Preparing Wills and Powers of Attorney with Social Distancing


With the global pandemic caused by the Coronavirus, more people have started to face up to their own mortality. Add to the fact that senior citizens have been identified as a sector that is more vulnerable to the virus, then you suddenly have a steep rise in the urgency of preparing for the inevitable.

If you need to accomplish your will or establish a special power of attorney, there are definite challenges since there are requirements for social distancing. Thus, it is a welcome development that Texas Governor Greg Abbott has issued an order that will temporarily permit regular notaries to notarize certain documents through video conference.

Estate Planning Order

One of the orders of the governor is the Estate Planning Order. This order suspends the statutes that require the personal appearance for notarization of the following documents related to estate planning.

  • Self-Proved Will
  • Medical Power of Attorney
  • Durable Power of Attorney
  • The “Living Will” or the Personal Directive to the Physician
  • Oath of the executor/administrator/guardian

The Role of Videoconferencing

In order to execute these documents, they can use the video conference. Most video conference platforms are able to record meetings and conferences, including the video.

In this case, the notary must participate and they must confirm the identity of the signer, both through personal knowledge and a valid, government-issued ID. The presented ID must have the signer’s signature and photo, which will then be the basis for the validity of his signatures.

The signer may transmit the documents bearing his signatures through email or fax, or other electronic means (files can be sent through the chat feature of the video conference platforms). The notary will validate and notarize the documents and they will be transmitted to the signer through similar mediums.

Witnesses

It should be noted that the governor’s order only eliminates the need for personal appearances for notarization. It does not suspend the requirement for witnesses. In that case, there should still be two witnesses present at the signing, and they should also affix their signatures as the witnesses.

The witnesses may be at the same venue as the signer and sign the documents personally, or they could also sign electronically. It would be advisable for them to participate in the video conference.

As the Estate Planning Order was issued in order to address the disaster declaration last March 13, it will remain in effect until the declaration is lifted, or if the Governor decides to terminate it.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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