By Corinne Cantwell Heggie & Jackie Melinger Published by the North Suburban Bar Association
As COVID-19 gripped the globe, it brought a crush of uncertainty overnight to the legal community and economy. When you read this article, some of you have probably been working remotely since March with no plans to return to the office until next year. To say these are trying times would certainly not be an understatement. The constant question inside our heads is how to persevere to drive doubt, fear and frustration from our minds as well as the minds of clients, colleagues, friends and family.
These uncomfortable thoughts often lead to uncomfortable conversations. However,r as attorneys that protect assets from legal battles, taxes and long court battles with wills, trusts and powers of attorney, we help facilitate uncomfortable conversations with clients and their families, business partners and beneficiaries all the time. The pandemic has reinforced our firm's mantra that having the estate planning discussion now is better than not having it at all. In fact, it is one of the reasons why we have drafted free estate plans for first responders during the pandemic, Who has time to find an attorney to help paper guardians, beneficiaries, titling of assets when your life is at risk for the community's collective well-being and by definition, you need a plan?
Our firm's ability to document estate plans not only for first responders but for all our clients, new and old, was possible in part because Governor Pritzker signed Executive Order 2020-14 ("the Order"). The Order allowed notary public and remote witnessing of documents just days into shelter-in-place. While the Order did not excuse provision of the Electronic Commerce Security Act, 5 ILCS 175/5-102(c), which bars electronic signatures on certain documents, the Order's highlights included:
Any witnessing required by Illinois law may be completed remotely via two-way audio-video technology per the Order's guidelines.
The requirement that a person must "appear before" a notary public is satisfied if the notary public conducts the remote notarization via two-way audio-video technology provided the notary public is located in Illinois while executing her notarial act.
The witness and signatory must attest to be physically located in Illinois during the two-way audio-video communication.
The two-way audio-video recording must be kept for three years by the person signing the document or someone the person signing the document appoints.
The Order allowed a lot of business to continue somewhat seamlessly while the pandemic continued to cast waves of uncertainty through the economy. Business owners, entrepreneurs, individuals and families were able to move forward to paper deal, sign contracts, and handle personal matters with the necessary documents for which the pandemic did not excuse the need for a notarized signature. Thus, it came as no surprise that in July 2020, this critically important Order was signed into law. See 5 ILCS 175/95-20.
The legal community has raised some concerns with the new law. One concern, as often is the case with technology is how to safeguard against fraud. Another concern is accessibility to the technology necessary to comply with the law. There are privacy issues too. Does the law's requirement that a witness receive a copy of the entire signed document overlook the fact that often there is sensitive and private information contained in documents that require a witness and notary? A person signing a will or trust may prefer that a witness not be privy to the details that might be contained in these sorts of documents. To be sure, the engaged bar and trade associations in Illinois will be able to help identify and resolve gaps in the law.
Why should you care about the new law? It benefits you. How? From the comfort of your home, you can speak to an attorney to get an estate plan or have your estate plan reviewed if you have three things:
Access to video conference technology, think Cisco WebEx, Skype, FaceTime, Zoom
The ability to scan documents
An e-mail address
On the personal side of the law, it is important to think about who you should choose as your power of attorney for health care and for property. They can be the same person or two different people. You need to take personality, family dynamics and ability into account when making these decisions. It is best to let these people know in advance that you have named them and why you have made your choice. Discussing your wishes, however difficult this may be, is important as well. Although you will have things spelled out in your estate documents, letting the people in your life know why you have made certain decisions will help them in the stressful moments of having to execute them.
If you take time to ask questions and reflect, there will be no crush of uncertainty for your family and friends if you find yourself incapacitated or in a dire situation.
Corinne Cantwell Heggie is a partner at Wochner Law Firm LLC where she helps people, families and business owners protect their assets from loss, court battles and taxes with wills, trusts and powers of attorney. Corinne serves as a proud member of the North Suburban Bar Association's Board of Directors and is the immediate past President of the Women's Bar Association of Illinois.
Jacking Melinger is a co-owner of My Personal Bookkeeping, Inc. where she assists individuals and families with the organization and management of their daily household financial matters. Jackie and her husband also own and operate Home Instead Senior Care in the northern suburbs and Chicago. Jackie has always had a passion for taking care of seniors and has devoted herself to this type of work throughout her career and in volunteer work for 30 years.