Safely Executing Clients' Estate Plans During COVID

Attorney Doris Gelbman assists a client with a document execution.  Photo: Megan Flowers

As the COVID-19 pandemic continues to spread through the country, more people are realizing the importance of getting their estate planning documents in order. Those over age 60 are particularly at risk for developing complications from the novel coronavirus infection. Having in place documents — including a durable power of attorney, a health care proxy, a medical directive, a HIPAA release and a will — is essential in the event that illness strikes.

Although planning one’s estate is a top priority, people don’t want to put themselves or others at risk while doing it. Elder law and estate planning firms across the U.S. are well aware of this concern – both for their clients and their own staff — and have devised creative solutions for clients to execute their documents while limiting or eliminating contact between participants. Strategies include the drive-up solution, taking special precautions with office meetings, and (in some states) executing the documents remotely.

The Drive-Up Solution

This method involves all parties driving to a parking area – perhaps a lot adjacent to the attorney’s office, the client’s driveway, or an assisted living facility parking lot. At a minimum, the attorney and client will need to be present, although witnesses and/or a notary may also be required, depending on the document being executed and state law. One person, usually a law firm staff member, takes documents from car to car so the parties can roll down their windows and sign with minimal contact. Everyone can bring antibacterial wipes with them to clean their hands after the document execution has been completed. It’s unorthodox but it works and keeps everyone safe.

The Charlottesville, Virginia, firm of Gelbman Law PLLC has started using the drive-up approach for signings (see photo).  In Virginia, a will must be notarized and witnessed by two individuals, which could make for a crowded and unsafe condition if the signing is done indoors.

“We started thinking about how we could safely accommodate our clients, who are almost all elderly and at greater risk, and so the idea of drive-up will signings seemed like the safest move,” firm principal Doris Gelbman told The Daily Progress, a local newspaper. “I would say that, uniformly, our clients have been appreciative that we’re taking these safety measures.”

It's also possible to employ the drive-up method without an intermediary shepherding documents between vehicles.  Patricia D’Agostino of the Massachusetts elder law firm of Margolis & Bloom described in a recent firm blog post the three-car process she used for a signing that required witnesses and a notary:

I served the notary from my car, [the two witnesses] were witnessing from their car and the client was in his car in the middle. We were all on our conference line to communicate. The client showed me his driver's license through the car window. We had already sent the original documents to the client by Federal Express and I had copies. After the client signed the documents, he placed them outside of his car and when he was back in his car, I got out and put them in my backseat. I’ll leave them there for a few days to be safe before we process them. Since our understanding is that the coronavirus dies out on all surfaces within three days, [the witnesses] will be able to witness the documents and I will be able to notarize them at a later date.

Some firms are using still another variation of the car method: the attorney drives to the clients’ house and from the car witnesses them signing the documents on their porch.

Meeting at the Office

In cases where the physical law office remains fully or partially open, some firms are executing documents in the office but taking precautions to social distance and to make the process go quickly.

The firm may use a large conference room – or perhaps several separate rooms – to prevent close contact between the parties. All surfaces are thoroughly sanitized, pens not shared, and careful hand-washing encouraged both before and after the document execution process. Gloves may be used by everyone to avoid contact.

Many firms spread out appointment times – perhaps even scheduling them in the evening or on weekends – to keep the number of people in the office at one time to a minimum. Key to safe in-office signings is for the clients to review the documents thoroughly and communicate any concerns by phone or video conference before physically meeting so the document execution can be completed as quickly as possible.

Virtual Solutions

Like everything else these days – work, schools, doctor visits, birthday parties, and more – document execution is also going digital during the COVID-19 crisis. Details of elder law and estate planning documents can be worked out over the phone or through video conference calls or email exchanges. When everything has been prepared successfully, the actual document execution may be able to take place online. In some states, such as Florida, legislation has already been enacted to allow parties to conduct document executions virtually through Zoom, Google Duo, or other virtual platforms. In the wake of the pandemic, New York State now allows for video notarization. A number of other state legislatures are moving towards passing similar temporary laws so that clients can seamlessly execute their estate planning or other documents without endangering themselves or their attorneys.

Allaying Fears

No one wants to think about death or incapacity, and people come up with many reasons to put off planning their estates.  But in this unprecedented health crisis, worries about the safety of executing essential documents should not be a factor in the decision.