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ChimpChat S1:E3 — Interview with Samantha Fitzgerald

In this video, we talk with Samantha Fitzgerald, of the Law Offices of Samantha J Fitzgerald, Samantha is the Co-Chair of the Broward County Bar Association Wills, Trusts and Estates Section. She talks about how COVID-19 has impacted estate planning and probate, how the current pandemic has impacted people’s fears, and the importance of proper planning.


Welcome everybody to the next interview chat where we interview business and community leaders and thought leaders and industry experts on various things that are going on in their life today. We are joined by Samantha Fitzgerald of the Law Offices of Samantha J. Fitzgerald. She is Estate Planning and probate attorney where she helps individuals with their state plan on what’s going to happen to their assets and situations, and healthcare surrogates. She’ll talk more about that as we go. Welcome to the show Samantha. Good morning, Jeff. Thank you for having me. I’m really excited to be here and getting some information out to the public during these weird and crazy times. Okay, so these are weird and crazy times to write and how what are you seeing your business as you’re helping people with the eventuality of death? What are you seeing from your clients and prospective clients people calling your office as far as fears concerns regarding what’s happening with covid-19 and Coronavirus? So, we’ve seen a lot we have been really busy clients are concerned. Obviously that they may become sick from this virus or they may actually die. Clients that have already done their estate planning their wills and trusts and health care surrogates durable Powers of Attorney. There are reconsidering them making sure that they’re okay seeing if they need to make any changes to them for those Clients that happens on this planning, they are eager to do it. A lot of times people procrastinate and doing this and now they’re seeing that this is very relevant and they’re wanting to come in quickly and get these documents executed and signed interestingly clients are now not only thinking about their own demise, but the demise of beneficiaries that they’ve named in their documents, And what happens there? And what’s the next step? So, some clients have been contacting us to make those changes as well? Okay. So as far as the multi-generational component of that, I mean, I assume that’s part of the normal process of doing your paperwork or do a lot of people sort of just they make those assumptions that that’s going to be fine regardless. So, I think what happens is when you’re doing your planning some of it is almost pretend. Okay. Now we do plan on all of these contingencies, but it’s hard for people to really think through what if my children predecease me what happens then but now it’s more real for people because it’s in your face every single day and people are taking it more seriously. So even though they may have planned for some contingencies in their documents now, they’re rethinking that and saying well, is that really what I want or wow, I didn’t really think my childhood predecease me, but now it’s a real possibility because maybe they have underlying health conditions or they’re in living in an area that’s highly affected by this virus. So, it’s just making them think things through a little bit further and at least revisiting what they’ve done in their documents previously and they may have done their documents a long time ago so, this is now very real and present for everyone. How long often should people be updated documents in general. So that sort of depends. There’s no one answer that fits for everyone, you know, every couple years you should at least be thinking about your documents and think, you know has anything changed that requires a change in the actual documents, but anytime something big happens in your life and in your family, so if there is a marriage a divorce a death a birth You know, you’ve come into a lot of new assets anything like that. You definitely should be at least calling your lawyer and asking, you know, if anything needs to be changed. So, have that open line of communication. Hopefully your lawyer stays in touch with you because that reminds you to be thinking of these documents, but for the most part at least our office, unless one of those big life events happens, you know the documents that we prepare. Do anticipate lots of changes happening. So, most of our client’s documents don’t have to be changed very often at all. Unless you know, something major is happening. If one thing consider if you have a falling out with somebody that you’ve named in your documents, you certainly want to remove them, but when you’re doing these documents you always want to have as many alternate people in there named that you can because if the first person is unavailable, Are sick, they predeceased you they just simply refuse to serve then it would go on to the next person. So, if you can name a couple of alternates, it’s always a great idea. Gotcha. Um, so getting back to the covid-19 fears that people are having what other things have people been doing because obviously in your business people need to be present to sign their paperwork, and I know that the courts have allowed for remote notaries, but they still have to be present to sign their paperwork. I mean what precautions are they taking what precautions are you taking to make sure that people are able to do that. I mean are you stable to do business as normal in that capacity? So, I’m going to answer that kind in two parts on a back it up a little bit from the actual initial meeting that we’ve had with clients. So, we our office is really lucky. We’re very tech savvy and a lot of us work at home on a regular basis. So, we Are all completely connected and capable of continuing business as normal within our office. We’ve been having mostly Zoom or FaceTime or Skype meetings with clients for meetings that don’t require signing documents. And that’s been working fantastic everybody for the most part. Everybody’s either got a computer or an iPhone or a tablet that can connect to one of these services and they’re really easy to use and from younger clients up. to older clients. It’s been working out great so we can see each other face to face. It’s really been working very well. And if not, you know, we can always talk on the phone because we want to be here for our clients and we want to be able to service them and get these documents prepared and signed for them to ease some of their anxieties and as difficult time. So as far as signing documents, that’s definitely one of our biggest challenges. You mentioned the remote online notary and Not really effective for our business now. So that law has been passed and it’s kind of two parts. There’s the remote online notary and then there’s electronic document signing. So, the electronic document signing for wills and trusts is not applicable until July of this year. So, we don’t have that technology yet. And even the remote online notary rule that has been passed although it’s been passed. There’s you have to sign up with a service provider because you can’t do that through Zoom or Skype or any of those normal video chat Technologies. It has to be through a special company that has signed up with the state and has special requirements. And apparently, we have not found any companies that are actually offering the service. So even though we could remotely witness and notarized a power of attorney or durable. Sorry durable, power of attorney a health care. Surrogate, there’s no companies that are actually offering the service. So now we can’t do it at all. The Supreme Court has loosened some regulations for certain things like taking an oath of a witness that has to appear in court or via deposition. They are allowing notaries to take that oath via. Zoom and other video Technologies, but so far. It’s been limited to things like that. We’re anticipating or hoping at least this may be expanded because something has to happen. So, for what we’ve been doing now is we are either arranging for a mobile notary to visit the client’s home and they will bring Witnesses with them as well. If the client doesn’t have any Witnesses because most of our documents required three people two witnesses and a notary. That’s a lot of It’s definitely you know challenging we’ve been we feel that under the rules. We are an essential business for what we provide and if clients are comfortable with doing it. We’ve still been having them come into the office to sign your documents because we feel this is really important for them to sign these documents in the event something happens to them. We want to have this in place clients have been fine with coming in. We you know obviously are taking precautions inside the office with cleanliness. and Enos sure everything’s white down and trying to limit meetings to you know, short a time as possible. We have limited staff in our office. We only have one or two people coming in at a time. The rest of the staff is working at home remotely. So we’ve been making it happen for clients one way or the other we will make sure that they are able to sign these documents every day is kind of a day-by-day basis everyday things are changing and we’re just having to adapt To continue to service our clients to hear anything from you know State officials are as far as expanding the opportunities to do these sorts of things remotely or there’s no word as of yet where it’s just formed just like hoping for the future nothing yet. There’s been a lot of radio silence because everybody is dealing with the same problem that nobody’s ever dealt with something like this before. It’s impossible. Yeah. Everybody’s just scrambling. The courts there are certain people that are in charge of Distributing information. So, I am the co-chair of the wills trusts and Estates section of the Broward County bar. So, any information, you know, that that we are obtaining from higher op. We’re Distributing to our section members and most counties are doing similar things. I did just hear there was an order passed yesterday or this morning. The courts are going to start using Zoom to conduct their hearings because that’s been very up in the air as well. The essential hearings have been continuing like first appearance and Marchman math act hearings and Baker acts and those things that just are very time sensitive and have to continue. You know what? I think what I do is I think is important and you know the probate world but unfortunately is definitely low on the totem pole because there are other things that are just more important so the courts are still in session but on a limited basis and we obviously can’t physically attend any hearings. So we’re just kind of waiting and seeing and they to or trying to figure things out and they’re trying to get ramped up so that they can handle these things more electronically to keep the A flow moving so think things will start speeding up soon. But as far as you know, signing documents with Witnesses and notary is not in the physical presence of one another we have not. Anything the statute actually requires for a will for instance that you the witnesses and the notary’s all be physically present with one another there has been modification to that statute for the remote online notary and the electronic Wills, but it has to be within that specific law, which is a explained before is not even possible now. So, every day we’re just waiting and seeing so Basically, we have no nothing new is the new normal and we don’t know what the changes are going to be. We’re just hoping that they’re going to do something, but we don’t know when that’s going to be. All right, that sounds like Everett. Yay. Pivoting a little bit. I know one of the things that you do is healthcare service and those types of documents talk about what that is and especially now how that is even more important than it ever was. These documents are super important health care surrogate and a durable power of attorney. They kind of go hand in hand. A healthcare surrogate is a document where you appoint somebody to be able to make Healthcare decisions for you. If you’re unable to make them for yourself in that document often times is a HIPAA release which is giving somebody access to your medical information your medical records and possibly a living will which is where you decide ahead of time what you would want to have happen if you’re ever being kept alive on life support on machines basically, so what if you don’t have a health care surrogate, there is a list of people set forth in our statutes that can make medical decisions for you. It may not be the person you want to make medical decisions for you or if somebody has equal rights, for instance. If we’re talking about your adult children, you may have four children. What if they don’t agree so having a health care surrogate is really crucial so that you can Use the person that’s best suited to make decisions for you and you can eliminate any disagreements and fighting amongst your family. The HIPAA release that’s in this document is really key because even though the statutes allow for somebody to make decisions for you. It does not override the federal HIPAA regulations, which is the medical privacy act. So even though somebody can make a decision for you. They technically have no access to your medical information, which is weird, but that’s long making decisions in the dark. Exactly. And if you know God forbid, you’re taken to a hospital and you want to call up and find out what’s going on with your family member. Technically they shouldn’t speak to you. Maybe you get somebody nice on the other end or somebody who just doesn’t know the law and they speak to and give you information. But technically they’re not supposed to so having that document is really key. It. Also, lets people know what your wishes are. So, in the event you’re being kept alive on life support because something bad happens, it tells people what your wishes are people your family isn’t guessing what’s even more so important is the counterpart of that. Document and that’s durable power of attorney. So, this covers financial matters, everything other than medical issues medical decisions. This allows somebody to continue paying your bills to talk to people on your behalf, like your insurance companies medical house. They can talk to FPL on your behalf. They can talk to your credit cards on your behalf. They could sell property. They can refinance a mortgage. They could buy property such. Crucial document in the absence of this document the only way somebody can help you is to petition the court to become your court-appointed guardian. Not only is that horrible under normal circumstances, but good luck actually, you know getting somebody appointed in these times when we don’t even know what you’re doing. So, it’s crucial to have these documents in place. Let’s say you were in the middle. selling your home or property during this time and this covid-19 hits and you’re incapacitated. You’re sick. Something happens who can continue on with effectuating that sale nobody unless you have a durable power of attorney in place even between spouses if you own a home and you know, some you’ve lost your job because of this virus and you need to refinance your mortgage or get a second mortgage get it. Line credit something and one spouse is incapacitated. Well, the other spouse cannot do any of that without both signatures. So, if you had a durable power of attorney, you could continue on with things like that. These documents are crucial now. They’re really important at all times. But now they are crucial to have in place. Okay. So, let’s talk about the next side of what you’re doing and how that’s been impacted by COVID. We already kind of What about the probate and how now while you perceive what you do is being critical and important. They’re obviously having to prioritize things in the world in a different way based on the fact that people are not simply operating at a and hundred percent was already backlogged. Anyway, so now it’s just going to create even more on your side on the probate things. What are you seeing both from what you’re doing in your office and how that’s being impacted in dealing with the court systems? And what probate is in general for the for those that are watching that don’t know what probate is. So, probate is a court procedure that’s required. To transfer your assets. That’s what it is. It’s an asset transfer system. It’s only required for those assets that don’t pass some other way. So anything that names a beneficiary passes directly to the beneficiary doesn’t go through probate anything that’s jointly owned with somebody with rights survivorship automatically pass us to the Joint owner and anything that’s titled in a trust passes according to the terms of the trust doesn’t have to go through probate or the court system. So, if you haven’t already done your estate planning you absolutely should do planning and plan to avoid probate at all costs not only is a time-consuming and expensive. But look at where we are now. I’m administering some trust that we continue business as normal, you know, whatever we need to do with the assets inside the trust we can continue because we don’t need any Court approval or supervision. People who have probate cases probative states to completely different story as you said before the courts were already backlogged. But now we don’t even know what’s happening. We have gotten very little guidance from the court because they also don’t know what to do. We are continuing to submit our pleadings with the cases and we’re not actually still setting hearings, which were not allowed to put End but we’ve been told to continue to set them and that if everything’s in order the judge will sign our orders. So, we had a hearing scheduled this Tuesday yesterday morning. Everything was submitted. We haven’t heard anything. It’s difficult to communicate with anybody because they’re inundated with calls and emails from the public wanting to know what’s going on. So we’re hoping to receive our orders, but when we have no idea and if something Thing is missing from the file, which is very common just because of the nature of you know Court proceedings and sometimes you’ll every judge kind of runs things a little bit differently and sometimes they want something that you don’t anticipate and it’s very common. If there’s any little thing missing, they’re not going to sign the order and then we have to wait. Or somebody to communicate with us then we have to get what they’re asking for We have to send it back to them and then we have to wait for the order to be signed. So, these cases are going to be significantly delayed which affects a lot of things, you know, for instance if let’s say your mom died and she had a home and there was a mortgage on it. Well who’s paying that mortgage while we’re waiting for an Executor which we call the personal representative to be appointed that can access the decedent’s money and continue paying these bills. So either a beneficiary needs to pay these things out of pocket and hopefully get reimbursed some point or they just have to stop paying it which, you know probably won’t result in a foreclosure but will definitely result in an additional costs and fees incurred by the estate. Some things are more crucial than that, like what if you have a business, know, what if they’ve seen an owned a business and that needs to be ongoing but nobody has Ready to make payroll or sign contracts or make decisions on behalf of the estate and the business so and even more so crucial are those attorneys that handle guardianship cases, which we don’t but it’s very similar to the probate cases these Guardians need money when you have a guardianship the assets are restricted there in bank accounts that you have no access to without a court order. So those things are crucial. So, you know not the same as a first appearance for somebody who’s been arrested but you know, these cases are also important and hopefully we’re going to start seeing things moving a little quicker as everybody, you know gets more up to speed with zoom and these online platforms where we can continue the cases. Again, I assumed there’s absolutely no feedback at this point for the powers that be on when things are going to sort of normalize and kind of create that systems of standardization. I mean, you’re just hoping nobody knows, you know every day, you know, we’re hearing bits and pieces from all sorts of different places and that’s part of the problem that this is so vast that it affects so many people so many businesses and industries and segments. Everybody’s trying to figure it out. So, it really is a day-by-day basis, you know, the courts don’t want to be any more about God than they are our judges work really hard the court staff works really hard. So, this is just compounding all of that. So, they want to stay up to speed so I know they’re working behind the scenes and really hard they just it’s impossible for them to communicate with everybody as to what’s going on. A I think we will start seeing some movement very quickly. We just don’t know what it is. So, it’s literally a day-by-day basis. We’re waiting for some direction. I’m a longer they wait the more backlog they will become and so it feels like it’s sort of this vicious cycle that they’re creating for themselves by not taking action quickly because again, they were already backlogged and it’s for example A lot of my clients everybody has gone remote in some capacity either fully remote or partially remote you were already sort of working remote be in your business everybody happy option that opportunity already. So that wasn’t a major change to your day-to-day operations from a pure workflow perspective, most businesses were not set up that way even if they had some Cloud already set up and I’ll be talking to some it people in this interview series talking about that stuff anyway, but They had not really experienced this and so everybody is operating at 30 40 50 percent of what they were before while they’re still figuring out the nuances of their day-to-day even flying. Champ where everything was removed. Everybody was able to work remotely. It’s still not we’re still out of hundred percent. We’re at 90-95 percent and it’s not the same and so my concern for anybody who does anything in the legal department, you know, whether it’s estate probate or any other area where there have to deal with the courts on any kind of you know regular basis. There it’s going to take time for whatever they needed to shift to for them to get up to speed and I don’t even know what they’re going to do to kind of get through the backlog. I mean the patent office they were already 18 months behind. It’s astonishing the ripple effect. This is going to happen at this ultimately this currently two weeks. Now that we’ve been experiencing what’s going on here is going to impact things for four years a huge ripple effect. She said yeah and really, you know, the courts should have been more up to speed with technology. But you have a lot of factor. Yeah, there’s you know government there’s budgets the courts are underfunded to begin with like really seriously underfunded and that’s an issue. That’s not really in everybody’s face. Unless you’re in the legal Community, but our courts are severely underfunded which results in the backlog which is why you should at all cost try to avoid probate by doing your estate planning and Stay out of the court system, you know keep your stuff private. So, you know kind of shame on them for not being more up to speed. We should have had video hearings capabilities before now. I do believe that they are doing their best to get up to speed because they realize they have to implement this now. It’s just that they’re behind the eight ball because they never had it set up before so I’m sure that they’re working feverishly. Lie to get it up and running but you also have two different entities that lot of people don’t realize you’ve got the Judiciary and then you’ve got the clerk of courts. And they are two completely separate bodies. Sometimes they don’t play well in the sandbox sadly and that causes a lot of issues on a normal basis. So, I have no idea what’s going on with them now, but they have to work together to make this happen. For instance. We have a few different types of hearings in the probate world where one of them is called an ex parte hearing for those of us that don’t live. Litigate like me. This is the majority of the hearings that we set an ex parte just means that there’s not an adverse party there. We said a hearing we show up the attorney shows up and we tell the judge what we need and the judge hopefully signs our order but that process involves the judge which is the Judiciary and a clerk who sits in the courtroom with the judge, but that clerk works for the clerk of And that clerk is the person that receives all of our filings which everything is e-filed. So that’s great. You know, they move to that several years back. So that is really help thank goodness that that shift happened because we’re still able to file everything that we need to file and they can still be sitting there working on the other end validating our filings and processing things from that perspective so that clerk make sure that everything is there in the file that they need they help the judge with the paperwork. They make all of the certified copies that we require so they have to work together. It’s impossible to do those types of hearings without both organizations working together. So not only do you have the technology issues, but you have you know, two completely different bodies having to coordinate and figure out how they’re going to do this together. One thing. I will give to Broward County kudos to them. We can order certified copies of orders online. I’m not sure if any other county that does this, I know our neighboring counties Palm Beach County and Dade County do not offer this capability. So, this is fantastic as soon as the order is put on the docket at the click of a button, we can get a certified copy, which is awesome. Because otherwise you’re literally waiting you have to order it through the mail. You have to wait for them to actually make it for you and mail it back to you. So, under normal circumstances that could take a month under this current fire situation who know so I’m glad to be practicing in Broward County. At least. I mean, I guess all things being equal, but you know look at the huge rally. The bright side of that one. I mean I didn’t realize that there was that separation between the Judiciary and the clerk of courts and how much of a kind of a quagmire that created for the implementation of the technology and I should give kudos to at least our Broward County judges. We have three fantastic judges judge Powell judge green and judge Gillespie. They work really hard. They are just excellent judges. And so, we’re very lucky and Broward County to have them. I know that they’re working as hard as they can to move things along and ensure this, you know judicial process proceeds and everybody has access you know to the court system. So, I’m looking forward and anticipating some good news soon. Hopefully, do you have any other feedback on how your business and the overall estate planning probate world is impacted by coronavirus COVID that I haven’t really kind of a store. We haven’t really touched upon. I think we’ve touched upon you know, most of the issue’s takeaways are do your documents because not only is it crucial now to have your durable power of attorney and health care surrogate in place. You absolutely want to plan to avoid the court system and that is all very doable with beneficiary designations and transferring assets into a trust. It’s great to have on an everyday basis, but even more crucial under times like this. And you know, this may not be the only time we experience something like this. This may be a common issue going forward who knows Bill Gates. Let’s hope you’re wrong on that one. Geez. Wow, the harbinger of death Bill Gates did a Ted Talk on this very issue. We are still operating as normal kind of it’s our new normal now, but we are still fully operational where you can use video technology the old-fashioned telephone some in-person meetings when it’s necessary, you know to sign documents or we can send notaries these remote out to clients that don’t want to travel or venture out so we can still absolutely make this happen and people now more than ever should be taking this seriously, and I know my office is very flexible with payments because I know a lot of people are struggling now financially or they’re nervous about what’s going to happen to them how this virus going to impact them financially. So, we are offering payment plans to clients. We accept credit cards. We’re being very flexible with clients because not only do we want help them and be there for them, but we know that this is so crucial for them to have in place. So, we want to be flexible and make sure that we offer options for our clients to be able to get this. I am also offering a free health care surrogate to anybody in Broward County that doesn’t already have one I posted on Facebook. About this. So, if you haven’t done your planning and you just want to get a health care surrogate, because that will give you some peace of mind now. They can email text or call our office and we’d be happy to provide that to them and one tip I would give for everybody if nothing else make sure you have beneficiaries names on all your financial accounts and that includes life insurance retirement plans at work or independent IRAs checking accounts savings accounts and Vestment brokerage every kind of financial account should have a beneficiary named and an alternate beneficiary names. Okay, that’s incredible, that’s great tips, but I’m going to repeat what you mentioned that you’re offering. Did. I hear you correctly a free health care surrogate for anybody who needs it during these difficult times. Yes, it did live in Broward County. So if they request we may expand that now we’re offering it to anybody who lives in Broward County absolutely free hundred percent health care surrogate, which would include the HIPAA release and living will in that document as well and we can do everything remote. So, nobody has to leave their home if they don’t want to and that does not be notarize so it only requires two witnesses one of which can be brought blood related. So that’s usually not that hard to find two people that can witness that document for you. So it’s much easier you can sign up and but then you can walk it over your neighbor like walk away from your neighbor and be like, hey you sign it you saw me do it at 10 yards away six feet away or whatever it is. So, you can kind of get these signs agree completely safe and not have to Kind of have any contact with anybody that’s amazing. It’s incredibly generous offer. So certainly, you know, knock on wood. I already had my setup. So it doesn’t apply to me but that that’s incredibly generous with so thank you to you and your office for offering that to people just during this time of need say have to thank you so much for joining us today and thank you for helping me and formation. Yeah, be safe and if you have Any final seconds or tidbits that you want to share now is the time now. I think we covered everything I do, and we did a pretty good job of covering everything. So, thank you so much. Be safe, and we’ll talk to you soon. Thank you. Same to you.

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