During the COVID-19 pandemic, the need for estate planning is more crucial than ever. Our trusts and estates attorneys are working remotely and have been able to effectively discuss estate planning matters with our clients via conference calls and video conferences. We have continued to prepare the estate planning documents our clients need to ensure that trusted individuals can make business, financial and health care decisions in the event of incapacity and that our clients’ wishes are followed with respect to the distribution of their property in the event of death.
However, executing these documents has been challenging during the Governor’s “Stay Home, Stay Safe” order because many of the documents, such as wills, durable powers of attorney and patient advocate designations, require witnesses or must be acknowledged before a notary public. Michigan law generally requires these witnesses and the notary public to be “in the presence” of the signatory, and the only guidance on the meaning of “in the presence” strongly suggests that the signatory, witnesses and notary public all must be able to see and directly communicate with each other and exchange documents – an impossible task when we are all being asked to be physically distant from one another.
On April 8, 2020, Governor Whitmer issued Executive Order 2020-41, which allows use of electronic signatures, remote notarization and remote witnessing of documents. This Order permits estate planning and other documents to be signed, witnessed and acknowledged by a notary public and by witnesses via audio-video technologies, such as video conferences, in which the witnesses, notary and signer can simultaneously and concurrently see and hear one another. Executive Order 2020-41 will be in effect and apply to documents signed through May 6, 2020, at 11:59 p.m.
However, the Order contains several specific requirements designed to protect the integrity of the signing process and which must be followed for the remote signing, witnessing and notarization to be valid. These requirements make signing conferences more involved than is typical and, therefore, will not be suitable for all clients. For clients who have COVID-19, who are interacting with those who have COVID-19, who are elderly or in poor health, who are first responders or health care professionals, or who are regularly in contact with the public and therefore feel compelled to sign estate plans, this Executive Order is extremely beneficial.
Members of Warner’s trusts and estates group are available to prepare an estate plan for you, or to discuss your existing estate plan and determine whether your current planning requires amendments or updating, and we can assist with the arrangements for signing these documents.
We especially encourage clients to contact us to update durable powers of attorney or patient advocate designations that are more than five years old in order to minimize the risk that third parties will refuse to accept your agent’s or advocate’s authority to act on your behalf should you become unable to act with respect to your business, financial or health care matters.
For clients whose planning has been in process and is ready for signing, please contact your estate planning attorney to determine whether to sign your estate planning documents using the new procedures approved by the Governor.
For help preparing a new plan, updating an existing plan or signing estate planning documents, please contact your Warner estate planning attorney or either Mark Harder, Chair of the Private Client and Family Office Practice Group or Jennifer Remondino, Chair of the Trusts and Estates Practice Group.
