REMOTE EXECUTION OF INCAPACITY DOCUMENTS DURING THE COVID-19/CORONAVIRUS PANDEMIC

REMOTE EXECUTION OF INCAPACITY DOCUMENTS DURING

THE COVID-19/CORONAVIRUS PANDEMIC

Prior to the Covid-19/Coronavirus pandemic, the law required an individual executing a living will or health care power of attorney to do so before a public notary and two witnesses.  Recognizing the health risks in gathering a group in a single room to execute a living will or health care power of attorney, the North Carolina General Assembly has temporarily relaxed the laws regarding the execution of these documents so as to minimize the risk of infection during the current Covid-19/Coronavirus health crisis.  At Louis Wooten, Attorney at Law, we have updated our forms to permit remote execution of general powers of attorneys, health care powers of attorneys and living wills to reflect the new law.  Thus, we can offer a safe and convenient environment for executing these documents.  You will not even have to leave your home.

The new law allows your signature to be notarized remotely by a notary utilizing video teleconferencing technology.  The new law also dispenses with the requirement that witnesses be present for the execution of a living will or health care power of attorney.  These changes are discussed in more detail below.  The changes are temporary as they expire on August 1, 2020, so if you are considering executing these documents, we recommend that you do so now, rather than later.

1. Remote Notarization. The following requirements must be satisfied in order for a notary to notarize the execution of a living will or health care power of attorney remotely:
   1. The notary must be physically present in North Carolina.
   2. The notary must witness the execution of the document in real time using video conference technology that has a clear audio and video feed that allows the notary and the person executing the document (the “Principal”) to interact directly.
   3. The Principal must verify that he or she is physically present in North Carolina and identify the county in which he or she is located.
   4. The notary must personally verify the identity of the Principal based on either personal knowledge or upon presentation of certain enumerated government issued identification cards such as a valid North Carolina driver license.
   5. The Principal must identify the document he or she is signing and the notary must witness the signature using the video conference technology.
   6. If the document is being signed under oath, the notary must administer the oath or affirmation using the video conference technology.

After the Principal executes the document, the principal must promptly (same day) transmit a copy of the signed document to the notary by electronic means (e.g. fax, scan or photo) and deliver the original signed document to the notary by mail or other physical delivery. The notary is required to compare the original document with the electronic transmittal, notarize the original, date the notarization as of the date of the Principal’s signature and return the original to the Principal.  The notary block must indicate the county(ies) in which the notary and Principal were located during the execution and indicate that the notary notarized the document in accordance with the emergency video notarization requirements set forth in N.C.G.S. §  10B-25.  The notary is also required to keep a journal of all acts notarized remotely, including certain details of the notarization such as the parties present, the type of instrument signed and the type of video conference technology employed.

2. Execution of Health Care Powers of Attorney and Living Wills. The new legislation suspends the requirement that health care powers of attorney and living wills be witnessed by two impartial witnesses.  Now, the statutes only require that the documents be properly notarized.  The notary acknowledgement must contain a statement indicating that the advance directive was signed in accordance with the procedures of N.C.G.S. § 32A-16.1 (for health care powers of attorney) or N.C.G.S. § 90-321.1 (for living wills).

As indicated, Louis Wooten, Attorney at Law has updated our forms to permit remote execution of general powers of attorneys, health care powers of attorneys and living wills, so now we can offer remote execution.  It is as simple as filling out a one page form.  Based on the information provided, we will generate draft documents and email them to you.  We will then review the draft documents with you via a Zoom© teleconference.  Once you are satisfied with the documents, we will arrange for a time to execute them, again via a Zoom© teleconference.  We will prepare the documents based on a flat fee, so there will be no surprises.  If you would like to put these documents in place, please contact us so we can start the process.