By D Carter  |  The Daily Record  |  April 13, 2020

Estate planning and health care proxies require special methods during pandemic

Sharon Wick, an attorney with Phillips Lytle LLP, carried out the witnessing of a will last week in a client’s garage in Erie County.

Maintaining the appropriate distance to avoid the potential spread of the COVID-19, Wick and her client, along with a witness Wick brought, kept on opposite sides of the garage. Using the lid of a car trunk as a table, they passed the documents back and forth. Instead of sharing a pen that Wick normally provides at such times, each person provided their own pen. 

Such convolutions may be more and more necessary as the current pandemic stretches on and as thoughts of mortality send some clients figuratively running to their legal advisers to settle their affairs. 

“We’re seeing a fair amount of activity,” Wick said, “from people reaching out who are either mid-way in the process and wanting to speed it up, or those who just want to review, to those who never did their planning at all.”

Some of the increase in business is related to health concerns, Wick surmised, while some may be coming from people having more time on their hands than usual and wanting to use it to finally square away estate plans. 

In this pandemic era, technology can ease the logistics, but Wick said lawyers need to plan those logistics in advance to make sure that the client, a witness not related to the client, and the attorney all have the technological means to witness and sign documents in ways that meet new guidelines the state has issued for remote legal procedures. 

“The pre-planning for the execution really has to be worked through,” Wick said. “The logistics have to be taken care of in advance.” 

An executive order by Gov. Andrew M. Cuomo sets out these guidelines — through May 7 — for remote estate planning, as recently summarized in an educational article by Woods Oviatt Gilman LLP: 

  • The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) 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 witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
  • The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
  • The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
  • The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.

While technology makes all this possible, Wick said, some elderly clients are not facile with the technology, making transmission of documents by scan or email difficult or impossible for them. As a result, she’s planning this week to drive to a client’s home and conduct the meeting by video phone in her car, bringing a family member to be a witness, and dropping off papers on a porch or in a driveway for actually signing. 

Wick said attorneys also make sure to alter their standard Proof of Will document — a separate document attesting to the way the will was signed — to make sure it reflects the way the will was witnessed and signed in accordance with new guidelines. Typically they use a document with boiiler-plate wording that indicates the parties and witnesses are in the same place at one time. In reality, they might be in three locations. 

With the possibility of illness caused by COVID-19, including the eventual use of a ventilator, clients may want to give some thought to additional legal documents, Wick and Woods Oviatt recommended. 

“This is an unfortunate, yet sobering, reality.  It is vital to ensure that you have designated a durable Power of Attorney and a Living Will/Health Care Proxy to assist with your financial and health care matters, respectively, during your lifetime,” read Woods Oviatt’s article, anticipating the need for estate-planning information because of the pandemic. Wick also suggested designating a person charged with decisions about your remains, such as whether you will be buried or cremated. 

The Health Care Proxy determines who can make medical decisions, while the Living Will indicates how you’d like those decisions to be made. If no special indications are included in the Living Will, health care professionals will use whatever means necessary to keep you alive, she noted. If a patient would prefer not to go on a ventilator, that needs to be spelled out in the Living Will. 

“The default is the medical field will take measures to sustain your life,” Wick said. 

Regardless of the pandemic, much of the standard advice on wills and health care proxies remains. 

“It’s always better to specify your wishes in legal documents you have thought through and prepared,” Wick said. 

For a will to reflect the client’s wishes, the client needs to share with the attorney information that has a bearing on the execution of the will but might be uncomfortable to share. Examples might be the existence of a child born out of wedlock, or needs for special considerations for a disabled heir. “The client should know that all communications with an attorney are confidential,” she said. 

Outside of the legal documents, clients should maintain records on their assets and keep them in a place accessible by an executor. These might include contact information for life insurance, bank accounts, and legal information. While this information might have been some papers and pass books kept in a lock box in the past, the information might be digital now. It should include online IDs, passwords and account numbers.

Wick said the attorney who will execute the will doesn’t need an annual update as long as the client updates this information that eventually can be accessed by the executor.