How to Sign Powers of Attorney During a Pandemic…

To our clients, colleagues, and friends: We are still open for business–virtually!

We’re all concerned about the Coronavirus and how it will affect us, our family, community, nation, and world. Our highest priority is the health of our employees and our clients. We are still available despite the fact that our office is physically closed.

If you have any questions about your estate planning, we’re here. We have remote capability so we can meet by web conference— or even discuss things over the plain old telephone. Feel free to call.  If we are unavailable, just leave a message and we’ll get back to you.  In these uncertain times, we will continue to do our best to meet your needs.

Together, we can get through this.  Thank you.

Law Offices of MJ Miller

Dear Mr. Miller:

I’m in a panic. My Dad is in a nursing home; I used to visit him often but now I can’t do that. The facility is pretty much locked down now for visitors. So we talk and Face Time on the phone and computer each day. In the last few days he has been getting more depressed and, yes, I’m going to say it, panicked.

He had pulled a health care directive and power of attorney for assets off the internet. Got it just like he wanted it but now how does he get it signed and activated. No one can get into the facility–so now what?

Equally Panicked Daughter

Do it Yourself Documents–Foolhardy
Documents Require Notarization and Witnessing
Accessing a Locked Down Facility
Mobile Notary
Wills Without Witnesses
Video Notarization
New York Solution
Call for Help

Dear Equally;

The pandemic has made this extremely trying times. Many older Americans are thinking in these terms right now. Maybe a bit of an overreaction, maybe not. Personally, I think that it won’t be long until surgical masks and ventilators start flowing out in quantity. And that will make things much better. If we can just “flatten the curve” until then things will look brighter.

Do it Yourself Documents–Foolhardy: First, I have said over and over again that documents pulled off the internet typically won’t do the job. Here’s a recent article of mine on that subject.
It is generally foolish at best and a financial disaster at worst to try this approach.

Documents Require Notarization and Witnessing: Further, it turns out that in California many legal documents need to be notarized or witnessed. Powers of Attorney and Health Care Directives can generally be done in either manner. Deeds, in almost all cases, have to be notarized in order for the County Recorder to accept them. Most Wills have to be witnessed. Many other documents required by financial institutions have to be notarized. So that creates a problem in nursing home facilities that are locked down or lawyer offices from which everyone is now working remotely pursuant to the Governor’s “stay at home” order issued last week.

Accessing a Locked Down FacilityI have read of attorneys not being able to see their clients who reside in facilities but, in most of those cases, the facility made special arrangements for the attorney and client to meet in a private, isolated office. That was last week; would it be the same now? And, I’m sure every facility is different. Nevertheless, it is possible that two of the facility’s staff would act as witnesses. See my comments below as to how an attorney’s office, such as ours, could coordinate all of that.

Mobile Notary: What if you are living at home; would that make a difference. Maybe. There is a creature knows as a “mobile notary.” They are easily found by using the search term “mobile notary” on the internet. If one calls enough of them, I suppose at least one could be found who would come out to the house. They charge the regular fee for notarization plus a travel fee which, during this period, might be substantial. Whether in a facility or at home, we could preside over the signing by video conference so that we could see your Dad and the Notary. That is not necessarily something that is novel to us as we have done this on several occasions for varying reasons.

Wills Without Witnesses: So what about a Will that needs two witnesses? There are Wills that do not need witnesses–holographic Wills, but they have requirements all their own. Fortunately, your Dad is not involved with a Will.

Video Notarization: So what’s the real answer here? Video notarization and Will witnessing. Unfortunately, California does not allow that. Here’s the California Secretary of State’s 2016 scam alert on that issue.
The reasoning is that the signer has to be physically present in front of the Notary and sign in the Notary’s journal. Sometimes, the Notary must take a thumb print. Obviously, this is impossible in a video conference situation.

New York Solution: But all is not lost. It turns out that at least one other state, New York, has solved the problem by a Governor’s emergency order authorizing video notarization.

Call for Help: I just sent a comment to Governor Newsom via his website alerting him to the problem and requesting that he look into that solution. Meanwhile, my Law Office is operational by phone and web conference. Call us at 760-436-8832 so that we may discuss how we might resolve your Dad’s situation.