Trusts and Estates in the Time of Coronavirus

By Brandon Vogel

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The days of an individual signing their power of attorney form with an attorney and two witnesses sitting close by at the same table are over — at least for now.

In the last two weeks, it has been common for estate planners to execute power of attorney forms on the hood of a car with two witnesses standing six feet apart, yet close enough to the signer or to have documents notarized via a Zoom videoconference meeting.

While no two signings are handled the same these days, estate planners across the state agree that there is an increased demand for their services and they have never seen anything like this before.

New cases, new challenges
Elder Law and Special Needs Section Chair Tara Anne Pleat of Clifton Park, partner of Wilcenski & Pleat, has received several calls this past week from current and prior clients who want to finalize or update their estate plans. “I don’t see this slowing down,” said Pleat, who added that many of her clients are now self-referring as “vulnerable individuals.”

Jill Choate Beier of Lake Placid, partner of Beier & Associates and chair of the Trusts and Estates Law Section, has seen an increase in calls ranging from sick clients who want to make changes quickly or clients now scrambling to finish their estate documents. She said that after the September 11th attacks there was a concern over missing wills but that these circumstances are very different for clients.

“The coronavirus has gotten people to think about putting their affairs in order,” said Robert Harper of Uniondale, partner of Farrell Fritz and immediate past chair of the Trusts and Estates Law Section. “We have people reaching out about wills, power of attorney forms and health care proxies. It is an issue on people’s minds.”

Kathryn Grant Madigan of Binghamton, past president of the NYSBA and partner of Levene Gouldin & Thompson, said her firm began remote work last Friday. “We were all very busy right before that, scrambling to get clients in to execute documents,” she said. Madigan is focusing on immediate needs presently. While she has always been available for clients in crisis at any time, she has not experienced clients contacting her at home unless they are in crisis or a loved one has died. She has received numerous calls from families about the visitor restrictions placed on nursing home residents and with concerns about elderly parents who are not self-isolating.

“We are all very leery of attempting to sign anything in person especially given the Governor’s order and the safety of our attorneys and staff,” she said. “However, we all stand ready to meet with a client in crisis to the extent possible, by phone, Zoom or other means.”

She noted that the Family Health Care Decisions Act can be very effective in the absence of a Health Care Proxy, particularly if hospital staff are aware of it and how it works. It often tracks the decision-making pecking order desired by clients, Madigan noted.

Madigan said that Surrogate’s Courts are only accepting essential applications currently. “There will be a massive uptick in filings after this passes,” she said. As well, there will likely be estate planning documents that were not executed correctly, or lacking essential provisions, when done through online DIY services and will need to be corrected in the coming months..

Creative solutions
In the wake of the coronavirus, Governor Andrew Cuomo signed an executive order authorizing notarial act to be performed utilizing audio-video technology such as Skype.

Pleat is gearing up to do her first notarization via Zoom soon. Witnesses will be in different locations and can watch the proceedings on live video. “There is a clear directive on how this has to be done,” said Pleat. “We will do the best we can.”

Ellen Makofsky of Garden City, founder of Makofsky Law Group, has implemented two new strategies for executing documents: videoconferencing and “carefully orchestrated” drive-by signings. She and her team have developed a thorough checklist and step-by-step instructions “for everything we have to do.”

She first spends about 90 minutes or more on the phone with a client to go over all the client’s issues and wishes, which will need to be reflected in the documents, “so I feel completely comfortable in what I’m drafting.” She next sends the client a draft PDF for the client to review followed by a discussion on the phone to confirm the draft reflects the client’s wishes. An appointment is made with the client to execute the documents.

Immediately prior to the scheduled execution, she has a lengthy phone conference with the client to review the document to be signed “paragraph by paragraph.” When that is done and the client has agreed that the document reflects their wishes, she and the client agree to an immediate outdoor meeting at a mutually agreed upon space. Some clients have met sitting in their cars; others have met at a picnic table in their backyard.

Clients are required to bring a pen and hard surface. The masked and gloved attorney and witness will meet the client and tell them where to sign on the stickered and stapled document from six feet away. All the required recitations are made by the attorney and client who then signs it. The client then hands it to the attorney, who can later complete the affidavit.

“This is a unique time” concluded Makofsky.

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