By Nikol Nesterenko, Jonathan Chernoguz, and Sarah Hooper
Advance care planning — the process by which an individual documents their wishes for health care in the event that they become incapacitated — has become particularly urgent during the COVID-19 pandemic.
However, individuals that wish to engage in advance care planning, and specifically to document their plans in a written form (i.e., advance directives), have faced significant hurdles due to legal execution requirements. State advance directive law often requires or presumes live, in-person witnessing or notarization, actions which were prohibited by social distancing orders or simply unsafe during the pandemic.
In this piece, we summarize the state of remote execution requirements for advance directives before and during the COVID-19 pandemic. Broadly speaking, while many states took some action in this regard, most did not enact comprehensive changes, and therefore failed to meaningfully facilitate remote execution of advance directives.
Prior to the pandemic, only 18 states had laws enabling remote execution of advance directives. Of these, six states had legislation recognizing online execution of advance directives. By “online execution” we mean form completion using digital signatures, witnessing via audiovisual means (e.g., Zoom), e-notarization, or other such technology. The remaining twelve states recognized asynchronous execution. By “asynchronous execution,” we mean the ability for individuals to sign and date advance directives at a different time and place than their witness/es or notary, for instance by signing a paper form and then mailing it to witnesses, or having each witness sign in counterparts.
In response to the COVID pandemic, leaders in 28 states and the District of Columbia attempted to address these gaps in the law through legislative action or executive orders. Of those, only 9 states passed comprehensive legislation to clarify all or most aspects of remote execution of advance directives. Nineteen states and the District of Columbia enacted temporary legislation or issued executive orders. Most states addressed one aspect of execution (e.g., notarization), but not other aspects (e.g., other witnesses). The most common change was to recognize e-notarization.
Most, but not all, states require advance directives to be witnessed in order to be valid. Twenty-two states require witnesses to execute an advance directive, while twenty-three states allow individuals to choose whether to use witnesses or a notary. Three states, North Carolina, South Carolina, and West Virginia, require both witnesses and a notary for the document to be valid. Meanwhile, Idaho and New Mexico recommend the use of witnesses but do not strictly require them.
Prior to the pandemic, nine states recognized remote witnessing. Of those, eight states (Alaska, California, Georgia, Hawaii, Mississippi, North Dakota, Oregon, and Wyoming) permitted asynchronous witnessing. Florida was the only state to recognize online witnessing.
During the pandemic, seventeen states took any kind of action to recognize remote witnessing. Indiana enacted legislation to allow online witnessing through audiovisual or telephonic (audio-only) means. Michigan and North Carolina passed similar legislation, however, those laws sunset June 30, 2021, and December 31, 2021, respectively. Governors in fourteen states and the Mayor of the District of Columbia signed executive orders to permit online witnessing to execute advance directives. These orders were issued under emergency authority triggered by the pandemic and will terminate when the emergency ends. Two states, New York and Ohio, are considering legislation to permanently allow remote witnessing.
To be legally valid, advance directives must be signed by the individual creating them. Currently, only five states recognize digital signatures. Prior to the pandemic, four states (California, Illinois, Maryland, and Texas) allowed individuals to digitally sign an advance directive through encrypted software that stores the individual’s information and can be used to verify their identity. During the pandemic, Indiana followed suit. However, recognition of digital signatures by itself may not permit fully remote execution. For instance, in California, notarization is required for electronic advance directives, but e-notaries are not recognized within the state.
Most states permit notarization as an alternative to witnessing, while a few require it in addition. Historically, notaries have been required to meet in person with an individual to verify their identity and watch them sign or acknowledge a directive. The notary must stamp and sign a wet seal on the form for it to be recognized as validly notarized.
E-notaries are an emerging alternative wherein notaries provide secure audio-visual software through which individuals can verify their identity and upload their documentation for an electronic notarial certificate. Prior to the pandemic, only five states recognized remote notarization in legislation: Florida, Kentucky, Minnesota, North Dakota, and Ohio. During the pandemic, e-notarization became a popular tool, with an additional nine states passing legislation (Alaska, Arkansas, Hawaii, Indiana, Iowa, Kansas, South Dakota, Washington, and Wyoming). Most of these states passed general remote notarization laws, which do not explicitly address advance directives but do not exempt such forms either. Governors in eleven states (Arkansas, Colorado, Kansas, Maine, Mississippi, New Hampshire, New Jersey, North Carolina, Rhode Island, Tennessee, and Texas) signed executive orders permitting this option, though these orders are temporary and some have already ended. California has pending legislation to permit the use of remote notarization in response to the difficulties of obtaining notary services during stay-at-home orders.
Diverging Approaches and Perceptions of Risk
Though few states have undertaken concerted, comprehensive action to address remote advance directives, two states- Indiana and Florida- illustrate a likely fault line in policymakers’ approaches and perceptions of risk around this issue. Namely, whether online execution presents a greater risk of fraud and abuse than traditional, in-person execution.
Indiana’s new statute offers an extensive list of options to execute an advance directive, including traditional in-person execution, audiovisual execution with witnesses or a notary (e.g., via NotaryCam or similar service), or telephonic (audio-only) execution with two witnesses. This approach retains the state’s commitment to witnessing and notarization requirements, but expands the means by which individuals may satisfy them and embraces the use of technology.
In contrast, Florida enacted much narrower legislation reflecting a deep mistrust of online execution methods. The Florida statute permits remote witnessing only under the supervision of a notary, and only for individuals not deemed “vulnerable adults” under the statute. Notaries must present individuals with a series of questions, to which a positive answer will disqualify the individual from being able to execute a directive remotely. These questions include whether a person has a disability or whether the person “requires assistance with daily care.”
This approach would seem to exclude broad categories of individuals on the basis of disability and other categories without regard to the much narrower, and more legally-relevant, question of their medical decisional capacity. This exclusion suggests a belief that individuals with disabilities, and others deemed vulnerable, are at greater risk of abuse and exploitation when executing advance directives remotely than when doing so in person. There is currently no evidence for these assumptions, nor for the assumption that execution requirements have prevented in-person advance directive fraud or abuse to date.
Conclusions and Recommendations
COVID-19 has pushed states to consider easing advance directive execution requirements through remote notarization and witnessing laws. These are important advancements and, in most cases, will provide a broader range of options for individuals for whom traditional methods are impracticable or unsafe. However, most states’ efforts, to date, have not been sufficient to provide enduring clarity on these issues. More states should take comprehensive action to clarify remote execution options in an increasingly online world.
Additionally, policymakers will need to consider critical issues of access and equity alongside concerns about security and abuse. Execution requirements pose barriers to underserved populations, who are already less likely to engage in advance care planning. Simply moving existing execution requirements online will provide greater access to some populations, but deepen barriers for others with low tech access and literacy. The Uniform Health Decisions Act developed in 1993 by the Uniform Law Commission did not contain execution requirements beyond an individual’s signature and date. No evidence exists that witnessing or notarization has deterred or prevented advance directive fraud, nor that such fraud, even if significant or pervasive, has resulted in harm that could not have been perpetrated without the directive.
To the extent that states are committed to these requirements, policymakers should formally recognize the full range of remote execution options in the spirit of reducing barriers to advance directive access. Such options should be accessible to people with disabilities, those who are socially isolated, those with access only to a landline or smartphone, and those with low health and legal literacy. The COVID-19 pandemic emphasized the urgency of advance care planning, and while some states have taken legislative action, much more needs to be done to ensure that every person can have a voice in their care.
Nikol Nesterenko is a J.D. Candidate at University of California Hastings College of the Law and a research assistant for PREPARE.
Jonathan Chernoguz is a J.D. Candidate at University of California Hastings College of the Law and a PREPARE Legal Research Fellow.
Sarah Hooper, JD is the Executive Director of the UCSF/UC Hastings Consortium on Law, Science & Health Policy and Lecturer in Law at UC Hastings College of the Law.