The current virus crisis has reminded all of us of the limits of our physical lives. During times like these, we are often motivated to ensure that our wills and other important documents are updated and effective.
In that context, most lawyers will recommend that powers of attorney for finances and healthcare be prepared along with wills, so that incapacity while still alive will not cause undue hardship for our loved ones. And, many times, at or near the same time, people will execute living wills that instruct family and medical professionals to remove artificial hydration for us when we are both permanently unconscious and terminally ill. Powers of attorney and living wills are often called collectively “advanced directives.”
To be effective, wills must be signed (executed) in the presence of two witnesses. Advanced directives must either be witnessed by two people or have the signer’s signature notarized in order for the advanced directive document to be effective.
Sometimes, it is too late or otherwise impossible to execute our wills and advance directives. This is particularly true when we are mentally unable to comprehend what we are doing due to medication, age/disease-related incapacity or an accident.
Nowadays, due to current social distancing guidelines and orders, another challenge comes in the form of witness or notary availability. When we are required to keep away from others (and sometimes are precluded from even entering the building where signers live), proper execution of documents to ensure that they are enforceable can appear to be challenging or even impossible.
However, importantly, last year, Ohio passed new legislation that allowed for certain people to notarize people’s signatures, even when that notary public is not physically present with the signer. The new “remote notary” law requires expensive classes, extra tests and pricey software. However, “remote/electronic” notaries have the ability to notarize signatures on documents even when the documents are signed at a location different from where the notary public is situated.
The biggest requirements for the person who is signing a document that will have his or her signature notarized remotely is that the person needs internet access and a computer or smartphone with a camera. Beyond that, the heavy lifting (software, documentation, etc.) of creating documents with remotely notarized signatures is borne by the remote notary.
My law firm recently invested in this technology, and other law firms have also done so. We have found that the convenience of being able to notarize signatures and get critical documents signed and put into effect even while someone is quarantined in a nursing home or hospital is an invaluable resource.
Of course, for many documents that do not require signatures that are notarized, those documents can be emailed, printed, signed and texted or emailed back. Many real estate professionals (and now many law firms, including mine) provide the ability for people to sign “electronically” over the internet (again, without special software for the signer), so that there is no need for a printer or even a pen or return envelope.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.