Elder Law Report
Elder Law Report
Securing Your Legacy with Electronic Estate Planning
Curious about the future of estate planning? Join us as Greg McIntyre and Jane Dearwester from McIntyre Elder Law guide us through the monumental shift from traditional paper documents to secure electronic documents. Discover how their innovative e-docs access system ensures the validity and security of crucial documents like wills and powers of attorney. From the nostalgic charm of handwritten letters to the modern efficiency of e-signature services like DocuSign and Dotloop, learn how technology is revolutionizing the legal landscape, enhancing the interaction between legal professionals and clients.
In another compelling segment, we discuss the practical advantages of organizing estate planning documents in a meticulously structured binder. We'll delve into the benefits of having clear instructions, a comprehensive list of assets, and securely stored passwords. The episode also introduces the eDocs access system, providing bank-level encrypted security for digital estate documents, enabling secure sharing amongst family members and trusted parties. Whether you prefer digital convenience or physical storage, the flexibility and security offered by eDocs ensure your critical documents are accessible whenever and wherever needed, especially in emergencies or while traveling.
Hi, I'm Greg McIntyre with McIntyre Elder Law and I'm here with fellow attorney Jane Derwester in our firm. Hey, jane.
Jane Dearwester:Hello there, hello from Hendersonville.
Greg McIntyre:Our topic today is electronic documents, specifically our e-docs access system and a discussion of security surrounding electronic documents, the validity of electronic or copies you know, in fact, similes of electronic or of estate planning documents, and how that could affect your ability to probate a will to use a power of attorney and sharing those documents with family members, as needed, or other third parties like banks and doctors. So that's a little outline of what we're going to talk about today and there's some interesting discussion to be had around this topic. You know the world, jane, has trended toward electronic communication. I wrote you a letter a week ago. Have you received it yet? I wrote it pen and ink and I sent it to you, absolutely not.
Jane Dearwester:I'll probably get it next month.
Greg McIntyre:I folded it up, you know. I looked at, closed it and I put I have this, this ring, okay, it's like it and I put I have this, uh, this ring, okay, it's like, it's like a game of thrones or something. Yeah, yeah, and I put I do them late at night.
Jane Dearwester:Like I get up, you like burn the wax.
Greg McIntyre:I go to sleep when the sun goes down, and then I get up in the middle of the night. It's called your second, and then I'd have my second sleep after that right, yes, but I get up in the middle of the night and that's really when I do my business and I burn a candle, I drip that wax it's a red candle onto the, to the envelope and then I seal it and close it and then I put it in the mail to people.
Jane Dearwester:Yes.
Greg McIntyre:Have you received that yet?
Jane Dearwester:No, Like I said, to get to Hendersonville from Charlotte it'll probably take a month.
Greg McIntyre:A month Okay.
Jane Dearwester:I don't have that yet.
Greg McIntyre:Well, oddly enough, I probably sent you 10 emails already today and you instantly received them. Okay, so the world is trending. I'm being facetious in that discussion, right? Although there is historical fact and interest on how people used to sleep and get up in the middle of the night and do their business by candlelight and then they'd have what's called the second sleep, and they'd also put letters in the mail and they'd send them by courier or mail carrier, right, and it took a while to get there. But, the world has changed.
Jane Dearwester:I was gonna say I had to actually remind our litigation team this is on topic, but a little off the side that they were trying to get ahold of a client. They said I've called, I've emailed. I cannot get in touch with this client. I said send them a letter. They said you mean like in the mail? I said yeah, like in the mail, like old boomer time, right Actually.
Greg McIntyre:I will sign it and we will put it in the mail to this person. Right, but anyone?
Jane Dearwester:under 40 might not think that that's an actual way that we communicate, because it seems antiquated.
Greg McIntyre:It seems antiquated. The world changes and shifts over time, right? Very few people actually eliminate all electronic devices in incandescent light and go to sleep when the sun goes down and then get up in the middle of the night for their business or whatever they need to do and then get their second sleep right. But that is an old school way that Google second sleep.
Greg McIntyre:You'll see that that's how we usually operate as human beings before the advent of incandescent light. But the world has changed. And to say that, if you're not really familiar with old school letter writing, oh, there's a whole formal process for letter writing. There really is. There's a format, there's a way you do it, there's an eloquence to it.
Jane Dearwester:Yes.
Greg McIntyre:The way people used to you know, be able to really articulate their thoughts. I think it's a lost art and I think it's kind of sad that I was thinking to that even attorneys do less and less written correspondence.
Jane Dearwester:Just in the course of my legal career, which is just over 20 years, I used to get a lot more attorney letters, like pen and ink letters, in the mail, whereas now it is 90 percent of my communications with opposing counsel are done via email or text message. And it's you know, when you get a letter from another attorney, something's up because they're they're reducing this to a written letter.
Greg McIntyre:That means there's a time to do a problem. Yes, there's something problem. Yeah, they're true.
Jane Dearwester:Yes, there's something going on, something serious.
Greg McIntyre:I would say in our business, if you're yeah. If you're not familiar with that, or if you're not an attorney, you know my, my, I preach this all the time in our firm. You know, if you're around me, is you know? Have you sent him a letter around me? Is you know? Have you sent them a letter? Have we followed that verbal communication up in writing?
Greg McIntyre:for the record, you know it's a great thing to have for the record. So we do that. In addition, I think the law is changing it has over the years surrounding electronic signatures on documents. Which is really the focus of our conversation today are the electronic versions of the documents. But you know, electronic signature when I think of that, jane, I think of e-docs.
Jane Dearwester:Not e-docs.
Greg McIntyre:Yeah, yeah, what's it called when e-sign, e-sign, docusign, docusign, docusign Realtors call it dot loop. When you're exchanging. Yeah, they have dot loop.
Jane Dearwester:There's e-sign. There's DocuSign, docusign, docusign. Realtors call it Dotloop.
Greg McIntyre:When you're exchanging, yeah, they have Dotloop, there's eSign, there's DocuSign, there's all these different versions of those programs out there or different providers, but essentially they're they're getting your geographic location. I know I've subpoenaed that information for when someone was arguing that they did not sign a document and I said, ok, we think you did, our client thinks you did, so you can pull that information and it's unreal how much information they have about that signing. It's arguable that that is more valid than a Penn and Eek signature, arguable from the standpoint of, in that case had a report from like docusign, okay, or one of those systems, and it had the geographic, like within a few feet of where that person was standing when they signed that document and it was their house, okay, it was that person's house. So it's kind of hard to argue. It wasn't me, it was like who's house. So it's kind of hard to argue. It wasn't me, it was like who else.
Jane Dearwester:So somebody in your house. It was like somebody who lived alone.
Greg McIntyre:It's like did somebody break in your house and and hack into your computer and e-sign this document? And why would they do that, Right? So it gets really hard when you pin somebody down to that and you know they had signed it, you know using their name right and typing it in, and now it's easier to to even get someone if they use or prove it was you and there might be really reasons why you would want to prove it was you. You wouldn't want to get off the hook for that.
Greg McIntyre:You want to say, hey, I signed this document, you know, yes, so with with something like an iPad and an Apple Pencil, right, I can sign my actual signature electronically on this glass pad, right? Yeah, it's not a piece of paper, but there's a representation of a piece of paper, a document underneath, and I sign this and it's got the location where I signed it, the date I signed, it's automatically recorded and it's my actual pen and ink signature at least an electronic version of that. Yeah, you could really argue that that is much more proof and substantial than someone pulling out a pen and a piece of paper.
Jane Dearwester:Yeah.
Greg McIntyre:Because of the other electronic evidence that surrounds the signing of it this way.
Jane Dearwester:Maybe it's more murky, it's more just, it's, he said. She said You're like hey, I signed it, you can trace the.
Greg McIntyre:IP address, the computer that was used, the device that was used, things like that right. All that data is there. You don't have that other metadata with an old school pen and ink signature right. Yes, so you know, obviously I've thought about this a bit and I've been down this road before and you know, I think there's a lot of arguments to move toward more electronic means of doing things because of that other metadata.
Jane Dearwester:Yeah, but I do. The pandemic really pushed all of us, whether we wanted to or not, into that electronic and digital zone, because it was weird time and we weren't getting together like we usually were, doing business like we usually were, and so that was the way that we continue to do business and that we continue to practice law. We even appeared in court virtually and signed court pleadings virtually. I mean, all these things have have.
Greg McIntyre:Why wouldn't? Why wouldn't a viewing of someone signing a will on electronic communication, like we're on right now?
Jane Dearwester:Yeah.
Greg McIntyre:And recording that video, like we are right now, especially with an electronic device where they can actually sign it and the metadata is there. Why wouldn't that be much more substantial than a wedding signature with two witnesses line of sight and a notary, and your notary can view electronically too. But you know there are I think the law is slow to catch up with those Of course, very slow, of course.
Jane Dearwester:Well, and we just got a notification beginning of this week that the e-notary statute has been renewed. It expired. It was kind of tacked on.
Greg McIntyre:I don't think it'll ever go away. They still call it the emergency notary, where you can do electronic notary notarization and there's an additional notarial page or at least different language with an electronic notary versus a traditional notary. But it's where a traditional notary can view something through. What I argue is simply a digital window, right.
Jane Dearwester:And they have to have an additional my understanding.
Jane Dearwester:I need to renew my notary, as a matter of fact, but my understanding is, for e-notary, the notaries have to have an additional level of certification. That's just not the base level. They have to take an extra course or have extra training to be able to do e-notary. And there is. There are steps involved and in our practice and elder law estate planning it can be vital to have that option because someone could be, you know, in a facility or in a very remote place where there's not time to get to them or get a notary to them.
Greg McIntyre:Can the law, can government keep up with the changing demands of society and the available technology to meet those demands? And I think that's the lag time.
Jane Dearwester:Yeah, there's always been lag time.
Greg McIntyre:Part of that. The biggest issue is a lack of understanding general electronic IQ, so to speak, of technology. Okay.
Jane Dearwester:Well, that was on full display. How?
Greg McIntyre:comfortable. They are with it the people that are making those regulations.
Jane Dearwester:I was on full display when attorneys had to learn how to do virtual court. So the attorneys that were like 50, 60 and over, they didn't like it.
Greg McIntyre:I've argued against it. They didn't like it. If I'm in the room with you it's a lot different than if I'm on the street. It is different. Fundamentally they didn't like it.
Greg McIntyre:Yeah, I would say a lot is lost in communication over an electronic format. Right, but as far as seeing your signature, I don't know. I guess there can be arguments made that you don't know who's in my. My issue with court and having a witness on the stand is I don't know who's on the other side of that computer. I don't know who's on the other side of that screen. I don't know what other computer they've got popped up and documents that are helping with their testimony. Right, you know, those are the issues that I have with electronic court and witnesses and the sanctity of a courtroom and keeping those things, ensuring truthful testimony that isn't coerced or assisted Right, but. But as far as electronic documents go, I think we've been ahead of the curve. I've tried to use technology where it's useful and old school, I'll tell you. I have so many people that come in with documents that are just in their hands or they're in folders or vanilla envelopes or shoebox or they're just all over the place. They're disorganized, the documents are, and I hate that.
Jane Dearwester:Yeah.
Greg McIntyre:I think they're so important because I know that you need an original will, pen and ink signature to submit to the court to be able to probate it. And you not only you, but as the client, but your loved ones who might, let's say, your executor if you die, your agent under a power of attorney, if you become incompetent or incapacitated need know, number one, that you have it, yes. Number two, where it is. And if they find it, is it going to be a jumbled mess of poo that they have to sort through to try to figure it out? Right?
Jane Dearwester:yeah, so you know they're like yeah, it's in the, it's in the drawer. Oh yeah, with your grocery list yeah, in your drawer. Yeah, it's in the drawer.
Greg McIntyre:Yeah, I mean, I prefer an organized estate planning binder where things are separated. I think you writing personally some directions and maybe a list of assets passwords, things like that are smart.
Jane Dearwester:Those are so important and having it all in a place that's very identifiable. These binders that we provide to our clients, not only do they look nice and look very official, but they really do serve a very practical purpose.
Greg McIntyre:Yes, they do. It's organization and it's ensuring that you know you're not spilling coffee and tea on it and the cat's not tearing up or whatever you know, I'd say that, but I have seen messes of estate planning documents.
Jane Dearwester:Oh yes.
Greg McIntyre:I mean things that, like rats, had gone through and everything else. I've had to go wash my hands multiple times during an inspection to get a case together. And you know, for my health and safety and sanity, please organize your estate planning documents and keep them organized and for yours right, just protection of the documents. And then we go a step further in providing technology called EDOX access, and that's a system that is a bank level encrypted security system. The reason I say that is there's actually a bank level standard encrypted security system standard. It meets and exceeds that. That's why I went with that system and why I use that term, because that is a known term, that bank level encrypted security level. That is where it meets and it's it. You know, it's the hctps connection. That is a secure connection, not just an http on a web address connection, and that system is designed to have fraud protections in it.
Greg McIntyre:If somebody's trying to get in and get your documents, to keep them out, yeah, and to allow you to set up a secure password where we scan and put your estate planning documents so that binder right there in the originals there will be a mirror of that and the legal work we do for you in that system and you, as the client, receive an email that says you know to set up your password. Yeah, I don't know your password. Nobody in our office knows your password. Right, you have the ability to get it on the back end and reset your password for you or allow you to reset it, but you set up your password. So it could be a husband and a wife that set up the same or separate passwords. And, jane, you were mentioning you might want to publish your estate planning documents to a family member, maybe your executor, your power of attorney, your agent under a power of attorney in healthcare and financial. Why might that be important? That they'd be able to have access to those?
Jane Dearwester:Yeah, something happens to you right when you're incapacitated, you're not in a position to give them the information, then they can act as your agent. Or if you pass away. Again, if they live out of state or out of the country, they don't have to come and look for your black binder, they just click on to the documents and we've had clients give incredible feedback of how convenient and grateful they are for that service. Especially here in Hendersonville we have a lot of retirees this is a huge retirement community and a lot of our clients loved ones. They don't live in Hendersonville. You know mom and dad or grandma and grandpa live here but they live in New York, ohio, california, florida. They live elsewhere. So it's not so easy to just pop over and grab the binder. That edox access can really be a lifesaver and you know that said too, we have clients here in hendersonville who don't want specifically ask do not put my documents, I don't want you might not want a loved one who's receiving assets to know what you're.
Jane Dearwester:They don't even want them digitized. They don't want the access they don't want you.
Greg McIntyre:We respect that. I tell them all the time. Hey, you don't have to.
Jane Dearwester:We don't have to do it, but it it's. It comes with our services.
Greg McIntyre:But let's say I have a son and a daughter and and you know little Susie, she's she's a doctor and you know she's great, she's smart and she's my healthcare agent. And little Johnny, you know she's great, she's smart and she's my healthcare agent. And little Johnny, you know he's. He's an accountant and he's going to you know he does a great job, he managed money and you know he's going to be my agent under a general, durable power of attorney for financial and legal purposes and they're both co-executors on my will. I love them and trust them. You know I want to share that with them. In our system, we would just simply send an email to each one of them where they set up their individual passwords and have access right With your consent, with the client consent right. I would have to consent to do that and ask to do that right, but we present that option.
Jane Dearwester:Yeah, like I said, most for the majority of people really, really appreciate that, and then there's a minority who says, nope, I just want the real thing, that's it, and so, of course, that's the client's choice.
Greg McIntyre:Sure Well, you know it's important that you do have the originals.
Jane Dearwester:Yes.
Greg McIntyre:But if I'm traveling, there might be a time where I need a health care power of attorney for my wife or that she needs one for me, and I'm not lugging my estate planning binder along with me, right? So therefore, she can log on right on her phone and show that or download it, email it. You send it to whatever entity needs it. It's a hospital at the beach. If it's a financial institution, right, you can manage those things electronically. And that's a hospital at the beach. If it's a financial institution, right, you can manage those things electronically. And that's the point. Yeah, so let's say, you lose the originals. I think that's another reason why that's super powerful.
Greg McIntyre:As long as the power of attorney is recorded at the register of deeds number one. It's there. That's an electronic copy that the government has. The government has.
Jane Dearwester:And if you need it to be more official, you can get a certified recorded copy. You can go physically to the register and give me a certified copy of it. If you lose the original, at least you got a certified copy.
Greg McIntyre:There's a statute in North Carolina. Essentially that says an electronic document that's signed a contract in a state. Planning document like that is as good as the original, so for powers of attorney that's great. Where we run into trouble is with trying to probate a copy of a will.
Jane Dearwester:Yes.
Greg McIntyre:It's assumed there's a presumption that you revoke the will. If somebody shows up at the courthouse after you die with a copy trying to probate it, it's presumed that you decided, hey, I want to destroy this original, I don't want, I've changed my mind. And then you might have heirs out there that have a copy and then try to probate it. So there's a presumption that you have to overcome and it's a high bar. There's certain elements you have to prove. I've done it, I've had those hearings to prove that and you have to get over that bar and have quite a bit of evidence to be able to show that the will was simply lost and it was unintentional, right. But at least that's another safeguard that if you did lose your original, that there'd be a place to go to get a copy.
Jane Dearwester:Yeah, right, that can be huge, right, that can be huge.
Greg McIntyre:It could be the difference between your will standing and passing assets or not being able to do that, right? Yeah, so it is a safeguard. So electronic documents and copies of those there's people who come down on both sides of that argument, but we think it's extremely important to offer that option of storage of those, and we do that free of charge for life for our clients and can't overstress the power, the importance of keeping the originals also, but the times they are changing and they and that will always be true, right, so we have to change with it as a government.
Greg McIntyre:You know, the government has to change, the laws have to change and we as attorneys have to change, and our firm, we aim to stay a step ahead. That's all we got to be. Jane is a half step ahead.
Jane Dearwester:Right Way to be.
Greg McIntyre:So anyway, thank you, Jane, for discussing this interesting topic with us.
Jane Dearwester:Thank you.
Greg McIntyre:Absolutely, and we'll see you next time on our Elder Law Report. All right.