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Desperate Times Call For Innovation

New York expands standby guardian statute and permits video witnessing of estate planning documents.

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First online notarization, then the legalization of surrogacy, now an expansion of the standby guardian law and authorization of video witnessing of estate planning documents. Governor Andrew Cuomo of  COVID-19-stricken New York is a gift not only to trusts and estates attorneys, but to all citizens.

Cuomo’s recent Executive Order No. 202.14 pertains in part to New York State healthcare workers exposed to COVID-19 who can now designate a standby guardian for their minor children. The New York Legal Assistance Group and Greenberg Traurig, LLP, who worked pro bono on the modification, helped to draft the expansion of the Surrogate’s Court Procedure Act (S.C.P.A.) § 1726.

Generally the statute allows an individual to appoint a standby guardian if the parent/guardian:

  1. A) becomes incapacitated; (B) becomes debilitated and consents to the commencement of the standby guardian’s authority; (C) becomes subject to an administrative separation and consents to the commencement of the standby guardian’s authority as required pursuant to the provisions of subdivision seven of this section; or (D) dies prior to the commencement of a judicial proceeding to appoint a guardian of the person and/or property of an infant.

Executive Order 202.14 expands the statute to include a parent or legal guardian, custodian or primary caretaker “who works or volunteers in a health care facility or who reasonably believes that they may otherwise be exposed to COVID-19, may designate a standby guardian by means of a written designation.”

A standby guardian is appointed by a written statement executed by a serving guardian/parent or alternatively by court proceeding. Because courts are closed or operating on limited schedules, a standby guardian statement is important not only for the gravely ill, or debilitated, but those who are on the front lines, fighting COVID-19. At a minimum their inclusion in the statute  provides peace of mind that if something were to happen to them, their children will be cared for.

Generally, a last will and testament dictates the guardian choice for one’s minor children in the event a parent or parents die. The last will also nominates an individual to control the minor’s assets. If one dies, a last will is filed with the local probate court and the nominations for executor, trustee, and guardian are reviewed and then authorized by the court. A standby guardian document permits immediate control to pass to the standby guardian who has no powers until a triggering event happens. In cases of incapacitated, severely ill, or deported parents, this is important to execute.

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Historically S.C.P.A. Section 1726 was created as a result of the AIDS crisis, in 1992. Recently, in 2018  it was extended to immigrants who were at risk of being separated from their children because of deportation or detainment. The statute’s reference to  “administrative separation” pertains to the latter.

Within the same executive order, Cuomo has allowed the video witnessing of estate documents including statutory gifts riders, last wills, and trusts. Video notarization had been addressed in a prior executive order, however, many estate planning documents require witnesses, not just notary acknowledgements. Many a law school class and bar exam question focus on the tenets of Estates Powers and Trust Law (E.P.T.L.) Section  3-2.1 and the requirements for the in-person witnessing of wills, While other states have allowed electronic wills, New York has not.

Cuomo’s executive order remains in effect until May 7, 2020, and it permits signing of these important documents, before videoed witnesses, in the safety of one’s own home. The famous saying “Desperate times call for desperate measures” might be rewritten in today’s scenario to suggest that New York’s interpretation is “Desperate times call for innovative measures.”

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at [email protected].

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