BY MELODY BREEDEN
The COVID-19 pandemic has created a number of challenges for estate planning attorneys. Estate planning is normally very client-centered, with in-person office conferences to go over the client’s objectives and assets and make an initial assessment about the individual’s capacity to execute estate planning documents. There are subsequent in-person meetings to go over and ultimately execute the documents. Due to age and underlying medical conditions, many estate planning clients are in the high-risk categories for becoming severely ill after exposure to COVID-19 and have been instructed to self-isolate. Some clients may be in hospitals, nursing homes, assisted living facilities, or other retirement communities that have not allowed visitors during the pandemic. Additionally, many law firms have been working remotely during the pandemic
Continuing client meetings
Many office conferences have shifted to phone conferences and video conferences during the pandemic. While these are helpful, they do not replace in-person meetings. Many of the elderly and vulnerable don’t have access to or aren’t familiar with technology. They may not be comfortable with or even own a computer. I have clients who do not even like to leave voicemails or have not set up voicemail on their phones. These are not the clients that are going to embrace technology and video conference with an estate planning attorney. In fact, none of my clients have chosen the option of a video conference over a phone conference or in-person office conference.
The South Carolina Probate Code requires that every will shall be in writing, signed by the testator (or signed in the testator’s presence at the testator’s direction) and at least two individuals, each of whom witnessed the signing or the testator’s acknowledgement. This requires physical presence with the testator and the witnesses. For a will to be self-proven, which most wills are to prevent witnesses from being called into court to testify after the testator dies, there is specific language required, along with a notary.
Although trusts are generally not required to be in writing, they are typically executed with the same formalities as wills and at the same time. Therefore, for practical purposes, the same obstacles are in place for clients who wish to set up trusts. Health care powers of attorney and durable powers of attorney also require physical presence for witnessing.
Aside from the few exceptions that currently exist for remote notarization as set forth in the South Carolina Supreme Court Order Regarding Operation of Trial Courts During the Coronavirus Emergency, notarization in South Carolina requires physical presence of the notary, the individual signing and the witnesses. Many states have issued executive orders or temporary emergency legislation in an effort to bypass the physical presence requirement for wills and many other estate planning documents, but South Carolina has not.
Creative communication with clients
During the pandemic, estate planning attorneys have had to use creative ways to communicate with clients and work within our statutes. I have sent more documents to clients during the pandemic with draft marked through them than I have in the past. For clients that use email, drafts were sent with watermarks in a format the client could not change. Much of our communication regarding the draft can also be done via email. For clients without access to email, drafts were sent by US Mail and then a phone conference was scheduled to thoroughly go over the drafts.
Once all parties are satisfied with the drafts, an in-person signing was scheduled outside of my office at a card table. The documents were presented to the client to sign and they were given the opportunity to ask any additional questions. Everything was sanitized before and after the signing. The client would bring his or her own pen or be given a pen to keep. My legal assistant would stand outside with me, but at a distance, to watch the client sign the documents. For clients who had additional questions but preferred not to discuss on the phone, this would also be done outside. Most all parties were wearing masks and/or gloves.
As we transition back to work and are able to hold client meetings inside the office, the procedure for signing documents will remain the same to include cleaning before and after the client is in the room. There are no handshakes or hugs from clients, and they will continue to have the option to sign outside if they aren’t comfortable coming into the office. Some attorneys are using clipboards for signing and taking them to the clients’ cars to pass them through the car window. I have also heard of attorneys signing through clear glass or plastic windows.
Delays due to office and court closures
New client appointments and in-person appointments have been delayed. Some are slowly beginning to resume, with individuals coming into the office in masks and some with gloves. Everyone is still exercising social distancing, which is difficult during the estate planning process. It is my practice not to have estate planning documents I drafted executed outside of my presence or outside the presence of a lawyer who I have confidence in who can explain the documents to the clients and oversee the execution process. I consider it part of my engagement as an estate planning attorney to oversee the execution of the estate planning documents my clients have engaged me to prepare and assess their capacity at the time of execution.
Many filings have been delayed with the courts not being open to the public. There is no electronic filing in probate courts in South Carolina. With courthouses closed to the public, it has made it difficult to process estate matters for clients who may have lost a loved one during the pandemic. Everything is taking longer, including accessing banks since most banks only have their drive-through open. Many individuals need to begin the probate process in order to complete their own estate planning. All of these factors have presented many obstacles, and we have had to get creative in order to meet our client’s needs.
Is technology the best option?
While many are quick to embrace the use of technology as a means to bypass the physical presence requirements, there is much to consider. Since many of the individuals that need these documents are not currently using or familiar with technology, there is danger for abuse.
If the vulnerable individual doesn’t own a computer or a device for videoconferencing or emailing, they will not be the one initiating the video conference or email. It is difficult, if not impossible, to know whether or not someone is being coached or prompted on the phone or during a video conference. For example, I recently had a phone conference with a client, and I did not know that anyone else was in the room with the client until halfway through the conversation. It is difficult to know if that individual was prompting the individual what to say or what to ask.
Also, what about clients with hearing, speech, or visual impairments? How can we effectively communicate with them via telephone or videoconference? You can’t see the subtle expressions on someone’s face or their body language on a video or phone conference. You can’t adequately assess a vulnerable client’s capacity to understand what you are trying to explain. You can’t assess whether someone is being coached or influenced by someone else in the room. If someone has diminished capacity, no matter what age, it will likely be more evident in an in-person office conference than on the phone or on a video conference.
As we move forward, we will continue to utilize technology and see a push from many to have it replace in-person meetings. While we look to protect those vulnerable to abuse and exposure to illness, we must work to find ways to ensure we are meeting our clients’ needs while protecting them from harm. In my 18 years of practicing estate planning and probate law, I have yet to find an adequate substitute for in-person client meetings. I will continue to offer my clients the option to meet in-person, albeit outside. Estate planning attorneys will continue to seek a balance in protecting our clients, our staff and ourselves, and providing crucial estate planning services.
Melody Breeden is a shareholder at Turner Padget. She is certified by the South Carolina Supreme Court as a specialist in estate planning and probate law and currently serves on the Estate Planning and Probate Law Specialization Advisory Board. She can be reached at (843) 213-5530 or firstname.lastname@example.org.