Signing documents during COVID-19

During these times of national uncertainty, we want our former, current, and future clients to know that the attorneys at Lynn, Jackson, Shultz & Lebrun, P.C., are committed to serving our clients with any legal assistance they may need. The social distancing guidelines enacted by the CDC do prevent us from meeting with clients in person to address their needs and while it has always been preferred to meet in person, we have taken the necessary steps to ensure that our clients still receive the best legal service.

With the current state of affairs, we start by “meeting” with clients via teleconference or online videoconference meetings to discuss their legal needs. If a client’s specific needs involve drafting a contract or estate planning documents, we will email or mail a draft of the documents to the clients for review upon completion, and simultaneously schedule a follow-up teleconference to be sure the client’s questions and/or concerns are addressed prior to a brief appointment to finalize the same.

While taking every precaution for your safety and ours, we have been willing to meet clients in our parking lot for execution of legal documents. Within 24 hours prior to execution, we ensure that the attorney, witnesses (if necessary), and clients are healthy and taking the proper precautions according to the CDC guidelines. We keep contact with each other to a minimum. If possible, execution of documents is done outside of the office with the client remaining in his/her vehicle or other location outside of the office and all parties maintaining recommended distance away from each other in accordance with the CDC social distancing guidelines. In order to avoid any unnecessary contact, we pass the documentation to the clients in an envelope with stickers identifying where they need to sign.

Over the last several weeks, I have met with many clients to assist with execution of estate planning and other legal documents requiring a notary public. Because many of us have family members who may be susceptible to COVID-19, we take extra precautions by wearing masks during each conference. I have also taken extra steps by wearing medical gloves and a bandana covering my face during these conferences. While I may look like I’m about to rob a train in the Old West, I have peace of mind that my staff and my clients will be safe. Allowing clients the ability to execute documents in this manner also ensures that the clients are assured that Lynn Jackson truly cares about their health and safety.

Attorneys from Lynn Jackson have also taken other steps to address execution of legal documents. Where appropriate, we have inserted additional language into contracts that authorizes the use of electronic signing such as DocuSign for contracts that do not require notarization. With regard to documents that require notarization, South Dakota law authorizes notarization by means of communication technology, but with some limitations. See SDCL 18-1-11.1 and the blog posted by my colleague, Brian Baczwaski.

The Supreme Court of South Dakota realized that SDCL 18-1-11.1 may have some limitations during this pandemic. Therefore, on April 9, 2020, the Supreme Court of South Dakota executed an Emergency Order. There are two very important aspects identified in this Emergency Order. First, SDCL 29A-2-502 requires that wills are witnessed by “two or more individuals who, in the conscious presence of the testator, witnessed whether the signing of the will or the testator’s acknowledgment of that signature.” While the Emergency Order is in place during the COVID-19 pandemic, the term “conscious presence” is expanded to allow parties to communicate with each other by sight and sound and by communication technology for purposes of witnessing. When using communication technology, the pages containing the original signatures must be promptly mailed to the declarant or authorized representative.

The Emergency Order further provides that notaries and other persons qualified to administer an oath in South Dakota may swear a witness remotely by communication technology, provided they can positively identify the witness. This provides a substantial benefit to those individuals who may be more susceptible to COVID-19.

The attorneys at Lynn, Jackson, Shultz & Lebrun are here for you during this trying time in history. Whether you want to gain peace of mind with regard to your estate planning, finalize execution of contracts, discuss the Payment Protection Plan loans under the CARES Act, or simply have someone lend an ear, we are here for you.

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