The coronavirus lockdown is happening in many states, following the lead of California, Illinois, Florida and New York. Kiplinger’s recent article entitled “How to Get Your Estate Plan Done While Under Coronavirus Quarantine” says that these isolation orders create unique issues with your ability to effectively establish or modify your estate plan.
The core documents for an estate plan are intended to oversee the management and distribution of your assets after you pass or in the event you are incapacitated. Each document has requirements that must be met to be legally effective. Let’s look at some of these documents. Note that there’s proposed federal legislation that would permit remote online notarization, and Illinois and New York have passed orders to allow notarization utilizing audio visual technology. Iowa also has also allowed remote notarization, but you may only utilize certain paid services. As a result, you may find that the cost of this remote notary option is more than you want to spend.
Will. Every state has its own legal requirements for a will to be valid, and most require disinterested witnesses. In Iowa, your will must be signed by you and two witnesses, all in each other’s physical presence. On March 22, 2020, Governor Kim Reynolds issued an executive order allowing for this witness attestation to be done over video conference. It’s an open question whether wills signed this way will be challenged after the fact, so physical presence may still be the best practice. There is no requirement in Iowa that a will be notarized, but they often are in an effort to streamline the process of following the terms of your will when you die.
Power of Attorney. This document designates an individual to make financial decisions regarding your assets and financial responsibilities, if you’re unable to do so. This can include issues regarding retirement benefits, life and medical insurance and the ability to continue payments to persons financially dependent on you. The durable general power of attorney is typically notarized, but it can be valid if witnessed by two individuals.
Advance Health Care Directive. Also called a “living will,” this document states whether you want your life extended by life support systems and if you want extraordinary measures to be taken. It may state that you wish to have a DNR (Do Not resuscitate) in place. A living will is usually notarized, but it also can be valid if witnessed by two individuals.
HIPAA Authorization. Some states have their own medical privacy laws with separate requirements, and most powers of attorney provide that the designated persons can act, if you’re unable to do so. Financial institutions typically require confirming letters from your doctor that you’re unable to act on your own behalf. To be certain that this agent can act on your behalf if needed, they should be given written access to see your medical information.
Because estate planning documents must either be notarized or we’ve created three options for our clients to choose from when it’s time to sign their plan documents: our unique E-PAL Signing, virtual signing, and a self-guided option. E-PAL stands for Estate Planning Airlock, and involves a process that uses a windowed room where our clients can sign documents and we can witness and notarize their signatures in-person without ever being in physical contact. You can learn more about these options and our No-Contact Estate Planning here.
Reference: Kiplinger (March 30, 2020) “How to Get Your Estate Plan Done While Under Coronavirus Quarantine”