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COVID-19 and Probate/Estate Planning: Q & A with Greg Kish (Audio File)

By John B. Swift posted 03-31-2020 08:32

Greg Kish, a probate and estate planning attorney in Traverse City, spoke to me about how his practice is responding to COVID-19. He talks about the unique ways his office is adapting to continue serving their clients and some of the challenges they have faced.


John: Hello, this is John Swift.

Max: And this is Max Matthies.

John: We're two of the staff attorneys at ICLE. We're talking to other Michigan attorneys about how the COVID-19 pandemic is impacting them and their clients.

Max: We thought it might be helpful to share how our colleagues and their firms are responding to the COVID crisis and provide some insight on how you might do the same.

Greg: My name is Greg Kish, and I'm an attorney in Traverse City. I am one of two shareholders in a small firm; we have three full-time attorneys, one of-counsel attorney, and three staff. We focus on estate planning, probate trust administration, elder law, and special needs planning.

John: All right. So what are some of the immediate steps you guys have had to take in response to COVID-19 situation?

Greg: It has been changing every day. We started about a week ago by limiting the number of people who circulate in our office, moving to telephone appointments whenever possible, putting off in-person appointments that were not urgent, and from a real nuts-and-bolts perspective, cleanings: the lobby, the light switch covers, door handles, the pens and the conference room, the conference table, the waiting chairs after any person would come into the office. We also, as things progressed, started prescreening our appointments that actually did need to happen in the office by calling them the day before, confirming that everyone in their household was feeling well and not experiencing any kind of symptoms.

John: How have they been responding to the requests?

Greg: First of all, I have not yet had anyone push back at these modifications to the way that we are working. Most people say they appreciate it and understand it. I have sensed from a small portion of our clients a sense of urgency about getting an estate plan done. In one case, I'm thinking, it's something that that had been on their shelf for years. But now, they feel as though they really want to get it done because mortality is at the top of mind.

John: For sure. So there's like a real sense of urgency with everybody?

Greg: Right. I think one thing that that's been somewhat tough in those situations is we've been clear with our staff and with each other that we will be the ones who determine whether a matter is urgent enough to warrant someone coming into our office. Sometimes what the client thinks is an emergency is not an emergency. Having the acceptance form signed on a patient advocate designation is not a reason for us to have an additional person circulate through our office. We're trying to limit the number of people who are crossing paths with each other. And even though we're maintaining the six-foot distance and we're cleaning, the best-case scenario is to never have the person come. So there has been a little bit of a mismatch there sometimes between what the client thinks is urgent and what we think is urgent. In normal times, the client drives the bus a little bit more. Right now, we do. So these people aren't necessarily happy, but we reassure them and they'll still get done and it's not an emergency.

John: So are you working remotely? Are you in the office?

Greg: This morning I am in the office. We're small, and so from a real practical perspective, I'm here because Friday's payday and I’m doing paychecks. We pay every week, so here I am. I have been in the office less this week than normal. And I think probably I will be in the office even less next week. I mean, we are preparing based on what we're seeing for a dramatic scaling back of our office presence, probably next week.

John: What are some of the big difficulties you’ve had as far as when you are working remotely?

Greg: Even though we are small, we do have a server-based computer network that has remote access. So the attorneys generally are familiar with that and working from home, and that's not an issue. I think one challenge is going to be [that] we're not sure what restrictions are going to look like in terms of who can be in the office and who can’t in the future. So, that real practical who gets the mail and who scans things into the system, we haven’t really figured that one out yet. But I can say for attorneys working at home, that's a part of our normal process. So we haven't had a lot of trouble with that. I think we're looking at sending people home today. With paralegals this afternoon, I'm going to walk them through remote access and send them home with an instruction sheet as well as a direct line to the cell phone for our tech support person so they can work through any issues there might be logging in from a home.

John: One of the things that we've seen a lot of discussion on the different forums is about remote signing and notarization and witness signatures. Have you hit on any of those issues? Do you have any thoughts on that?

Greg: At the moment, we have not. We have not yet been faced with a situation that required remote signing. And when I say that, I mean it hasn’t been a situation where we couldn't overcome the problem. I had a set of documents yesterday with drafts that were prepared about 10 days ago. I was talking over the drafts with a client who is in her mid-70s and not in great health. And we made the decision to take a critical look at the documents, which did have a notary block and witness lines on them. They asked the question, normally our best practice is to include those things because we like that extra level of identification of the signer. But that cost-benefit analysis is different today than it was two weeks ago. So we made a decision to remove the witness lines and remove the notary block because they're not required for legal validity, and we don’t want this client putting her health at risk to travel even to our office, which is pretty limited access. So, we've been talking about creative ways to deal with remote signings if we have someone who needs to sign a document that cannot be signed without a physical presence kind of witness, like a will. And the latest thing that we're looking at is creating essentially a will form where we essentially delete some of the words that relate to the material provisions of the will, the dispositive provisions, and who's being nominated as a personal representative, and then perhaps over FaceTime or other video conferencing we could have the client handwrite those in. Because if a document is signed and the material provisions are in the testator’s handwriting, you don't have a witness requirement. So we're looking at the workarounds first. We also have a nursing home resident who is a client we are representing, and the nursing home staff have been really helpful, when something needs to be signed or something needs to be witnessed, [in coordinating] that.

John: Okay. Do you have any advice for the other attorneys out there as far as keeping yourself together, you know, emotionally and physically getting through this?

Greg: Well, that's a good question. I think I'm pretty fortunate in that like many attorneys, but not all, for the most part, my immediate family and I are not in a high-risk group when it comes to the severity of this. So just from a physical health perspective, I need to remind myself that there are other people who are. Actually some of my staff have family members who are in higher-risk groups. I guess my advice is, it's the elephant in the room. Everybody's thinking about it all the time. And we've started our days in the office, every day this week, with a quick check-in—nothing particularly long or formal—about how people are doing. And we're all a little on edge. And sure, just acknowledging that out in the open allows us to maybe take it down a notch and just be aware that we need to be a little more patient with each other, a little more patient with our clients. And that sort of thing. This is a little off your question, but frankly, my biggest concern is our staff. We are a small office, and our staff are people who, for the most part, really depend on their employment here for their livelihood and the livelihood of their family members—and their health insurance, and their dental insurance, and their vision insurance. At the outset we reassured them that we were going to do everything that we could to keep things rolling from a business perspective, that if anyone didn't feel comfortable coming into the office and we weren't able to work remotely, they would be able to use all of their banked sick or vacation time in order to keep income flowing. But internally we're having conversations about, well, what if we have to close for a longer period of time. And I don't know that we have a great answer to how we are going to support them, but we are working on it.

John: Yeah, and I don't know that a lot of people have a real good answer. But that is a lot of really good advice. I think a lot of the folks who are going to listen to this will appreciate it. Thank you for that. Is there anything else you want to say to fellow attorneys out there who are trying to get through this?

Greg: As an elder law practice, many of our clients are in these high-risk groups. And I've always said elder law and estate planning for an elder law attorney is a little bit different than estate planning for the general population. In the general population you may do a lot of wills for people with young children, and you think someday, maybe, these wills will be probated. But more often than not people are going to update them three or four times throughout the course of the next 50 years, and someday, who knows, they might be implemented. In the elder law practice, we're dealing with people where mortality is on their minds, disability is on their minds. And now it is brought back into even sharper focus. So we're spending some time on a couple things. One, we're thinking about how can we help clients accomplish their goals when we can't have much physical contact with them, because in doing so that will calm them down. And it will make us feel like we're doing good things for them still, because we do really care about them. And I think other attorneys in my firm have long lists of things that we would like to do for the benefit of our firm and our practice that are not client matters, and they're not billable matters, and they're things that we say, “Gosh, when I have a free day, I'm going to work on a policy for this or a form for that.” Well, guess what? This might be the time where you can make investments in your practice, maybe not monetary investments, but investments in time, so that when things do start to return to normal, you'll be even more efficient and more effective.

John: That is very good advice. All the things we've been putting off that maybe we should have taken a look at before. So great. I really appreciate everything you had to say. It is always a pleasure talking to you. So thank you.

Greg: Thank you both. Stay healthy.

John: Yeah, will do. Take care.