With the novel coronavirus reaching North Carolina, here are the top questions our Elder Law attorneys and paralegals are facing:
I have been meaning to update my estate plan. I am scared to be in public now. What’s the best way to update my estate plan amid the COVID-19 crisis?
We deeply understand the anxiety and hardships that the current coronavirus outbreak is causing to everyone in our community. We have also heard from many people who want to talk to our lawyer about creating a will, trust, power of attorney, healthcare directive, etc.—just in case—but they need more flexible options for doing so (for example, some of our families have loved ones in nursing homes who can no longer leave or receive visitors).
The good news is that the Elder Law Group of CSH Law has the resources to continue to meet your needs. As a state-wide law firm, our firm remains open to serve our clients as long as it is safe to do so. Here is what we are doing as a firm to make sure that you can get your questions answered and get your affairs in order in a safe and easy way.
Our Elder Law Practice Group offers flexible options for meetings. If you choose to meet in person, know that we are sanitizing all surfaces and practicing safe social distancing in our large conference rooms. We are eliminating formalities like a hand shake when a wave from across the room (or an “air kiss” from some of favorite clients) will suffice.
We are willing to travel to your home under certain circumstances. Please call to ask whether your circumstances can accommodate a home visit.
We offer telephone conferences for reviewing drafts with clients. For some of our more technologically sophisticated clients, we may be able to accommodate video conferencing for meetings or supply draft documents safely via email.
Unfortunately, to execute your final documents, North Carolina law will not allow notaries and witnesses to legal documents to conduct these signings via video or remotely—and only an in-person witness or notary will suffice. For these circumstances, our Elder Law Practice Group may advise you on the protocols that will best achieve your safety and health needs as well as finalize your estate plans. This option may include a combination of a telephone conference to review the final documents together, followed by a “drive-by” signing at our office with witnesses and notary, as well as gloves, sanitizer, and a complimentary CSH Elder Law pen.
My estate planning documents are from out of state? Are these OK?
Welcome to North Carolina, newcomer! As a rule, our attorneys will need to review your existing documents to see what those documents actually say. Sometimes these documents require that another state’s laws govern, which could present unnecessary costs or hassles in using the documents to meet your needs.
What about DIY documents to bridge the gap between now and the time I can meet with an attorney?
With significant caution, some attorneys may tell you that online programs or documents that you create yourself could suffice until you can meet with an attorney and have proper documents executed. However, your unique circumstances will determine whether an attorney can make this kind of recommendation as your estate planning needs are incredibly fact-specific. The attorneys at the Elder Law Practice Group of CSH Law cannot make any recommendations like this without knowing your specific assets and needs, and we are still reticent to do so even when armed with sufficient information.
With that said, and knowing the urgency some of our clients are facing and fearing with COVID-19, there are some rare occasions when having a DIY document in place can protect you better than having no document at all. Note that without an attorney to review the document with you or to assist you with validly executing any estate planning document, your good intentions of having a DIY documents could have unintended, drastic, and often costly consequences for your loved ones that you may not be alive to solve.
As a rule, our Elder Law Practice Group cannot notarize or witness a document that we did not draft.
Where can I find a Health Care Power of Attorney?
Health Care Powers of Attorney can be found at hospitals, hospices, and often online. The North Carolina General Statutes also offers a form. For the sake of expediency in health care, you will want this document to be governed by North Carolina law if you are a North Carolina resident and receiving health care in North Carolina. Our attorneys have been advised of some local health care facilities who are not accepting Health Care Powers of Attorney that are from other states. Beware of the requirements for witnesses and notaries on this document, or let an attorney help you.
Where can I find a Durable Power of Attorney?
The North Carolina General Statutes offer a short form durable power of attorney for finances and assets. Extreme caution is advised with a DIY power of attorney because this document may not meet all (or any) of your needs. In fact, short form powers or attorney are rarely used by experienced estate planners or elder law attorneys because of the serious disadvantages a short form may offer. Attorneys know and can advise you about the “how” and the “why” for having certain provisions in this important document. You may also need to know that these documents, as originals, must be recorded with the County Registrar of Deeds for certain transactions. Better leave this document to legal professionals to help you.
I found an online program or software package to draft my own Will or Trust. Will this suffice?
Online Wills or Trusts are a popular option among DIY-ers. The problem is that people often make the wrong choices for their needs, assets, or loved ones. Lots of complications arise when you have minors who are heirs to an estate. Lots of unintended or expensive complications arise when you leave assets in trust. With Trusts, even sophisticated clients fail to properly or fully fund a trust, which results in expensive problems that could have easily been avoided with legal advice.
These documents are truly best left to an attorney to guide you through the entire process from recommendations to execution of the final documents. Our attorneys are available to let you know about changes in the law and how those changes, like the recent SECURE Act or the 2019 tax changes, impact your estate plans. Nevertheless, even if you fail to heed our warnings and advice to let us help you, our Elder Law Practice Group also represents clients in Trust and Estate litigation. In fact, DIY estate plans make for a robust litigation practice.
I simply jotted down my intentions on a piece of paper. This is my Will, right, and it will be honored?
Without the benefit of reviewing this document, we cannot tell you whether it meets the North Carolina legal requirements of a holographic Will, a codicil, or any other testamentary document. You would hate to learn that your entire estate plan hinged on illegible handwriting or words that did not make sense to others. The harder part is that if you are no longer alive, your loved ones are left to bicker over what your handwriting actually says or means. For this reason, handwriting experts are popular in estate litigation. Talk to an attorney about your estate plans.
I just crossed out a few names on my Will or Trust and handwrote a few new things on the document. I even dated it, initialed it, and added my signature to that document. Am I good?
Nope. You likely invalidated your Will or Trust by writing on it. Or you could have unintentionally amended your Will or Trust in a way that has disastrous, unintended, and costly consequences for your loved ones. You will probably need a new Will or Trust. Let us review what you have and make recommendations.
Our circumstances are really simple. We don’t need a complicated estate plan. We’re pretty savvy and understand how to do our own estate plan.
Attorneys hear these comments a lot. Without knowing more about your unique circumstances, we cannot “greenlight” any of your recommendations for your own estate planning goals.
However, advising and creating the correct documents is only part of the work we do. Executing documents that are valid in complying with the law is another part of our job. We caution you of the many, many pitfalls we see when people execute DIY documents on their own. If you make one mistake in executing a document, you may invalidate the entire document. And you may not be alive or capable of correcting the mistake. That mistake could cost your loved ones time, trouble, or money to solve the issue.
Many of your legal documents require witnesses and/or a notary. Amid the COVID-19 crisis, where people are sheltering in place, practicing safe social distancing, or in quarantine, locating witnesses or a notary may be impossible. In fact, our firm’s offices may be the safest place to have your documents witnessed and notarized. We encourage you to reach out to an Estate Planning Attorney and allow them to help you at this time of need.