COVID-19 HAS TAUGHT US…
COVID-19 has taught us many things about the world, our communities, and ourselves. We learned about distance as the pandemic followed the global economy’s connected pathways into our state capitals and hometowns. The spreading contagion revealed our interdependence as we sheltered in place. Shortages of household goods, high-speed Internet, and access to ailing family members laid bare our vulnerability and unpreparedness. This article reflects on some of those lessons and describes changes that we can expect in the future.
COVID-19 Has Taught Us About Distance
COVID-19 has taught us about the distance between countries and each other. Wuhan seemed far away in as 2019 ended when reporters first described the city’s dangerous respiratory illness (see the New York Times coronavirus-timeline article at: https://www.nytimes.com/article/coronavirus-timeline.html). The coronavirus shortened that distance more rapidly than most people could have imagined. It spread to other countries within one month and became an American problem in less than two months.
COVID-19 Has Taught Us About Our Vulnerabilities
We learned that we could slow the pandemic by isolating from each other. However, we also learned that isolation is costly. As the world hunkered down, supply chains broke, and the world economy ground to a halt. We were not prepared for all essential workers to maintain safe distances, so the virus spread and disrupted our food supply. Isolation also exposed Internet vulnerability as educators, and other service professionals struggled to serve communities with poor broadband connections. Although separation helped control the contagion in healthcare facilities, it exposed gaps in law and technology that impaired lawyers’ ability to serve some ailing clients. COVID-19 has taught us about vulnerabilities that we must overcome to withstand the next crisis. The world we once knew has changed, and we must embrace that change to face our future.
COVID-19 Has Taught Us About Our Resilience and Resourcefulness
COVID-19 has taught us to rethink our priorities amid enormous socio-economic challenges. Business gurus say businesses must “pivot” toward more successful operations during disruption by competitive forces. Resourceful people across such diverse occupations as musicians, physicians, grocers, and distillers have demonstrated pivot responses to the pandemic. Musicians formed virtual bands and vocal groups on streaming video platforms. Some emergency room physicians constructed face shields from hardware store materials. Grocers reconfigured in-store traffic flows and launched curbside services to protect customers and employees. When bars and restaurants stopped ordering liquor, resourceful distillers modified alcohol production to help resolve national hand sanitizer shortages. Although the pandemic has exposed our vulnerabilities, the enterprising people in these examples discovered strengths and opportunities in their weaknesses.
COVID-19 Has Taught Us To Plan Now For Later Crises
We have written several articles about the need to plan ahead for health crises (For examples, see: You Probably Need A Lawyer If . . .; Too Young to Plan? Think Again!; Are All Powers of Attorney Created Equal?; Crisis Management for a Nursing Home Resident without an Estate Plan; Does the law really change enough to make estate plan updates important?). The coronavirus pandemic proved that point sharply. As we will explain in the next section of this article, health safety requirements prevented many nursing home residents from making or updating estate plans. Those residents that had not already made powers of attorney could not authorize people to help them in those restricted environments. Alternatively, well-prepared people that had engaged elder law attorneys for pre-crisis estate planning had already empowered family members to conduct important business during the pandemic.
Technology has both enhanced and clashed with many aspects of legal services. Perhaps no legal services aspect has resisted technological change more than the ancient anti-fraud safeguards of our estate planning laws. An example justifying those old safeguards appears in a Bible story (Genesis Chapter 27) of manipulation by a son (Jacob) of his blind father (Isaac) to steal the inheritance of brother (Esau).
COVID-19 Has Taught Us That Accessible Electronic Estate Plans Are Essential
Many states have passed laws about digital estate plans in the past five years. Most of those laws have included updated versions of the old anti-fraud safeguards. Witnesses must still be present to watch people sign wills. Also, although a person can make a power of attorney certified over the Internet by a notary public, the notary public must use a complex system to prove the person’s identity and mental capacity.
Modern Estate Plan Tools Hindered By Ancient Restrictions
Anti-fraud protection in traditional and digital estate planning laws became estate planning barriers for people isolated in healthcare facilities during the COVID-19 health crisis. Nursing homes and other long-term care facilities restricted visitor access to prevent visitors from spreading the virus to the patients. So, witnesses and notaries could not help patients update their estate plans in person.
Emergency Orders Fall Short
State supreme courts and other government officials helped resolve the will problem by issuing emergency orders allowing witnesses to participate in signings of wills remotely over the Internet. However, Indiana and some other states maintained strict remote notarization requirements that made it almost impossible for nursing home residents to make powers of attorney. Those remote notarization barriers for powers of attorney rendered the emergency orders for remote will signing almost meaningless.
Lawyers Are Pivoting Toward Accessible Estate Planning Legislation
The COVID-19 health crisis has inspired estate planning lawyers to propose new legislation to make electronic estate plans more accessible to isolated people. Jeff Hawkins and other volunteer members of the Indiana State Bar Association’s Probate, Trust & Real Property Section have devoted many hours to overhaul Indiana’s electronic estate plan system. If the Indiana General Assembly adopts the proposals, Hoosier shut-ins may be able to make complete estate plans with remote witnesses as early as spring 2021.
About the Authors
Jeff R. Hawkins and Jennifer J. Hawkins are admitted to practice law in Indiana. Both lawyers are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers. They are also active members of the Indiana State Bar Association and the Indiana Chapter of the National Academy of Elder Law Attorneys (NAELA).
Jeff Hawkins is licensed to practice law in Illinois, and he is a member of the Illinois State Bar Association and the Illinois NAELA Chapter. He served as the 2014-15 President of the Indiana State Bar Association, and he is a registered civil mediator.
More Information
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