Q. My father is confined to his Assisted Living Facility (“ALF”) and is very anxious to sign a Will and other estate planning documents. However, the facility is on ‘lock-down’ due to the COVID-19 pandemic, his caregivers will not be able to serve as witnesses, and I cannot arrange for a mobile notary to enter to notarize documents. What can I do?
A. Be aware that not every estate planning document must be witnessed or notarized. Take advantage of this legal fact, so he can sign those that can be created without these formalities, as follows:
Last Will: Conventional wisdom has it that a Will executed in California always requires the presence of two witnesses to observe the Testator sign, and who so attest in writing. However, a little known provision of California law allows a Will to be found valid even if not so witnessed, if it is later established by “clear and convincing evidence” that the Testator intended the signed document to constitute his Will. So, ask your father’s attorney to be creative so as to enable the signing to meet this evidentiary standard. In our office, we are working up procedures to do just that, which include: remotely supervising and video recording the signing, having the signer clearly state on video that the document is his Will, and having the supervising attorney prepare an affidavit describing the signing event. Our plan also contemplates re-signing the Will with the traditional two witnesses once the COVID-19 crisis has passed. Note: To my knowledge, this work-a-round has not yet been fully tested in the courts, but the “clear and convincing evidence” alternative is clearly written into the law. CA Probate Code § 6110 (c)(2).
Alternatively, and perhaps even following a template, he might write it out all in his own handwriting on a blank piece of paper and thereby create a holographic Will, which requires neither witnesses nor notary.
Trust: While it is customary and even preferred for the Trustor’s signature on a trust to be notarized, California law does not so require. A trust declaration signed only by your father would be sufficient. If real property is to be included in the trust assets, those properties can be described in the trust by their common and legal description, and formal deeds moving them into the trust prepared and notarized later, if necessary. If your father were to die before the COVID crisis is over, there would be a simple court procedure that could then be invoked to transfer them into the trust, in accordance with his intention, so as to eliminate the need for a probate. This is called a “Heggstad Petition”.
Health Care Surrogate Statement: Any patient may orally, or in writing, designate another person to act as his/her Health Care Surrogate. CA Probate Code § 4711. This act is different from naming an Agent in an Advance Health Care Directive (“AHCD”), which does require witnesses or notary, as well as the joinder of an Ombudsman if signed while the patient is in a nursing home. However, your father may orally, or in writing, designate a health care surrogate by so informing the supervising health care provider at his ALF, and this designation requires no witnesses and no notary. The designation would be good for your father’s current course of treatment or illness, or 60 days, whichever is shorter. During that term, it actually overrides the designation of Agent in an AHCD.
Physician Order for Life Sustaining Treatment (“POLST”): This document requires only the signature of the patient (or patient’s representative) and his/her physician. No witnesses and no notary are needed.
Power of Attorney (“POA”): Unfortunately, a POA does require either two witnesses or a notarization.
So, help your father sign documents that he can sign now, even without witnesses or notary, and revisit this issue after the COVID-19 crisis passes. Both of you will likely feel much better for having done so.