Q. We recently engaged you to assist my elderly mother to update and revise her estate planning documents, all while she was a patient in a skilled nursing facility under “lockdown” due to the COVID Pandemic. I appreciate that you were successful, but wonder how you were able to deal with the COVID issues that presented. As you know, I reside in another state and was unable to be present.
A. Yes, indeed, we were successful, but it took a lot of time to arrange and cooperation from a number of people, including the facility in which your mother resides. Here are some of the key points:
Initial Client Assessment: In our field, known as Elder Law, we always try to assess the capacity of our client to understand and sign legal documents. As we could not enter the facility to have an in-person meeting with your mother, we used technology to conduct real-time interviews with her using Face Time and ZOOM. In all sessions, I was able to see and interact with your mother in real time and thereby assess her mental capacity, which was excellent.
The Need for the Ombudsman: Another issue was the need to involve the County Ombudsman. California law requires that the Ombudsman (i.e, “Patient Advocate”) to sign off anytime a person in a skilled nursing facility, or hospital, is asked to sign an Advance Health Care Directive. Initially, there was concern that the Ombudsman’s office was itself concerned about entering the facility in order to perform its duty. Ultimately, it secured clearance to conduct a real-time interview with your mother using ZOOM, during which the Ombudsman was able to confirm that your mother was making the Directive “of her own free will”. The Ombudsman then “signed off” and transmitted her signature to us via email for inclusion in the final document. Without the Ombudsman’s willingness to participate remotely via ZOOM, we would not have been unable to complete the Directive in compliance with California Law.
Testing for Illness. Not surprisingly, to begin the signing process, the facility took everyone’s temperature outside and asked all to complete a form indicating no exposure to anyone with COVID like symptoms.
The Signing Table: The next challenge was to figure out a way that your mother could sign legal documents in the presence of the notary and witnesses, as appropriate, while still observing safety protocols, i.e. masking, social distancing, and the like. Initially we considered having the notary and witnesses stand outside her window, but then discovered that her window had a permanent screen, which would prevent the passing of documents back and forth.
The solution was for mother, the notary and witnesses to meet just outside her room on the patio, where there would be no obstruction by the window screen. The facility provided a large folding table, which permitted your mother to sit at the table, and for the notary and witnesses to move toward the table just to sign and to then move immediately back, a safe distance again, when their signing job was complete.
On Site and Remote Supervision: To make this work, my legal secretary was present during the entire session with her iPhone running Face Time while connected to my own I-Phone, allowing me to supervise the signing remotely from my home office. Both my secretary and I examined each signing page before moving on to the next document.
The Facility’s Cooperation: We were fortunate in having the cooperation of your mother’s facility, Baywood Court in Castro Valley. For the approximate two and half hours that the signing process took, it designated a staff social worker to be right there with us, and another tech with IT skills to facilitate the Zoom session with the Ombudsman. Kudo’s to Baywood Court!
So, it was a joint effort and everything fell into place. Your mother was very pleased, and actually so were we.