When Joel Solomon sold his financial services firm in mid-January, he had been planning to call his estate lawyer to update his will and trusts. But with coronavirus cases spiking, Solomon and his wife, Nancy, decided to act immediately.
“The virus accelerated the need not to wait another week or another day,” said Joel Solomon, 66, who lives in Newport Beach, California. “We wanted to focus on what if both of us were gone tomorrow. There was a real sense of urgency to ensure the documents say what we want them to say,” especially when it came to helping their 3-year-old grandson.
As the deaths from the coronavirus climb, estate planning lawyers said this week that they were noting a rise in calls from new clients and anxious existing ones who wanted to put their end-of-life plans in order. Besides seeking to draft or alter wills and trusts, many clients were changing trustees, executors and the agents they assigned to oversee their finances and health care if they were unable to make decisions themselves.
“It was quiet for a week, and then — oh my God, it was, how will I ever get this all done?” said Colleen Barney, a lawyer in Irvine, California, who represents the Solomons. After the initial shock of the pandemic, people began to focus on their own mortality and their heirs’ security, she said. “People were calling and saying, ‘I think I still have my jerk brother as the trustee. I need to change that.’”
With social distancing the new normal, lawyers said they were conducting client meetings by telephone, Skype, FaceTime or videoconference. But experts’ guidelines to stay six feet away from others are creating unprecedented roadblocks.
While lawyers can draft documents from their own homes, the papers (even those downloaded from online services) generally must be signed by clients, witnesses and notaries. And though laws differ by state, these parties usually must be in the same room for the documents to be legally valid.
New York Gov. Andrew M. Cuomo, in his March 7 executive order declaring New York a disaster emergency, temporarily gave notaries the go-ahead to authenticate documents by videoconference.
A few other states, including Washington, Texas, Florida and Virginia, already allowed remote notarizations. Governors of Connecticut, Iowa and New Hampshire recently issued executive orders to temporarily allow video notarizations. For more information, one resource is the National Notary Association.
Besides needing notarizations, however, wills executed in New York require two witnesses to be present in the room when the document is signed. So does a health care proxy, which appoints an agent to make medical decisions if someone is incapacitated.
On March 25, Ron L. Meyers, an estate planning lawyer in Manhattan, adjusted his practice to the times. From home, he used FaceTime to watch two clients and their witnesses more than 100 miles away sign new financial powers of attorney and health care proxies. He used his laptop to record a video of the proceedings. His clients used their phone.
In New Jersey, where notaries need to be present, Wynne Whitman, an estate planning lawyer with Schenck Price in Florham Park also found a creative way to deal with social distancing. A friend told her that two emergency room nurses, who were single mothers and handling coronavirus cases, had posted a Facebook notice: They had downloaded estate planning documents from an online service and could not find a notary to authenticate their signatures.
All lawyers in New Jersey can act as notaries, and, on March 21, Whitman met the nurses, who had set up a table in the front yard of one of their houses. A rock kept the papers from blowing away. Everyone wore gloves. “It was BYOP — bring your own pen,” she said.
Each nurse acted as the witness for the other, and another friend witnessed both. After one person signed, she stepped away while another moved to the table, Whitman said.
What Documents Do You Need?
Besides creating wills and possibly trusts for more complex estates, lawyers suggest that people draw up a financial power of attorney and an advance directive, which designate agents to make financial and health care decisions while a person is alive, but incapacitated.
“Make sure that the people you have named know what their responsibilities are and send them copies of the documents,” said Rudy Ogburn, an estate planning lawyer in Raleigh, North Carolina.
With the financial power of attorney, the agent makes financial and legal decisions when someone is disabled, even for a short period. Meyers advises clients to choose a durable power of attorney, which takes effect immediately.
During the weeks that a person may be ill with COVID-19, or another incapacitating illness, the agent could file taxes and pay bills, including premiums for long-term-care insurance, which could lapse because of a late payment, Meyers said.
To safeguard against an agent stealing, he said, “Only name someone as an agent you can fully trust.”
Depending on the state, advance directives come in two parts. One directive is a living will, which describes the kind of life-sustaining medical treatment a person would want or not want if terminally ill or with no chance of recovery. The other is a health care proxy, or a medical power of attorney, which names an agent to make medical decisions.
Advance directives typically cover permanent unconsciousness, an irreversible fatal illness, or severe brain damage — all with no expectation a patient would recover and have a meaningful quality of life, Whitman said.
“This is a high standard,” Whitman said. “Ending life-sustaining treatment would require a very dire situation in the opinion of a physician.”
Barney said it was best to name just one person to be a health care agent. “It is very difficult if the doctor needs to talk to two people if they do not act together,” she said. And if someone is drawing up documents now, she said, it may make sense to choose an agent who lives close by, given travel difficulties since the coronavirus began spreading.
Also included in the documents should be a HIPAA medical records release form, which would allow health care providers to provide private information to approved family members, friends and others.
Parents of college-age students and single adults in their 20s should ask their children to sign their own HIPAA release and perhaps an advance directive, lawyers say. Without these documents, once a child turns 18 or 21 (depending on the state), a parent cannot make decisions related to their care and may be unable, depending on a physician’s discretion, to get information on a child’s condition.
Also, it is imperative to review, and perhaps update, beneficiary designations on retirement accounts and life insurance policies, experts say. A beneficiary designation on an IRA or company 401(k), for example, would override any instruction in a will for that asset. “It’s not unusual for someone to fill in a beneficiary on day one of a job and never look at it again,” Meyers said. Holders of accounts and policies should be able to change beneficiaries online.
People who do not have complex estates or the money to spend on costly legal fees can turn to online services such as LegalZoom and Rocket Lawyer, which offer estate planning services at a low cost. As the emergency room nurses in New Jersey found, such services can be particularly helpful for busy health care workers and others who can easily get online access to legal help, experts say.
At LegalZoom, clients can spend anywhere from $35 for a financial power of attorney to $329 for a bundle of documents plus a telephone consultation with a lawyer.
Chas Rampenthal, general counsel of LegalZoom, said young families, besides setting up advance directives and powers of attorney, can use a will to name a guardian for their children in the event both parents die. “It’s important not to leave the decision to people who are not you,” Rampenthal said. “The least selfish thing you can do is to put it in writing now.”
Collecting the Documents
For medical directives in particular, it is important for people and their agents to be able to find the documents in an emergency. Several online sites and apps make this possible.
One option is DocuBank. The service will store advance directives, lists of a patient’s doctors and medications, HIPAA release forms and other health care information. A client carries a wallet card, which includes an identification number a hospital can use to get the documents quickly.
“The challenge with COVID-19 is that hospitals will be overwhelmed,” said Randi Siegel, president of DocuBank. “This helps hospital staff know who to talk to about a person who is admitted and to know what medical conditions the person has.”
People can store a wide range of end-of-life documents and information in one place using Everplans. To create a digital file cabinet, subscribers can upload medical directives, funeral preferences and information on insurance policies, vehicle registration and deeds. The site provides state-by-state estate planning forms and laws and checklists for organizing documents.
A subscriber can assign a “deputy” or two to gain access to the records in an emergency. Users pay $75 a year for the service, which is suspending fees through March for new subscribers.
Besides emergency medical information, estate planning lawyers said people should write a “letter of instruction” to help agents and executors know how to find key documents and key advisers.
The letter should include names of an accountant, estate lawyer and financial adviser. It also should list investment accounts, loans, cemetery plot records, real estate holdings, Social Security numbers and military benefits. And it should also provide the location of birth certificates, deeds, insurance policies and other important documents.
The Solomons are using this housebound time to tell their daughters, 32 and 28, where they can find important papers and advisers’ names and how they want their assets used.
These discussions and updates would have happened at some point, said Nancy Solomon, 65. “It all comes to the forefront of your mind when something like this happens,” she said, referring to the coronavirus. “Safety is foremost in our minds, but also is protecting our children’s future.”