Can Medical Directives be Executed in Compliance with Social Distancing Guidelines?
Many of our clients are taking the time to evaluate their Durable Power of Attorney and Medical Directives while facing this COVID-19 pandemic. One question we hear with regularity, “Should I just wait until the shelter at home is lifted since I can’t sign my documents with the required legal formalities?” The answer is “don’t let that be a hindrance, as we have work-arounds that are fully compliant with statutory requirements and give our clients peace of mind.” Some clients may have executed Do-Not-Resuscitate Directives in the past. With the Coronavirus and the possible need to use a ventilator for recovery, they may want to revisit prior Medical Directives. By executing an updated Advance Directive for Health Care and Do-Not-Resuscitate Authorization they can affectively authorize a health care proxy to execute or withdrawal a Do-Not-Resuscitate on their behalf. Another useful medical directive is the Medical Durable Power of Attorney. This document can be executed for the purpose of authorizing a designated agent to provide personal care, residential placement and medical treatment as a principal’s agent may deem appropriate. This Medical Durable Power of Attorney does NOT require formal adjudication of incapacity.
The Medical Durable Power of Attorney may at the principal’s option address long term or hospice care, remaining in the personal residence as long as safely possible, employing healthcare personnel, pain relief, and a list of concerns that may be addressed in this document is endless and maybe tailored to each clients needs and desires.
Since both of these documents must be signed and notarized, the concern is how to do so with as little human contact as possible. Oklahoma is one state that has adopted the Remote Online Notarization procedure which can be used for the execution for either the above referenced documents (note this Act was just enacted on January 1, 2020).
In order to utilize this Notary procedure, you must use a Notary Public who has obtained the Remote Online Notarization authorization from the Secretary of State. In performing the remote online notarial act, the Notary must reasonably verify the identity of the principal, must ensure that communication technology is secure from unauthorized interception and must indicate upon completion that the Notary was a “Remote Online Notarization involving the use of communication technology.”
In addition, there are traveling Notaries that will appear at a client’s location, obtain two forms of identification and observe the signing of the documents and place their signature thereon. This form of execution of the documents lends itself more conveniently when witnesses are required.
Lastly, we have execution of documents by what we call the “drive-by” method. In this model, the principal, witnesses, and notary, meet at a given location and paperwork is exchanged within site of those that must observe, with appropriate precautions taken for the safety of all participants.
Given the tools that are available to assist clients with their concerns regarding their medical care and treatment in light of the Coronavirus, there are several options which can be employed to give them peace of mind and at least on one front help them to relieve some of the stress created by the pandemic of our time.