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March 24, 2020

It's Time for Legal Planning to Catch Up in a Digital World

By Charles P. Sabatino*
It's time for legal planning docs to enter the digital world

It's time for legal planning docs to enter the digital world

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol 41, Issue 5)

The coronavirus pandemic, barreling across the U.S., highlights the dire need for estate planning and advance care planning documents to enter the digital world.

Rajiv Nagaich’s excellent analysis on this issue, which makes the case that Washington State law can and should be interpreted to allow remote witnessing of estate planning documents, points to the need to bring the entire range of personal and estate planning documents into the digital age.  He creatively uses a state law option that allows the signing of a will by a third person at the direction of the testator and in the testator's presence. Many states provide a similar option for health care advance directives. He also takes an expansive view of “presence” to enable remote signing by a third person who is visually and audibly connected in real time.  

We have become accustomed to being present with others through countless audio-visual technologies that now pervade our daily lives. The presence required of witnesses and notaries can be accomplished with similar technology and made as secure and accountable as physical presence. However, the laws regulating the validity of estate and personal planning documents are mired in the legal framework of the last century.  Business and commerce have adapted well to electronic documents and digital signatures for quite some time under the federal Electronic Signatures in Global and National Commerce Act of 2000 (E-sign Act), and under state laws that conform to Uniform Electronic Transactions Act of 1999.  But these statutes do not change any laws governing the creation and execution of wills, codicils, or testamentary trusts.

Only four states – Arizona, Florida, Indiana and Nevada – have adopted digital will legislation, and they vary significantly in the requirements for digital execution, witnessing, notarization, and secure storage of digital documents.

State advance directive laws generally require witnessing, typically by two persons, although about 20 states permit notarization alone as an alternative to witnessing for health care powers of attorney.  Three states – Missouri, North Carolina, and West Virginia – mandate the most burdensome approach, both witnessing and notarization.  Only California, Illinois, Louisiana, Maryland and Texas provide an option for digital advance directives, at least in theory.  We have little practical information about whether and how those provisions are implemented.  As with digital wills, there is little uniformity in the legislation.

In the face of our current public health crisis, the lack of remote digital execution and notarization options in personal planning has stifled personal legal planning options for countless Americans who are most at risk and  need to ensure their wishes are known and their affairs are in order. The coronavirus outbreak has made advance planning more important than ever. 

Fully digital advance directives require protocols that permit:

  • Digital signatures
  • Remote witnessing via live audio-visual technology
  • Digital notarization where notarization is a requirement or option
  • Digital storage

The last element, digital storage, is the one piece that has moved forward significantly. Online advance directive registries have become common, sponsored by states and by private companies such as, Docubank, American Living Will registry, and others.   But the other elements are recognized in very few states and with little consistency. 

Regarding notarization, some 23 states have adopted some form of remote notarization law, though they vary in scope, and a few states such as New York and Massachusetts are allowing remote notarization by executive order during the current public health crisis.  Other governors could do the same to enable remote legal planning.  Governors or state health commissioners could take similar emergency executive actions with respect to advance directives.  Advance directives have a kind of double personality with respect to validity.  Directives that meet strict state law requirements (statutory advance directives) carry the aura of state authority behind them and additionally give health care providers so-called statutory immunity for following them in good faith.  However, directives in any other form, not in conformance with statutory requirements, still carry substantial weight as documented evidence of the individual’s wishes.  It behooves health care providers to respect such directives under accepted medical standards as well as under common law and constitutional principles that require honoring the patient’s right to consent to or refuse treatment.

A related clinical problem has arisen in the use of portable medical orders such as Medical Orders for Life Sustaining Treatment (also called POLST, MOST, and other names).  In the great majority of states, the patient's or surrogate's signature is required on the order.  While not prepared by lawyers or by individuals on their own, they are equally important advance care planning documents targeting the most seriously ill.  In the current crisis, consent almost always has to be obtained orally, but technically that is not valid.  These, too, need to be made accessible by executive order or guidance that makes clear the acceptability of remote consent, at least for the time being.

Down the road, a major lesson of the coronavirus crisis will be that remote and digital execution of estate and personal planning documents is safe, sensible, and should be recognized and regulated in state law.  Consistency will be the greater challenge. That is where the Uniform Law Commission plays a central role by bringing together national legal experts to craft an authoritative model for state legislation. The ULC released a Uniform Electronic Wills Act in 2019 that provides a uniform model for states that:

  • Allows a testator to execute a will electronically, while maintaining the safeguards wills law provides for wills executed on paper
  • Creates execution requirements that, if followed, will result in a valid will without a court hearing to determine validity if no one contests the will
  • Develops a flexible process that does not enshrine a particular business model in the statutes

Long-standing state laws and legal practices naturally resist change, but major national upheavals such as what we are experiencing now make the necessity for change clear.  Going forward, solutions are within our reach.

* The views contained in this article represent the opinions of the author and should not be construed to be those of either the American Bar Association or the Commission on Law and Aging unless adopted pursuant to the bylaws of the Association.