By Daniel R. Weiner
There is much that we still don’t know about this pandemic. One thing we know for sure, though, is that it has prompted many of us to confront our own mortality. Perhaps even more than our own mortality, we must also now contemplate incapacity.
If I am placed on a ventilator, who will look after my children? Who will access my accounts to make sure that my bills get paid? Who will make my healthcare decisions if I cannot make them myself?
In the midst of a pandemic where so many aspects of our lives feel beyond our control, it is no wonder that there has been an explosion in demand for estate planning services. Making a will, trust and healthcare directive is a way of taking control, rather than relying on default rules that may or may not correspond with what your wishes are.
To obtain this peace of mind, many of the documents you need must be notarized. But how can social distancing be maintained during notarization, which, in California, requires meeting in person?
The solution to this far from intractable problem is online notarization. At least 43 states have now implemented measures permitting some variety of online notarization, either on a permanent basis or temporarily while the coronavirus crisis persists. Instead of meeting in person, a notary verifies the client’s identity by meeting via Zoom or Skype. The notary is also able to confirm that the client understands the significance of the document and is signing of her own free will, as is the case when meeting in person.
To overcome the risk of fraud where the notary is not meeting with the client face to face, states have established protocols for notaries to follow to verify identity. Those protocols range from “credential analysis,” where a third party confirms the validity of the ID presented by the client, to “knowledge-based authentication,” where the client must answer a certain number of personal questions in quick succession. These measures seem eminently sensible in the current environment, and are undoubtedly equal to the task of preventing fraud.
So why is California lagging behind? It remains the case that notaries in California are prohibited from notarizing documents online. While the Secretary of State has indicated that an online notarization for a California client performed by a notary in a state allowing online notarization should be valid in California, there remain practical obstacles to this being a viable solution.
One such obstacle is the fact that many California counties are unable to record documents notarized online. For documents such as deeds transferring real estate that require recording after notarization, this is a significant problem. In early April, a leading group of industry associations sent a letter to the Governor imploring him to sign an executive order that requires counties to record such documents, but to no avail.
As a consequence, my firm and many others have been conducting signing meetings in clients’ driveways by establishing a protocol that to passers by must look like a makeshift operating room. With my notary, my clients and myself all wearing gloves and masks, we do our best to maintain as much distance from one another as we can.
It is not always easy. Some clients are relatively relaxed, whereas others are visibly nervous. They avoid going to the store or the post office for fear of inadvertently getting too close to someone. They would not, if there was an alternative, be meeting with me to get documents signed. For such clients, their discomfort is exacerbated when the notary asks them to remove their gloves so that they can be fingerprinted.
With so many people trying to regain some control over their lives by getting their estate plans in order, they should not be forced to choose between an advance health care directive and social distancing; between peace of mind and their health. With the stroke of his pen, the Governor can make it so that people no longer have to choose. I would strongly urge him to do so.
Daniel R. Weiner is a trusts and estates attorney and holds a degree from Duke Law School. He lives in the Del Mar area of San Diego with his wife and two young children.
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