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MSBA’s Estates & Trust and Elder Law Sections co-hosted a virtual town hall meeting on April 2, 2020. The meeting, Dealing With COVID-19: What Estate’s & Trust and Elder Law Attorneys Need to Know, drew 250 participants, and covered a range of subjects. It is expected to be followed up by additional discussions as the emergency continues to unfold.

The meeting opened with a discussion of issues surrounding the execution of planning documents now that social distancing is both a legal and a medical imperative. Estate planning attorney Elsa W. Smith (Law Offices of Elsa W. Smith, LLC) offered a review of the differing execution and witness requirements for documents most in demand during the COVID emergency: wills, revocable trusts, durable powers of attorney and advanced medical directives. Ms. Smith pointed out, for example, that Maryland law does not provide for electronic execution of a will, but does allow it for an advance medical directive. The law with respect to each instrument was described in detail.

Building on this foundation, estates and trusts litigator Kelly Preteroti (Baker Donelson), discussed some potential pitfalls for unwary lawyers rushing to provide documents to clients during the crisis. Ms. Preteroti cautioned against taking shortcuts that may lead to future challenges to the documents based on alleged incompetency, undue influence or an invalid execution. In her view, vetting clients for capacity, cognition and undue influence remains a priority. She also discussed the pros and cons of some of the document signing practices now being employed by attorneys, such as drive-thru execution, sending the documents with detailed instructions for the client to execute on their own, and in-person signings with clients, witnesses and attorneys separated by glass partitions. Additional suggestions are to be posted on the MSBA website as the bar continues to develop best practices with regard to document execution.

Ms. Smith and Ms. Preteroti fielded questions, many relating to the interpretation of the Governor’s order authorizing remote notarization, before yielding to the Elder Law Section and Megan Rusciano (Disability Rights Maryland). Ms. Rusciano addressed the impact of COVID on the rights of the elderly and disabled community. She discussed an individual’s right to treatment and care at a time when some are threatening to ration it, and the right to visitation at healthcare facilities during periods of mandatory lockdown. The need for advocates to think creatively to develop solutions to problems facing this population was also discussed, and information on reporting alleged violations was provided.

Lorie Mayorga, MDH Deputy Director for Eligibility Policy, reported on the changes to Maryland Medicaid eligibility, and newly approved prohibition against disenrolling eligible participants during the COVID-19 emergency. She also touched briefly on the application process.

The meeting can be heard in its entirety at here.