As I See It: Massachusetts must enact remote notarization, witnessing law

As an estate planning attorney in the Commonwealth who has been practicing law for 27 years, I have prepared thousands upon thousands of documents for clients, such as health care proxies, durable powers of attorney, wills, revocable trusts and irrevocable trusts. These documents serve important functions for individuals, such as managing property and inheritances, providing ease of access to property when someone dies, and enabling other to help make legal and financial decisions for someone in the event of incapacity.

Now, with all of our client conversations being handled through phone calls or video conferences, it is currently not possible to meet in person with clients to execute their documents. Wills and health care proxies require two witnesses. Best practices are that Wills also be notarized. Durable powers of attorney and trusts typically must also be notarized in order to be accepted. The notarization and witnessing rules require all of this to be done in the physical presence of the people signing the documents.

Needless to say, with social distancing mandates and stay-at-home orders during the COVID-19 pandemic this is not possible. These meetings, even though they only last about 20 to 30 minutes, put the clients, the attorneys, and the witnesses at substantial risk.

I've heard recent stories of attorney meeting clients in parking lots and signing documents through car windows or on trunks of cars. I've also heard stories of documents being signed through glass doors or windows so that people could see each other but not be exposed to one another.

Currently, in my law practice, the signing of documents has stalled. And our clients both existing and new are very concerned. They are worried about getting sick. They are worried about who will take care of their children. They are worried about who will inherit their property and how that will be managed. Routine conversations with people have now taken on an urgency that in the past I have only seen with very sick or elderly people.

I've also had existing clients who are immuno-compromised contact me who are extremely concerned about going into public. They want to update their documents, but there is no way for those documents to be signed.

What is urgently needed is for a law to be passed to allow the witnessing and the notarization of these documents to be done remotely, via video conferencing. Essentially we need for the term "in the presence of" to be expanded to include a video conference.

A group of trusts and estates attorney in the Commonwealth has banded together to draft emergency legislation to allow just this type of remote notarization and witnessing of documents. However, as of the writing of this letter, it is my understanding that this legislation is not being acted upon.

Having a Will and other vital documents, such as health care proxies, durable powers of attorney and trusts, in place in case the worst happens would help alleviate at least a little bit of the stress that the citizens of our Commonwealth are now facing. It is imperative that the Commonwealth enact a remote notarization and witnessing law as soon as possible.

Tracy Craig is partner and chair of the Trusts and Estates Group at Mirick O'Connell law firm in Worcester.

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