The Corona virus COVID-19 Pandemic has forced many of us to confront our own mortality in a vacuum, dealing with isolation and imagining the worst-case scenario of what life may present to each of us. Sadly, this is our current reality and we are forced to make monumental decisions without the luxury of time for preparation. Estate planning during the Coronavirus should not be put on the back-burner or something you’ll do when the time comes because that time has arrived.
A bare-bones estate plan should include three documents: a will, a power of attorney and a health care proxy.
A will in New York must be published to two witnesses. The law requires those witnesses both be present in the room when the testator/testatrix (person whose will it is) declares that this is his/her will and signs it in front of the witnesses who must then also sign it. Ideally, those witnesses should not be the person named as the executor/executrix (person named to handle your affairs after your death), nor should the witnesses be a beneficiary named in the will. The witnesses should also provide an affidavit that declares they were both present and watched the testator/testatrix publish and sign the will.
A New York power of attorney allows someone you appoint to act in your place as your agent. You may limit what they can do for you or give them broad powers to act in your place in all situations. In New York, the power of attorney must be signed in front of a notary (“notarized”). Your agent’s signature must also be notarized for them to be empowered to act for you.
A New York health care proxy allows someone (“health care agent”) to make health care decisions on your behalf when you cannot make such decisions for yourself. While an attorney can address your specific concerns and draft the document accordingly, many hospitals have health care proxy forms which a patient can sign upon being admitted to a hospital. In New York, a healthy care proxy form also includes living will language (“end of life wishes”) in the same document. Additionally, it should but does not always include language relating to HIPAA (“Health Insurance Portability and Accounting Act”). The reason that it is important to include the HIPAA language is to allow your health care agent access to your medical records and contact your health care providers. The health care proxy form only requires that your signature be witnessed by two adults but does not require a notary. Again, the witnesses should not be the person you name as your health care agent.
So, where does that leave us in getting these essential documents signed during a pandemic amid the parameters of social distancing? Governor Cuomo amended the witness requirements to a degree (click here for the entire order) through May 7, 2020. Basically, a notary must watch you sign the documents by video which can be accomplished through an app on your phone or laptop. You must affirm to him/her that you are located in New York at the time of the video conference. You must then fax/email the signed document to the attorney for them to notarize the copy. They will fax/email the notarized copy back to you. This is only a valid document if you then mail the original plus the notarized copy back to the attorney who must then notarize the original within thirty (30) days of the date you signed. It sounds complicated but it can work.
As to executing a will, the new EO 202.14 appears to address that issue in that the testator may acknowledge to two witnesses separately that the document is his will and that it is his signature. The testator must then fax/email a copy of the signature page to each witness on the date he signs it. Each witness may sign that copied page as a witness and then do so again signing the original within 30 days of the testator signing the original. All of this must take place via video conferencing or a video app which allows for interaction between the testator, witnesses and the supervising attorney, if applicable.
At a bare minimum, you should consider executing a power of attorney and a health care proxy now and prepare to execute a will as soon as possible once the stay at home order is lifted in New York. If you die without a validly executed will in place, the intestacy laws of New York will apply.
Please keep in mind that if you have previously executed your estate documents in New York and now find yourself relocated or quarantined in a different state, a validly executed will in New York is honored by other states in the United States.
Estate planning documents are essential and critical to execute and should be done with the assistance of an attorney to guide you through the process.