Estate Planning During COVID-19.
In New York, there are four Advance Directives generally in use, the Health Care Proxy, a Living Will, the HIPAA Authorization and the Power of Attorney. All of these documents may still be put in place even though we are not able to meet with clients face to face due to the COVID-19 restrictions on social distancing.
Health Care Proxy. The Health Care Proxy enables you to appoint agents who can communicate healthcare related decisions if you are unable to do so for yourself. This document merely needs to be signed by you and two witnesses. The witnesses can be adult family members who you are not naming as agents.
Living Will. A Living Will may or may not be part of the Health Care Proxy. It is intended to be a statement of your thoughts and desires regarding receiving extraordinary medical treatment simply to prolong life if you are in an otherwise terminal condition. This is not a legally binding document. Most people say that they do not want any extraordinary means used but that they do want maximum pain relief.
HIPAA Authorization. HIPAA is a federal privacy law. You sign HIPAA authorizations every time you go to a doctor. A HIPAA Authorization enables your health care agent, if acting as your agent, to get access to your medical records and to enable the agent to discuss medical billing issues with your health insurance provider.
Power of Attorney. The power of attorney enables you to appoints agents to handle your financial affairs if you become incapacitated and unable to do so for yourself. The form of the New York power of attorney is divided into three sections. In the first section, you appoint the agent and grant powers over specific transactions or broad general power to handle all transactions. The agent must sign in the second section before undertaking to act as agent. The third section is referred to as the Gifts Rider and grants the agent specified powers to make gifts of your property with appropriate limitations.
The first and second sections merely require a notarized signature. The Gifts Rider requires the signature of the principal to be notarized and the signature of two (2) witnesses.
Governor Cuomo signed Executive Order 202.7 authorizing New York notary publics to notarize documents utilizing audio-video technology. Since that Order was issued, we have used Facetime and Zoom with clients to conduct meetings and notarize signatures. There are rules to follow that the notary public will be familiar with.
Last Will and Testament. Your will sets forth instructions regarding who gets your property upon death and identifies the persons who will act as executors, guardians and trustees.
In New York, there are certain formal requirements for the execution of a will. They are relatively easy to satisfy. The person signing the will is called the “testator.” The testator must (1) sign the document at the end and (2) acknowledge his or her signature to two (2) witnesses. The two witnesses must also sign their names and write their addresses on the will. Although most of the time the testator, witnesses and attorney draftsperson are all together when the will is signed, this gathering is not necessary (and currently, not a good idea). The testator may sign the document in one place, and then acknowledge his or her signature to each of the attesting witnesses separately.
Since Executive Order 202.7 only dealt with notarizations, and did not cover will signings, two weeks ago we hit the road and began supervising the execution of wills somewhat differently and with virtually no contact with the client.
Last week, however, the Governor signed a new order, Executive Order 202.14, which now authorizes the witnessing of wills by video conference as well. Skype, Zoom and FaceTime are now part of our estate planning toolbox.
Probate. If a person dies leaving a will, the will has to be filed for probate with the Surrogate’s Court. Probate is the process by which a court declares the document to be the valid last will of the person signing it. It is important to note that currently, the courts are closed, and it is not possible to file a will for probate. These delays could last many months, and if a client has assets or accounts that are just in the client’s name, the spouse or other family members will not have access to those assets or accounts.
Alternatives to Probate. We are advising clients to either (1) fund a revocable trust previously created, which will give named successor trustees access to assets and accounts, (2) prepare and sign a new revocable trust, and/or (3) at the very least, add additional signatories to their bank and brokerage accounts, so that in the case of an untimely death, family members would have immediate access to those accounts.
If you would like to further discuss your estate planning, or any of the topics discussed above, please do not hesitate to send us an email.
In the meantime, keep your distance, keep your family safe, and keep smiling. We will get through this.
Greg Pond is a Partner in the Trusts and Estates Group at Certilman Balin.
Lisa Hunter is a Partner in the Trusts and Estates and Elder Law Groups at Certilman Balin.
Donna Turetsky is a Partner in the Trusts and Estates and Elder Law Groups at Certilman Balin.
Sandra Pendrick is Of Counsel to the Trusts and Estates Group at Certilman Balin.
Steven Sulsky is Of Counsel to the Trusts and Estates and Elder Law Groups at Certilman Balin.