Estate Planning Alert: Ohio Law Compliance - Signing Documents in the Midst of the Current Pandemic
By Lori R. Kilpeck & Richard H. Harris, III on March 24, 2020
The current coronavirus pandemic reminds us of the importance of current estate planning documents. Typically, you have time to make arrangements with your attorney to sign documents at our office; however, the signing of documents becomes more muddled when you may not be able to meet at our office due to your health, self-isolation, social distancing or quarantines imposed by the government. A month ago, we never would have thought any of this possible, but we are here today and we must adapt and accommodate to the current ever-changing situation and government guidelines.
In light of this pandemic, it is important to know that Trusts, Wills, Durable Powers of Attorney, and Health Care Powers of Attorney/Living Wills have specific execution requirements to make each document valid and enforceable. In Ohio, these are the requirements to make the following documents valid:
- Trust-Signed at the end by the Settlor and, typically, the Settlor’s signature is witnessed and signed by two (2) disinterested witnesses and/or executed by the Settlor in the presence of a Notary Public. However, there is no statutory requirement in Ohio that a Settlor’s signature must be witnessed or notarized for a trust agreement or trust amendment to be effective but it will make it much more difficult to withstand challenges by an unhappy beneficiary if the Settlor’s signature is neither witnessed nor notarized.
- Last Will and Testament-Signed at the end by the Testator whose signature is attested and subscribed in the conscious presence of the Testator by two or more competent and disinterested witnesses who witnessed the execution of the document by the Testator or heard the Testator acknowledge his or her signature.
- Durable Power of Attorney- Signed at the end by the Principal in the presence of a Notary Public. While a durable power of attorney in Ohio may be executed without the Principal’s signature being notarized, the designated agent will encounter problems in using it if the Principal’s signature is not notarized. In Ohio a Principal’s signature is presumed to be genuine only if the Principal’s signature has been notarized.
- Health Care Power of Attorney and Living Will Declarations- Signed by the Principal/Declarant and two (2) adult witnesses and/or executed in the presence of a Notary Public. If witnessed, the witnesses must be adults who are not related to the Principal or Declarant by blood, marriage, or adoption, nor can a witness be the attending physician of the Principal or Declarant or the administrator of any nursing home in which the Principal or Declarant is receiving care. If a Notary Public is used to satisfy the execution requirements under Ohio law, the Notary Public shall attest that the Principal or Declarant appears to be of sound mind and not under or subject to duress, fraud, or undue influence.
Proper execution of these documents is important should any be challenged due to undue influence, lack of capacity or abuse of a Power of Attorney. Typically, this is easily accomplished when we have the documents signed in our office and we are able to provide the required witnesses and Notary Public. The big question now facing us is what we can do if these execution requirements are not possible?
The good news is we do have options. We are able to provide signing instructions with the documents and send them to you securely either electronically or through a mail/delivery service. On a case by case basis, we will review whether we can safely accommodate a meeting practicing social distancing and following all guidelines to have your documents signed during this time while complying with Governor DeWine’s Order Dated March 22, 2020. At this time, Ohio has not enacted the ability to execute an electronic will or the ability to sign documents via videoconferencing, as these fall outside the scope of “being in one’s conscious presence” required under Ohio Revised Section 2107.03 (and a reason to be wary of online-only services). Because we believe estate planning documents provide peace of mind and assurance of the protection of your wishes, person and property, know that we will continue to monitor these requirements and any developments in the law, available technology, and best practices.
If you are concerned about your affairs or find yourself with extra down time, this is a good time to review your documents to ensure they meet your objectives and wishes. We are here for you.
Please contact any member of our Estate Planning Probate Trust Law practice group with any questions.