Never let a crisis go to waste
May 1, 2020
This is the second time in less than two years I have written this column in the wake of a major traumatic event.
A few days after the 2018 earthquake, I used that event to remind people that incidents like that should shake them out of their complacency and cause them to get their affairs in order. At the time I wondered whether, when the Senior Voice came out a month later, people would have largely forgotten the event (as it turned out, they had not). This time, a few weeks into the hunker-down, shut-down, social distancing response to the coronavirus, I have no doubt that when this issue appears, the crisis will still be fresh on everyone’s mind.
The Washington Post ran a story, reprinted in the Anchorage Daily News, about how healthcare workers were worried about getting their own final arrangements done, given the exposure many of them have to the virus. I always found it puzzling that so many people who work in medical jobs don’t have any kind of estate planning in place. Most of them don’t even have an Advance Health Care Directive, even though they see these forms all the time.
In fact, there is a federal law which requires the receptionists in medical offices to ask every new patient if they have an advance directive in place. And yet I have had those same receptionists tell me they never bothered to fill one out themselves.
I could repeat almost everything I wrote in December 2018 and it would be completely apropos to the current situation. But I won’t. After all, if the pastor gives the exact same sermon two weeks in a row, most of the parishioners are not going to come back the third week.
So let’s talk about Rahm Emanuel instead. He was the politician who famously said
“You never let a serious crisis go to waste. And what I mean by that, it’s an opportunity to do things you think you could not do before.”
Regardless of what you think of Rahm, or what kinds of things he was trying to accomplish in a crisis, his point is not invalid. Crises force us to do things differently, sometimes for the good. They make us look at what is really necessary and important.
In these weeks since the middle of March, estate planners have been talking to each other. The most important topic has been how to get things done, when the usual means of doing those things are not available. For me, one of the biggest shocks to my system was the sudden unavailability of notaries. For a long time, getting a notary public has been easy-peasy. There are three right here in my office, and if my office was not convenient for someone, they could walk into their local bank or credit union, where a notary was also surely available. But all of a sudden, my office has to be locked down, and most of the banks and credit unions have gone to drive-through only. With a lot of other places closed where one would normally be able to find a notary, such as title companies or post offices, this has dramatically complicated getting documents signed.
So what do we do? I found one answer by digging into statutes I hadn’t needed to look at in years. One of the key documents I had been having clients sign in front of a notary was a Declaration of Trust. But did that have to be signed in front of a notary? No, the statutes merely said it needed to be “signed and delivered to the trustee”. I still like to have them notarized, so there is no question of the identity of the signer. But in these troubled times I find that I can create a perfectly valid, legal living trust by drafting the documents and either mailing or e-mailing them to the client, who simply has to print and sign them.
Wills are trickier. Normally a will must be signed in front of two witnesses and a notary. This is called a “self-proving will”. Obviously that is difficult to do at the moment. However, there is another kind of legal will called a “holographic will”. To be valid as a holographic will, it merely needs to be signed and dated, and the material portions of the document must be in the testator’s own hand. So I stripped the will down to its barest essentials (after all, I don’t want to aggravate anyone’s arthritis) and I can provide the necessary language to the client, which the client then will copy out in his or her own hand. It is still best to have a regular, witnessed, self-proving will, but we can replace the holographic will later, when things have returned to normal, and in the meantime the client will have a valid will.
Getting payment for services is fairly easy, too, because clients can use a credit card over the phone. I have become more adept at using the credit card reader in recent weeks. A few months ago, when my assistant was out sick, I tried to take a credit card by phone and ended up accidentally converting my card reader to Spanish. But enough about my technological prowess.
I am not cloistered enough to think that it is only estate planners who are scrambling to innovate during these trying times. Restaurants are trying to keep afloat with creative take-out and delivery options. Teachers are learning to lecture over the computer. Grocery stores are experimenting with special “senior hours” or with options to pick up groceries at the loading dock. At least one title company has been closing property transactions in the parking lot. And I imagine the medical professions are coming up with all kinds of new ways to deliver their services.
I’m no Pollyanna. I know this coronavirus situation is terrible, that a lot of people are losing their lives and that many more will lose their jobs or businesses. But even in the worst of circumstances, positive things can happen. For many of us, that means looking at things fresh, and deciding what really matters.
God bless all of you, and stay healthy.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Don’t worry, we can do that over the phone.