Ways to handle notarizations during coronavirus
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 clients. Many 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.
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 audiovisual 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. 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
Janet Colliton, Esq. is a Certified Elder Law Attorney and limits her practice to elder law, retirement and estate planning, Medicaid, Medicare, life care and special needs at 790 East Market St., Suite 250, West Chester, Pa., 19382, 610-436-6674, colliton@ collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, cofounder of Life Transition Services LLC, a service for families with long term care needs. Tune in on Wednesdays at 4 p.m. to radio WCHE 1520, “50+ Planning Ahead,” with Janet Colliton, Colliton Elder Law Associates, and Phil McFadden, Home Instead Senior Care.