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Remote Execution and Witnessing of Estate Planning Documents in the Time of COVID-19

On April 10, 2020, Governor Hogan issued Order no. 20-04-10-01 suspending the requirement that witnesses for certain documents, specifically, Wills, Powers of Attorney, and Advance Health Care Directives, be in the physical presence of the individual executing the documents.  The Order is an attempt to address the need to maintain social distancing while addressing the needs of Marylanders to execute certain estate planning documents.

Governor Hogan’s Order allows witnesses to estate planning documents to be in the electronic presence of the signer.  The witnesses and signer must be able to observe each other and communicate as if they were physically present in the same location.  Several different means of communication are sufficient for electronic witnessing.  For example, a smart phone will allow individuals to both speak and see each other.  Also, computers, especially lap tops, with audio and visual capabilities allow for remote witnessing. 

The Order requires an attorney, admitted to practice in the Courts of Maryland, and in good standing with the State, to certify the execution by the signer and the witnesses.  To certify the execution, the attorney must take reasonable steps: to verify the executed document is a true, complete, and accurate copy of the document; to verify the signatures are either originals or electronic signatures of the signer and witnesses; to verify the signer is a resident or domiciliary of, or was physically in the State of Maryland when the document was signed; to verify the witnesses were residents of the State of Maryland; and to verify the identity of both the signer and the witnesses. The attorney providing the certification cannot act as a witness themselves.

The basic requirements of two witnesses for a Will, a Power of Attorney, and an Advance Health Care Directive are not suspended, and if the Power of Attorney addresses issues associated with real property, the Power of Attorney still needs to be notarized, but the Order allows for execution of estate planning documents to be physically safer for all concerned.

A copy of the Order can be found here:  https://governor.maryland.gov/wp-content/uploads/2020/04/Remote-Witnessing-4.10.20.pdf