Estate Planning and Elder Law in the Age of COVID-19

By David Kubikian, Esq., Herzog Law Firm P.C.

When did COVID-19 first enter your radar as something that would change our lives? Was it news about South Korea? Italy? Was it when Tom Hanks announced he had contracted the coronavirus? Or when every sport suspended its season? For estate planning attorneys, who by nature contemplate the future more than most, the radar had a blip in early February. It is about then that the casual conversations we normally have with clients prior to the serious business of estate and elder planning began to change. Conversations about their recent trips or future travel plans included some reference to that “virus thing”.

Pandemic Life Adjustment

A few weeks of government directives for closures and social distancing later, we are adjusting to pandemic life. Thankfully, food and supplies are available in local grocery stores and supermarkets. The banks and postal service are still running. And of course, the internet still works. Thank goodness for that. Internet means access to digital newspapers. Internet means lots of social media (the good and the bad). And for the world of estate planning and elder law, the internet means that the business of helping clients can continue.

Stay Home

In the age of COVID-19, it is simply not a good idea to be across the table from anyone except your family at dinner. Handshakes are forbidden and a random sneeze or cough in a supermarket will lead to people choosing to skip that aisle all together. But what if you need to create or update an estate plan? What if you lack the basic fundamental must-have documents like a health care proxy or power of attorney? What if you want to start your long term care plan now and don’t want to wait 6 months before getting the “5 year lookback” to start ticking? How do you go about meeting with an attorney and starting the process. Better yet, how, where, when and in front of whom do you sign your documents?

Maintaining Attorney / Client Connection

The answer starts with the internet and your phone. In-person consults have turned into phone conferences or better yet, video conferences through applications such as Zoom (one of the only winners from the pandemic). It is not the traditional face to face meeting but our office has still been able to create the important attorney/client connection. Perhaps it even helps focus conversations on the facts that the client presents once the small talk ends. The goal of an estate planning attorney is to not just hear a client’s story, it is to hear the WHOLE story, warts and all. The best legal diagnosis only comes with the entirety of the legal facts. The COVID-19 virus has not and will not prevent that all-too-important initial client meeting or any follow up calls and discussions.

Estate and Elder Law firms remain open to some degree with most operations having the majority of staff working remotely and a skeleton crew working to keep logistics in place. Documents get drafted in the case of estate planning and for elder law, we are still helping our clients get nursing home or home-care coverage from the Medicaid program. Thankfully the internet has made most aspects of estate planning and elder law business as usual. However, eventually clients need to sign their important legal documents and that, in a word, has been challenging.

Meeting Your Legal Needs

Whether it is a health care proxy or a will or a trust, witnesses or notaries (and sometimes both) are required under New York law. How does one go about witnessing a document without being in the room? How does a notary legally apply their stamp to a page without having the signor present themselves to the notary? Those are excellent questions which New York State has considered. In recent weeks, they have enacted guidelines for notarizing via video. The guidelines provide a lengthy checklist for notarizations to be valid but nonetheless, your important legal documents can be notarized. Witnessing a will is a bit more tricky but our profession is nothing if not creative. Our firm and many colleagues have implemented video conference procedures for document signings for certain documents as well as signing of critical documents in open air spaces with a well-choreographed procedure to prevent exposure to client or attorney. This includes but is not limited to clients using their own pens, appropriate physical distancing, and a safe post-signing document detoxification (for lack of a better word) and perhaps the most important, a pre-signing phone conference to explain documents to the client so the actual signing is shorter.

Our profession and our firm is committed to continuing to help our clients in their hour, days, weeks or months of need. Thankfully our state has provided guidance that will allow important documents to be signed and notarized. The fact is that the pandemic did not eliminate dementia or incapacity, death or family conflict and because those parts of life (and death) still exist, we need to accommodate our clients as best we can.