Legislature passes e-wills bill
The Legislature has voted overwhelmingly to approve the use of video technology and remote notarization for the online execution of wills and other legal documents.
With only days left in the 60-day session, the Senate voted 39-0 on May 2 to send the proposal — HB 409 by Rep. Daniel Perez, R-Miami — to the governor’s desk.
The bill would allow notaries to affix their seal and signature to legal documents that are not signed in their physical presence — if they witness the signature via live, two-way video links.
Third-party witnesses needed for wills and other documents could also appear remotely.
Supporters, including the Elder Law Section, say the proposal will increase access to legal services at a time when most Floridians don’t have a will, or bother with estate planning.
“This is a bill that essentially brings the law of signing documents in Florida into the year 2019,” Perez said at an initial committee stop. “It allows the signing of documents to be conducted entirely electronically online via remote presence through video — through the stringent, strict standards that still exist today when it comes to notaries.”
Shortly after the bill was rolled out, the Academy of Elder Law Attorneys’ Shannon Miller assured critics that vulnerable Floridians would be protected.
“We see this as progress,” Miller said. “The important parts of the bill from the elder law perspective are that it does not apply to vulnerable adults. They’re excluded. So the idea that someone would be able to go into a nursing home and take advantage of these vulnerable adults, that is actually not someone who is allowed to engage in remote witnessing.”
Some lawmakers complained the move would make it too easy for adult children to sell an incapacitated parent’s home without permission.
Rep. Ben Diamond, D-St. Petersburg, tried unsuccessfully to add an amendment that would have removed wills and powers of attorney.
“Members, we have worked so hard over the years to take steps to protect vulnerable adults and elderly people because of the unique demographics of our state,” Diamond said. “I have a concern that with this bill we may be taking a step backward.”
At the request of the Real Property, Probate & Trust Law Section, sponsors agreed to prohibit the use of video technology to execute “super powers-of-attorney” — documents that give the holder the ability to amend wills, trusts, estates and other documents.
The controversy is nothing new.
Two years ago, former Gov. Rick Scott vetoed “The Electronic Wills Act,” saying it failed to strike the proper balance between convenience and safety. His veto message pointed to remote notarization provisions that he claimed didn’t “adequately ensure authentication of the identity of parties to the transaction.”
The latest version requires notaries to question witnesses directly and to demand standard forms of identification that can be confirmed through various online platforms.
Rep. Joe Geller, an attorney and a Dania Beach Democrat, said he was reassured by many of the safeguards. However, he said he is worried that giving Florida notaries greater online powers would open Florida courts to a flood of challenges from out-of-state litigants.
“Do you really want to clog Florida’s overburdened court system with cases that really don’t exist here?” Geller said. “To me, really, this is a question of … jurisdiction.”
Perez said the same threat exists now.
During a final debate, Perez reminded his colleagues that there is no progress without risk.
“The truth … is that we can regulate bad policy, but we can never regulate bad actors,” Perez said. “Nothing is 100% bullet proof and, no, I cannot guarantee you that there will not be bad actors who will take advantage of this bill.”