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Addressing Barrier Presented by COVID-19 to the Execution and Utilization of Valid Estate Planning Documents

Colton F. Castro, Douglas J. Elmore, Ric Gregoria, & Alyssa L. Shook

On March 9, 2020, Governor Ron DeSantis declared Florida in a state of emergency due to the spread of the COVID-19 virus. As of March 20, 2020, the Florida Department of Health has confirmed over 500 Florida residents have tested positive for the virus. Due to the spread of COVID-19, Williams Parker recognized that sick individuals faced a barrier to the execution and utilization of valid estate planning documents for their healthcare, financial, and family needs in the event of their illness, incapacity, or death during this state of emergency. 
 
Under current Florida law, witnesses to the execution of: (i) a Last Will and Testament, (ii) a revocable trust with testamentary aspects, (iii) a healthcare advance directive, (iv) a living will, and (v) a durable power of attorney conferring upon an agent certain estate planning powers, are required to be in the physical presence of the Florida resident executing his or her estate planning documents. Such a physical presence requirement is a significant barrier to any individuals showing symptoms of COVID-19. It would be difficult, if not impossible, for such individuals to exercise the “social distancing” and “self-quarantine” guidelines of the federal and state government, while also being in the physical presence of others as currently required by Florida Statutes in order to execute their estate planning documents. 
 
Although new Florida Statutes Section 732.522 will permit the electronic and/or remote attestation of various estate planning documents, this statute will not become effective until July 1, 2020. As a result, until July 1, 2020, Florida residents acting in compliance with the recommendations of the CDC, White House, and other governmental agencies during the public health emergency arising from COVID-19 may be effectively prohibited from executing estate planning documents because of the witness physical presence requirement.  
 
Accordingly, Williams Parker formulated a solution to the problem during this state of emergency by drafting an Executive Order for the review and proposed issuance by Governor Ron DeSantis. Such Executive Order would advance the effective date of new Florida Statutes Section 732.522 from July 1, 2020 to the date of issuance of such Executive Order, so that the residents of Florida under this current state of emergency may execute estate planning documents by and through electronic and/or remote attestation. 
 
Williams Parker will keep Florida residents apprised of any updates to the witness physical presence requirement of the above documents during this state of emergency. In the interim, Florida residents are urged to review their estate planning documents to confirm that such documents dovetail with their current intentions and ensure peace of mind. 


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