Category Archives: Estate Planning

How to Execute Estate Planning Documents During COVID-19

When your relative is in an assisted living facility or nursing home, oftentimes they cannot access their assets any longer. That’s when it is necessary for you to have the financial power of attorney, which allows you to immediately access your loved one’s assets and act on their behalf.

In Maryland, financial powers of attorney must be notarized.

But during the COVID-19 pandemic, how can you safely get estate planning documents notarized?

Before October 2020: Remote notarization
In the beginning of 2020, Governor Hogan issued emergency measures to allow for remote notarization. Those emergency measures appeared to address the concerns.

However, in all reality, the emergency measures made it a Herculean effort to still execute a financial power of attorney. The final financial power of attorney resembled a “Frankenstein power of attorney” because multiple authentication documents were stitched together to form one document.

Unfortunately, the emergency rules expired in October 2020.
After October 2020: Physical presence of a notary
The current statutory requirement, per Md. Ann. Code Est. & Trust Section 17-110, is that the financial power of attorney must be signed by the principal (i.e., your relative in the nursing home) before a notary public in the physical presence of two witnesses.

This means that the principal, the notary public, and two witnesses must all be together in person, at the same time, in order for the financial power of attorney to be officially signed and notarized. Virtual presence (e.g., through Zoom or Facetime) for any of those four people is not acceptable.

The Requirement of Physical Presence

The unique challenge during COVID-19 is that there are severe restrictions about who can enter assisted living facilities and nursing homes. On top of that, even in pre-COVID-19 times, many staff members of these facilities were already reluctant to assist in document executions. They’re afraid of being dragged in as witnesses if someone contests the validity of the legal document.

The requirement of physical presence is an issue not only for getting a financial power of attorney notarized. In Maryland, although last will and testaments and advance directives do not need to be notarized, they do require the physical presence of witnesses.

This means that there are complicated issues across the board with getting estate planning documents executed during the pandemic.

Local Elder Law Firm: How We Help During COVID-19

As a result of COVID-19:

There is an even greater need to use the advance directive and financial power of attorney.
But it is even harder to get these necessary documents executed.

At the Law Office of Adam J. Roa, we work with each family and each assisted living and nursing home facility on a case-by-case basis. As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing these essential estate planning documents for your loved one. Please call us at (410) 296-8166 x292.

COVID-19 Estate Planning

Challenges of Estate Planning During COVID-19

COVID-19 has made everything more complicated and riskier, from getting food to taking care of family members. With the current stay-at-home orders, and with the likelihood of stores and businesses slowly reopening, how can you best care for your elderly parent or loved one?

Essential Elder Law Documents for COVID-19

The most critical estate planning documents for an elderly parent or loved one to have during this period of time are the financial power of attorney and the advance directive. Also important, but not critical for day-to-day activity, is the last will and testament.

Steps to Take During COVID-19

The first step for families to take is to locate these estate planning documents now.
Then, make sure you have complete copies of all of the relevant documents.
It is not uncommon to have older versions of your estate planning documents. However, it is important that you are only using the most recent versions to avoid confusion.
For the financial power of attorney and advance directive, in many cases you can use copies of the documents in lieu of the originals.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing the essential documents of estate planning. Please call us at (410) 296-8166 x292.

To learn more, please see the COVID-19 resource that discusses the unique issues for each estate planning document: financial power of attorney, advance directive, last will and testament.

COVID-19 Last Will and Testament

It is human nature to procrastinate. Often, we have clients that review the estate planning documents only when there has been a health care crisis in the family. However, with the global health crisis of the COVID-19 pandemic, many families are now making it paramount to focus on the essential estate planning documents, including the last will and testament.

Locate all Last Wills and Testaments

As with all estate planning documents, you should locate all last wills and testaments for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the most up-to-date version is used.

It is also critical to locate the original last will and testament. Conformed copies are not original documents and will not be accepted by the Register of Wills unless all of the interested parties consent.

How to Execute a Last Will and Testament During COVID-19

The COVID-19 pandemic makes it difficult to find witnesses for a last will and testament.

Governor Hogan issued new emergency rules in the beginning of 2020 to implement remote witnessing for last wills and testaments. However, those rules have now expired. Witnesses will have to be present for a last will and testament execution. This presents a unique challenge for those clients that are in assisted living and/or nursing homes. We will work with an assisted living and/or nursing home on a case by case basis regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing a last will and testament. Please call us at (410) 296-8166 x292.

COVID-19 Advance Directive

It is critical during this time period that if you have a loved one in the hospital, in an assisted living facility, or in a nursing home, that you have his/her advance directive. Since contact with a loved one during the pandemic may be extremely problematic, it’s important for you to already have this document, explaining your loved one’s preferences.

Locate All Advance Directives

As with all estate planning documents, you should locate all advance directives for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the newer version negates the older version. Otherwise, you will have two active advance directives that may have separate instructions. This will create confusion.

Not All Advance Directives Are Called Advance Directives

In Maryland, the advance directive has two parts to it:

the health care agent instructions and
the living will.

They normally, but not always, are part of one document called the advance directive.

The health care agent instructions should provide a HIPAA release (medical information disclosure authorization), and the living will should address the three Maryland end-of-life decisions:

terminal condition
end stage condition, and
persistent vegetative state.

Usually one of the biggest issues with the end-of-life choices is whether one should be tube-fed or not. That decision should be very clear in the living will portion of the advance directive.

How to Execute an Advance Directive During COVID-19

The COVID-19 pandemic makes it difficult to find witnesses for an advance directive. There are several restrictions as to who can serve as a witness for a Maryland advance directive. In Maryland, the health care agent cannot be a witness. Also, at least one of the witnesses cannot knowingly inherit anything from the declarant.

Governor Hogan issued emergency rules in the beginning of 2020 to implement remote witnessing for advance directives. Those rules are now expired. This creates unique issues for clients in assisted living and/or nursing homes. Our office normally works with the assisted living or nursing home regarding document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing an advance directive. Please call us at (410) 296-8166 x292.

COVID-19 Pandemic and Essential Estate Planning Documents

Be Your Loved One’s Advocate During the Coronavirus Pandemic

Having to be isolated and separated from a loved one, especially a parent or spouse that needs your assistance, can be both a frustrating and terrifying experience. Places of healing and safety such as nursing homes are now coming under significant strain. The most vulnerable amongst us face a threat that is both elusive and seemingly pervasive. It is during these unusual times when serving as your loved one’s advocate, when they are not in a position to do so themselves, is most critical.

Essential Legal Documents: Financial Power of Attorney and Advance Directive

Legal documents, such as financial powers of attorney and advance directives, at one time were just afterthoughts to many of us, like unused jumper cables that you never quite used. However, now they are being thrust into the limelight. The question is, do you have one? And can you use it?

The Maryland Circuit Courts are now entering modified openings. There is a uniform leaning towards remote hearings but not all hearings are remote. If the request is made for an in-person hearing it may be scheduled a number of months in the future (with the possibility of being rescheduled depending on Covid-19 issues).

The path that must be utilized is through the financial powers of attorney and advance directives. Both documents enable you to act on behalf of your loved one, especially at a time when they are not in a position to act in their own best interests.

Elder Law Attorney Ensures Valid Legal Documents

Not all financial powers of attorneys and advance directives are equal. Nothing is worse than having an Internet-driven document, and then, in a moment of crisis, when you attempt to use it, discovering that it utterly fails.

It is critical that you have a good elder law attorney draft the proper financial power of attorney and advance directive. With social distancing and stay at home orders, the issue of how to execute these documents also presents unique problems. Let us assist you in executing these documents to meet the current requirements.

Even with the proper financial power of attorney and advance directive, you must be familiar with how to use it, and to know what you can do and what limitations exist. This information is critical if you are to be the best advocate for your loved one. Let us help you with practical advice and solutions.