Do we need legislation for powers of attorney during the coronavirus?

Almost exactly a year ago I wrote a column for publication on April 2, 2019 in this newspaper titled “Will your bank honor your power of attorney?” If that one did not raise enough thought-provoking questions, now in the middle of a global pandemic the question could be rephrased: “How can you lawfully execute a power of attorney during quarantine without a notary physically present and possibly without qualified witnesses in the room?”

The notary presence is key. There have been various answers suggested but probably the best answer would be emergency state legislation as in other fields to allow remote notarization. This is why.

Almost everyone knows by now they should not venture out unless seriously necessary. We know, too, to practice social distancing and keep six feet apart from each other. On the positive side, much legal business can be handled remotely by videoconferencing, zoom, scanning and sending documents, email and other electronic means. However, the search to comply with the law and at the same time obtain a valid power of attorney is elusive. The most significant difficulty with compliance is the notarization requirement.

You might remember that your Aunt Mildred or your daughter or your spouse told you years ago to get a power of attorney in case you cannot handle some business matters yourself. Now, if you are sick or disabled and need someone to execute documents or discuss matters regarding finances you might wish you had done so.

This is what makes a financial power of attorney special. Compared to other documents, under Pennsylvania law you might, if you have to, execute a health care power or advanced directive or even a will without actually having your signature notarized although they should be

witnessed. (If you should decide to do this now, seriously consider having it reviewed by an experienced elder law or estate planning attorney later to make certain it reflects what you really want. You do not want problems later.) But a financial power of attorney under Pennsylvania law and under law in many states, requires a notary and, by definition, a notary needs to be there. Some states, however, have laws permitting remote notarization where the notary sees the document being executed remotely through, for example, videoconferencing, but is not actually in the same room.

If your attorney is an elder law or estate planning attorney devoted to finding answers as our office is, she or he is probably scratching her/his head about now and, when confronting the notarization issue, sharing proposed answers by email, listservs and teleconferences. Organizations to which I belong, both the National Academy of Elder Law Attorneys (NAELA) and its Pennsylvania associated organization, Pennsylvania Association of Elder Law Attorneys (PAELA) are sharing observations on their respective listservs.

Here are some of the suggested answers. Without suggesting that any one or more of these might be an answer, it can give an idea regarding the concerns. First, drive to a parking lot location where a document already prepared can be handed through the window with the notary standing outside. The document could be prepared and provided electronically in advanced. This, however, may very well violate the prohibition against leaving home. Another, execute the document with witnesses and depend on a court at a later date to uphold it. This, naturally, is risky. Third, use a notary from another state where remote notarization is recognized and use a person certified as a remote notary. The problem is, that the person is not actually present here and remote notarization is not recognized in Pennsylvania. It might not be recognized. Whatever the answer is, legislation might provide the key and there have been proposals in many states including Pennsylvania to deal with emergencies and provide flexibility. It seems that here, as in other areas, flexibility is needed to deal with specific problems. In the meanwhile clients will depend on the problem solving tendencies of professionals including attorneys and others to deal with the immediate issues at hand.

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.