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Remotely Located Witnesses on Wills and Other Estate Planning Documents

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by Jody H. Hall

A few weeks ago, I shared an overview of remote notarizations in Colorado.  The Governor’s executive order suspending the requirement for a notary public to be physically present with the signer, along with the emergency notary rules surrounding a notarization via real-time audio-video communication issued by the Colorado Secretary of State, have given practitioners the ability to help their clients execute estate planning documents in a safer environment during the pandemic, and for the future.  However, while the ability to notarize documents remotely has proven helpful, estate planners were still faced with the particular challenge involving the execution of documents that require witnesses, and how to execute a fully signed, notarized and witnessed original Will.

Earlier this year, the Colorado Supreme Court promulgated Rules 91 and 92 of the Colorado Probate Rules allowing for the remote witnessing of certain specified documents.  See here.  These rules were effective immediately and are in effect during any period of a public health crisis declared in Colorado requiring physical and social distancing.  Rule 91 details the procedure for remote witnessing of certain non-testamentary documents, including living wills, anatomical gifts and medical powers of attorney.  Rule 92 allows for remote witnesses on last wills and testaments.

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Fiduciary Lessons from…Lance Armstrong?

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by Jean Stewart

Lance Armstrong, the road cycling legend who recovered from testicular cancer to win the grueling 2-week European bicycle race known as the Tour De France seven times has recently been revealed as a failed fiduciary. 

In his two-part interview last week with Oprah Winfrey, Lance reports that among the hardest punishments so far meted out to him, is the decision of his Livestrong Foundation, the cancer research and victim’s support foundation that has raised and distributed millions to cancer causes, to ask him to step down as the Chairman and a member of the Board after the doping evidence piled up against him. 

 Every time we paid $1 for one of those iconic yellow rubber bracelets we were supporting the foundation in Lance’s fiduciary hands.  By all reports, he was a fiduciary in the cycling world alike, as the leader of the several world-class teams he headed over the years.  We invested him with fiduciary powers and his spectacular fall from grace teaches us some simple lessons about assuming positions of trust.   

Some fiduciary lessons from Lance:

  1. If you breach a fiduciary duty, admit it as soon as you can—to yourself and to those who have been harmed or disappointed by your actions;
  2. Take steps to amend your breach promptly; eventually you will be found out and it will look worse and be harder to fix the situation;
  3. Don’t engage in name calling or accusations against those who have tried to bring your breaches to light; they usually get the last word;
  4. Step aside voluntarily from your fiduciary positions if it appears you will be forced to do so by the people you have wronged or by an independent fact-finder; and
  5. Put aside some funds; you will probably need to pay some people back.