Tuesday, August 18, 2020

Posted by: Suzanne Craig Robertson on Aug 17, 2020

In the Aug. 4 TBJ Select, Charles Key wrote about how he implements Executive Order 52, using remote notarization and remote witnessing. Key gave specific instruction on how he successfully executes a broad range of instruments while at the same time social distancing. Knowing there is usually more than one way to get things done, we asked readers to write in with their suggestions and experiences, too. This is what we learned.

We asked "How do you use remote notarization and remote witnessing in accordance with the governor's Executive Orders 26 and 52? Specifically, what steps do you take, and what software do you use?" and "Has it gone smoothly? What advice would you give to others?"

Athens, Tennessee, lawyer Sarah Kennedy wrote, "Our office has executed several estate documents using Executive Orders 26 and 52. A few days ahead of time, we coordinate a date and time with the client, and allow the client to choose the technology easiest for them (Zoom, FaceTime, etc.) In each case, we email the client the final documents to be signed. The client prints out the docs, and we connect using the remote technology. Present, will be myself (the attorney who advised the clients and prepared the docs), as well as 2 witnesses and a notary. The notary in our office asks the client for a government ID to confirm their identity, and then I walk the client through each document (just as I would in person), and I then confirm the document that is being signed. The client holds the document up, and I affirm the document, and the client affirms they wish to sign it in the presence of the witnesses, etc. Once the signing is complete, we ask the client to mail the documents back to us within the required time frame. If it's easier for the client, we provide them with UPS mailing labels to facilitate getting the docs back to us. Once back at our office, our witnesses sign, and the notary notarizes the document. And, of course, each signature block for the client, witnesses and notary, is written so as to acknowledge that it is a remote signing that has been carried out in accordance with the Executive Orders, etc. We then send the fully executed docs back to the client."

The process has gone smoothly for Kennedy, with most clients choosing to participate via FaceTime, which is incredibly easy to use. And, most clients are appreciative of being able to sign documents remotely. As far as advice goes, I would just be sure to work out the details of the technology with the clients beforehand to confirm they can use the technology, pay attention to the time frame set forth in the Executive Orders for having the docs fully executed, and make sure that all signature blocks are drafted in accordance with the Executive Orders, including affirmation that the client, witnesses and notary are all present in TN at the time of the witnessing and signing.

Nashville lawyer Michelle Hodges wrote, "I have had a parenting plan that we executed via zoom. My client printed the plan, held it up to the camera so that I could confirm the document, then signed on camera. I had printed a version as well and showed her, and signed/notarized. She then mailed the original of her signature to me, and I stapled the two together and filed with the court. My notarization section stated that it was being notarized in compliance with the Governor's order, including the Order number and date, and that it was being signed by counterpart in accordance with the order."

Hodges cautions though that "The Judge will not accept the plan because my signature and the client's are on different pages. I have requested reconsideration and provided the Governor's order for reference. I do not yet know if the Judge is going to accept it."

Helen Rogers of Nashville says she has used remote witnessing for "Yes for wills, POA and oath pages for complaints and discovery" and that it has gone very smoothly.

Brentwood lawyer Russ Cook advises to "send originals and blue pen with return envelope, signing is done by zoom meeting. Confirm that client is only person in room and is in Tennessee. Attorney is the notary, witnesses are office staff. Notary and witness sign their copies on same day as client signs. Notary and witness pages are then combined with original client returns. Completed copy is sent to client." This has not gone particularly smoothly for him every time. "Be prepared for zoom issues," he says, "and the possibility of having to reschedule the date."

Chattanooga lawyer Dana Perry uses these resources "frequently in my practice and not just for older people. Clients love it. Typically, I do one or two preliminary meetings via Zoom to get the client's instructions/give advice and then the Zoom signing. We set the computer and camera up in our firm's largest conference room so the client can see the witness team and we can see the client."

She says, "It has gone very smoothly, all things considered," saying her team often does "practice runs" on Zoom in advance of the Zoom signing meeting to make sure they can log in at the appointed time. "After COVID has run its course, she says she thinks people are going to want to continue with remote meetings and signings. "Several clients have made comments along the line of, 'I can buy a car/house/whatever online, I should be able to sign these types of documents remotely.'"


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