Local Attorneys Writing Wills Risk Themselves and Appear in Person Despite COVID-19

My lawyer friends who specialize in trademarks or criminal law, have had a relatively smooth switch to practicing remotely while social distancing. Some of these lawyers always work remotely, and have given up on bricks-and-mortar.

Clients, other lawyers and professionals moved from face-to-face to the telephone and Zoom. Courts are convening via teleconference, including for adoptions and first-appearance criminal hearings.

Switching to a fully remote practice is not easy or even possible for lawyers like me who focus in real property, estate planning and wills.

In Florida, certain documents related to this area of law, such as powers of attorney and wills, must be signed and witnessed in person. We do not have to be within six feet, but we must be able to see and hear the person, and that person must be physically present.

In 2019, the Legislature voted to allow the remote signing of wills, but the law does not become effective until July 1, 2020. Until then, local Florida lawyers are findings ways to meet the current legal requirements.

In my office, when the pandemic first became an issue, we did "socially-distanced" signings in one of our law firm conference rooms. Realizing that these safeguards still involved clients entering the building, touching the elevator button, moving chairs, and breathing in our office, more drastic measures were implemented. Starting in early April, we moved all signings outside! My "Legal Eagles" Staff and I now exit the building and the clients stays in their car during the signing. If they do not have their own pen, we give them a new one to use and take home.

What surprised me is the increase in people contacting me. No one is saying, " I will do my estate plan later when it is convenient." Everyone is now incredibly aware that if they get sick or pass away, they need up-to-date legal documents. They know they need a business power of attorney, Medical surrogate and will.

Many states have existing laws allowing remote signings. Since Florida will allow them for wills starting in July, the question many people are asking is why not expedite that start date by two months? The Real, Property, Probate and Trust Law Section of The Florida Bar is made up of lawyers and is usually viewed as a resource for lawyers. But its mission also involves serving the public. The Section published a memorandum to explain why the effective date of the new law can not take effect now.

That memorandum informs the lawyers and the public that our courts do not have jurisdictional authority because "to change this long-standing principal of law that is entrenched in Florida's case law would require the courts to overrule existing precedent, which is not possible without an existing case or controversy."

Many have also leaned on our Governor Ron DeSantis. The argument is that he could sign an executive order to suspend the current in-person signing requirements or change the effective date of the law to immediately allow electronic signatures and remote witnessing. Unfortunately, this is not an option. There are potential constitutional roadblocks to that solution.

Our governor has the power during this emergency to issue executive orders dispensing with some legal requirements, but those powers are limited, according to the Bar Section. They stated, "Our analysis leads us to believe that such an order does not appear to fit neatly into any expressed executive power.".

The Bar Section summarized, "The safest solution is for the legislature to act. If a special session is called, the Section in all likelihood will: (i) support an earlier effective date for electronic will executions, provided that existing safeguards remain in place; or (ii) offer new legislation to address the issues we face."

"Rest assured the Section is actively working on possible new legislation so that the Section's leadership will be in a position to move quickly if a special session is called. The Section has been in contact with the Elder Law and Tax Law Sections of the Florida Bar to try to coordinate efforts. Until that time, we do not believe there is anything the Section can do to resolve the execution issues that will not create a risky situation that could jeopardize the validity of documents for years to come."

Estate Planning Lawyers such as myself are actively getting wills signed in person, while taking appropriate measures to protect everyone's health by following the recommendations from authorities.

My law firm and "Legal Eagles" Team are open for business to help clients save time, trouble and money in their estate planning, real estate and business matters. In the business law arena, I am selectively taking on new cases involving contracts affected by the virus. Our procedures may have changed, but the commitment to service and excellence remains unchanged.

Rignanese & Associates, PLLC can be reached at 863.294.1114. Additional information and free blogs to read are at http://www.RignaneseLaw.com.

© Cynthia C. Rignanese, Senior Managing Partner (2020)