, sometimes called an advance care directive, is a sort of hybrid will that outlines the kind of medical care you want if you are terminally ill. For example, if you don't want to be kept alive on life-support systems, such as a respirator or feeding tube, you can make that known. (As morbid as it may seem, this could save your family a substantial sum in medical bills.) You can include instructions for organ donation. For a living will to be valid, it typically must be witnessed by two adults, and they usually can't be members of your family or your attending physicians. Depending on your state, you'll need to sign the document in front of witnesses, a notary or both.
  4. Durable power of attorney for finances: A financial power of attorney is a document that gives someone the authority to handle financial transactions on your behalf. It's designed to let someone else manage all of your financial affairs for you if you become incapacitated. In some states you simply sign the document in front of a notary; others require witnesses to sign as well.
  5. HIPAA authorization: The federal Health Insurance Affordability and Accountability Act set privacy rules for patient records; a release document for records is generally executed along with estate planning documents. It allows you to name people to be treated with the same rights you have regarding disclosure of medical records. Typically, this includes your spouse, children or other close relatives, so that these family members can communicate with doctors and nurses and find out how you're doing if you're hospitalized.


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