Ways To Handle Notarizations During Covid 19
Last week in my column I posed the question whether we need legislation to deal with notarization problems during Covid 19. Now, after having seen and reviewed the directive recently issued by Pennsylvania’s Department of State I recognize some progress toward remote notarization has been made. It deals with some electronic notarization questions but not all. Here is the problem and here are some recommendations I would make until final resolution.
First, the problem for financial documents and estates. The Department of State states it this way:
“…Because of the potentially fatal nature of COVID-19, particularly for older persons, trust and estate attorneys have been inundated by requests to provide clients with legal instruments relating to end-of-life planning.Many people are frightened by the prospect of not being able to rely on others to handle their affairs if they become incapacitated.
Yet it is increasingly difficult for attorneys to meet with their clientsMany seniors, and particularly those with medical conditions, are obeying … and are limiting exposure to other people.Some clients are in nursing homes where no visitors are allowed.
Several types of documents used in estate planning require notarization.Some do not require notarization under law, but the best practices of attorneys utilize notarization for these documents…”
The problem is, of course, is that the wishes of a person might not be recognized in the absence of official documents properly executed. For instance, and in particular, handling of accounts, estates, and health care decisions by someone appointed by the person.
The documents listed as requiring notarization are Powers of Attorney, Self-Executing (Self Proving) Wills, and Temporary Guardianship. The documents listed as not requiring notarization but best practices for notarizing are Advance Health Care Directives/Health Care Powers of Attorney, Living Wills and Standby and Temporary Guardianship
So this is the answer so far. The Department of State …received a temporary limited suspension of the Pennsylvania statute which requires physical presence of notaries for all notarial acts relating to a statement or signature on a record…Notaries may use audio-visual communication technology as an alternative to personal appearance…” So, does this solve it? Not completely but there are alternatives. For instance Powers of Attorney also require two witnesses other than the Notary. If the person happens to be at a location where two witnesses are available, this requirement might be handled but if she or he lives alone, maybe not. Also the Notary must also be certified under the Pennsylvania Electronic Notarization Program. Our office is considering this at this time.
In the meanwhile, here are some practical recommendations:
- You do not need to delay in preparing Living Wills, Advance Health Care Directives, and Health Care Powers of Attorney either alone or with an attorney of your choosing through advice through telephone conference or video conference. Our office does handle this kind of thing and, as indicated, you can also do it alone but make sure it accurately reflects your wishes. Note these documents listed do not require notarization (but should be witnessed if at all possible.)
- You can prepare a valid Will without notarization. It can even be handwritten, a so-called holographic Will. However, there are many stumbling blocks. The Will might not state your wishes as intended. You should, in best practices, have witnesses. The self-executing Will (also referred to as “self proving Will) needs two witnesses to indicate they were present at the time. Also realize the Will only covers property titled in your own name that is not jointly owned with right of survivorship or with a beneficiary designation – as with insurance policy beneficiaries and beneficiaries of IRAs and other retirement accounts. So, the answer is you could prepare a Will on your own but, if you do, it would be wise to consult an attorney while doing it (see above re. teleconference or video conference) and when all of this is over, have it thoroughly reviewed in person.
- Finally, for a Power of Attorney, a draft could be better than nothing. Even if it does not pass the remote notarization test a document indicating your wishes could be helpful especially to indicate your wishes if guardianship should be necessary later.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.