Like so many of you, I spend every day wondering what will happen next, and how my clients should best be served in this crazy time.
However, in looking toward a prospective future where we cannot have clients in-office at all - or shouldn't (this arguably is already the case) - estate planners and elder law attorneys are facing significant problems.
The Current Platforms and Solutions are not Readily Workable for Our Type of Law
It's becoming increasingly clear to me that the platforms approved by the State of Michigan for e-notary/remote notary are, for a variety of reasons, not at all suited to the work we do. I have been doing extensive research and talking to the providers. These are not good and viable solutions for our type of law practice.
Here’s why the five platforms approved by the state don’t work:
Pavaso: only can handle real estate and mortgage transactions
EMortgage: also handles only real estate and mortgage
Nexsys: same as above, also have at least a 6 week wait
Notarize.com: will not let you use your own notary, even yourself, and will not notarize or witness wills or trusts
NotaryCam: the best current option but this would take weeks and possibly months to fully implement for you to be able to do your own. I am still not sure about the complexity of the platform for use by the clients. They will not be involved with wills, specifically.
No, this is not easy. But I believe that, as long as we follow the requirements that any signing is recorded, there is actually less opportunity for "shenanigans" than there is currently.
Bottom Line? It's All About the Client
What I believe needs to be done is first and foremost in our collective clients' best interests. We have many clients (most, I would say) that are the in the most vulnerable population. None of us can guarantee that we are not carriers of this virus or that any of our staff are not, as there are people that are asymptomatic and are carriers.
I don't even want it to be possible that I or any of my staff would be the reason for harm to the client. In fact, even without a "stay at home" requirement, I think it is reckless for us to force a client into any contact with us or our staff.
Even if you don't agree with me (as it relates to the risk), I would think at this point it's pretty clear that the clients are, by and large, not going to come in to see us. Some may still be willing, but most will not.
And yet. They need our services now, more than ever.
Here's What I'd Like to See Happen
- an emergency e-will statute
- to expand the list of approved providers for e-and-remote notary for attorneys and their supervised staff to include any platform that currently allows for it. (DocuSign/DocVerify are examples, but there are more)
- to require that all such signings are recorded using Zoom or similar technology, for the client's (and our own) protection
If you do not already have certain technology in place this may be challenging for you. An example is a computer with enough memory and capability to handle virtual meetings and a strong ethernet (not wi-fi) connection. But these are all surmountable obstacles.
This is a Forcing Mechanism for a Larger Issue that Impacts our Financial Futures
If you feel that this is all overblown panic, I invite you to think again.
In my view, the coronavirus isn't the entire cause of the need for change. Change is already happening in many ways across many industries. The law, as always, is one of the last to adapt. Coronavirus is merely the forcing mechanism for change in a more compressed amount of time than most wanted or expected.
To illustrate further, I think of the difference between Blockbuster and Netflix.
Blockbuster kept their store model even after being approached by Netflix's founder for a partnership. Times changed; Blockbuster went bankrupt and Netflix is a multi- billion dollar company. Netflix changed with what consumer demand required, and its ease of use made it the clear winner in the end. Blockbuster didn't...and game over for them.
Over the years, I have often thought of how much money I and my peers (you!) leave on the table by allowing online companies to steal our business. Companies that cannot and will not give the kind of service or advice that we do. Companies that, in my view, are often harmful to the consumer but due to their ease of use are pervasive.
So regardless of the reason this is happening, I hope you will all join me in welcoming this change as an opportunity for us to fight for what I think we all believe in - quality legal services done in a way that protects clients, all while giving them the easiest and fastest way to get it done.
Things are in the Works, But Need Our Collective Voice to Make it Real
The Elder Law and Disability Rights Section has been diligently working on this but it would be helpful if you all stood in support to make this happen. We need to be together on this. We need action. We need to support one another to get things to happen and to help our clients by helping ourselves. We should not wait until something worse happens. The time IS NOW. We must individually and collectively demand action.
Please contact your state and federal representatives, including the Governor's office and ask them to support expanded remote notary legislation as set forth by the Elder Law and Disability Rights Section of the State Bar of Michigan.