HB 210 — Electronic execution of estate planning documents; codifies Uniform Electronic Wills Act.

Further, any adult capable of making an informed decision who has been diagnosed by his atteHding physician as being in a terminal condition may make an oral advance directive (i) (1) directing2the specific health care the declarant does or does not authorize in the event the declarant is inc0pable of declarant under the circumstances stated in the advance directive if the declarant should be determined to be incapable of making an informed decision.

An advance directive may authorize an agent to take any lawful actions necessary to carry outouH the declarant's decisions, including, but not limited to, granting releases of liability to medical providers, releasing medical records, and making decisions regarding who may visit the patient.

to medical2providers, It shall be the responsibility of the declarant to provide for notification to his attending physician that Carean Directiveadvance Registrydirective pursuanthas tobeen Articlemade. 9 (§ 54.1-2994 et seq.), it shall be the responsibility of the declarant to provide his attending physician, legal representative, or other person with the information necessary to access the advance directive.

InIf thean eventadvance thedirective declaranthas isbeen comatose,submitted incapacitatedto orthe otherwiseAdvance mentallyHealth orCare physicallyDirective incapableRegistry ofpursuant communication,to anyArticle other9 person(§ may54.1-2994 notifyet theseq.), physicianit ofshall be the existenceresponsibility of anthe advancedeclarant directiveto and,provide ifhis applicable,attending thephysician, factlegal thatrepresentative, itor hasother beenperson submittedwith to the Advanceinformation Healthnecessary Careto Directiveaccess Registry.the advance directive.

AnIn attendingthe physicianevent whothe declarant is socomatose, notifiedincapacitated shallor promptlyotherwise makementally theor advancephysically directiveincapable orof acommunication, copyany other person may notify the physician of the existence of an advance directive,directive and, if writtenapplicable, inthe afact writingthat orit otherhas record,been orsubmitted to the facIn the eventadvance thatdirective anyor portiona copy of anthe advance directivedirective, isif invalidwritten orin illegal,a suchwriting invalidity or illegalityother shallrecord, notor affectthe fact of the remainingadvance provisionsdirective, if oral, a part of the advancedeclarant's directive.medical records.

In the event that any portion of an advance directive is invalid or illegal, such invalidity or illegality shall not affect the remaining provisions of the advance directive.

ADVANCE MEDICAL DIRECTIVE I, _______________, willingly and voluntarily make known my wishes in the event that I am incapableincI ofunderstand makingthat my advance directive may include the selection of an informedagent decision,as well as follows:set forth my choices regarding health care.

choices regarding health care.

and HB210 4 of 12 The determination that I am incapable of making an informed decision shall be made by my HB210E 4 of 12 attending physician and a capacity reviewer, if certification by a capacity reviewer is required by law, after a personal examination of me and shall be certified in writing.

of 12 and to authorize my discharge (including transfer to another facility) from the facility.

[My physician or of 12 licensed clinical psychologist hereby attests that I am capable of making an informed decision Indand that I understand the consequences of this provision of my advance directive:

NG. cross-reference to other sections of directive] even over my protest.

[MyTo physicianauthorize orthe licensedspecific clinicaltypes psychologistof herebyhealth attestscare thatidentified Iin amthis capableadvance ofdirective making[specify ancross-reference informedto decisionother andsections that I understand the consequences of thisdirective] provisioneven ofover my advanceprotest. directive:

_______________[My ];physician or licensed clinical consequences of this provision of my advance directive:

R_______________ ];on and that I understand the H.

O I.

To authorize my participation in any health care study approved by an institutional revieDreview board or research review committee according to applicable federal or state law that offers the prospectprospectEof of direct theJ.therapeutic benefit to me;

ToJ. authorize my participation in any health care study approved by an institutional review board or research review committee pursuant to applicable federal or state law that aims to increase scientific understanding of any condition that I may have or otherwise to promote human well-being, even tEough it offers no prospect of direct benefit to me;

K.To authorize my participation in any health care study approved by an institutional revieN board or research review committee pursuant to applicable federal or state law that aims to increase Gcientific it offers no prospect of direct benefit to me;

or otherwise to promote human well-being, even though K.

and O L.

To take any lawful actions that may be necessary to carry out these decisions, including the granting of healthreleases careof pursuantliability to hismedical authorization,providers. based solely on that authorization.ot be liable for the costs OPTION III:

HEALTHFurther, CAREmy INSTRUCTIONSagent (CROSSshall THROUGHnot PARAGRAPHSbe Aliable AND/ORfor Bthe IFcosts YOUof DOhealth NOTcare WANTpursuant TOto GIVEhis ADDITIONALauthorization, SPECIFICbased INSTRUCTIONSsolely ABOUTon YOURthat HEALTHauthorization. CARE.) A.

IS specificallyOPTION directIII: that I receive the following health care if it is medically approprHate under the circumstances as determined by my attending physician:

HEALTH CARE INSTRUCTIONS (CROSS THROUGH PARAGRAPHS A AND/OR B IF YOU DO NOT WANT TO GIVE E ADDA.

I specifically direct that I receive the following health care if it is medically appropriate under the circumstances as determined by my attending physician:

2 B.

I specifically direct that the following health care not be provided to me under the foll0wingfollowing _______________.oucircumstances (you may specify that certain health care not be provided under any circumstances):

_______________.

END OF LIFE INSTRUCTIONS (CROSS THROUGH THIS OPTION IF YOU DO NOT WANT TO GIVE INSTRUCTIONS ABOUT YOUR HEALTH CARE IF YOU HAVE A TERMINAL CONDITION.) IfH at any time my attending physician should determine that I have a terminal condition where the application of life-prolonging procedures - including artificial respiration, cardiopulmonary resuscitation, artificially administered nutrition, and artificially administered hydration - would serve only to artificially prolong the dying process, I direct that such procedures be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.

(If you wish to provide additional instructions or modifications to instructions you have already given regarding life-prolonging procedures that will apply if you are pregnant at the time your attending physician determines that you havehavIf a terminal condition, you may do so here.) If I am pregnant when my attending physician determines that I have a terminal condition, my dec______________________________________________________________asdecision concerning life-prolonging procedures shall be modified as follows:

______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________:

(If you wish to provide your own directions, or if you wish to add to the directions you have given above, you may do soartificial here.respiration, cardiopulmonary resuscitation, artificially administered nutrition, and artificially administered hydration, this is where you should write them.) I direct that:

If you wish to give specific instructions regarding certain life-prolonging procedures, such as administered hydration, this is where you should write them.) I direct that:ered nutrition, and artificially ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ ______________________________________________________________;

______________________________________________________________ ______________________________________________________________ HB210 6 of 12 ______________________________________________________________;

HB210E 6 of 12 In the absence of my ability to give directions regarding the use of such life-prolonging procedures, it is my intention that this advance directive shall be honored by my family and physician as the final expression of my legal right to refuse health care and acceptance of the consequences of such refusal.

(Date)_________________________________________________ (Signature(Date)(Signature of Declarant)___________Declarant) Date:

"Personal representative" includes the executor under a will or the administrator of the estate of a decedent, the administrator of such estate with the will annexed, the administrator of such estate unadministered by a former representative, whether there is a will or not, any person who is under the order of a circuit court to take into his possession the estate of a decedent for administration, and every of 12 other curator of a decedent's estate, for or against whom suits may be brought for causes of action that of 12 accrued to or against the decedent.

I "Trustee" means a trustee under a probated will or an inter vivos trust instrument.

N"Will" includes any testament, codicil, exercise of a power of appointment by will or by a writing in the nature of a will, or any other testamentary disposition, including an electronic will within thegthe inmea§ meaning64.2-403. of Article 7 (§ 64.2-459 et seq.) of Chapter 4.

T § 64.2-403.

requirements.requirements.pter 4.

R A.

D B.

A will wholly in the testator's handwriting is valid without further requirements, providedprovidEd that the twofact disinterestedthat witnesses.na will is wholly in the testator's handwriting and signed by the testator is proved bUby at least C.two disinterested witnesses.

AN willC. not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent wiEnesses who are present at the same time and who subscribe the will in the presence of the testator.

A will not wholly in the testator's handwriting is not valid unless the signature of the Gestator is who are present at the same time and who subscribe the will in the presence of the testator.

DR D.

For the purposes of this subsection, "electronic" means the same as that ter§term 64.2-404.is defined in § 64.2-459.

S § 64.2-404.

S A.

Although a document, or a writing added upon a document, or a record was not executed in compliance with § 64.2-403 or 64.2-462, as applicable, the document or, writing, or record shall be treated as if it had been executed in compliance with § 64.2-403 or 64.2-462, as applicable, if the proponent of the document or, writing, or record establishes by clear and convincing evidence tHatthat the decedent intended the document or, writing, or record to constitute (i) the decedent's will, (i2)(ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) 0a partial or complete revival of his the decedent's formerly revoked will or of a formerly revoked portion of the will.

For the purposes of this subsection, "record" means the same as that term is defined in §f§ the 64.2-459.

The remedy granted by this section (i) may not be used to excuse compliance with any requirement for a testator's signature, except in circumstances where two persons mistakenly sign each other's will, or a person signs the self-proving certificate to a will instead of signing the willwHll itself and (ii) is available only in proceedings brought in a circuit court under the appropriate provisions of this title, filed within one year from the decedent's date of death and in which all interested persons arearehis mad§made 64.2-407.parties.

Validity0 of§ other64.2-407. wills;

civilValidity penalty.of other wills [ ;

A.civil penalty ] .

NotwithstandingE the[ provisionsA. of § 64.2-403, the a will of a person domiciled out of the Commonwealth at the time of his death shall be valid as to personal property and real property in the Commonwealth if the will is executed according to the law of the state or country in which the person was so domiciled in compliance with the law of the jurisdiction where the testator is (i) physically located when the will is executed or (ii) domiciled or resides when the will is executed or when the testator dies.

This] sectionNotwithstanding the provisions of § 64.2-403, the a will [ of a person domiciled out of the Commonwealth at the time of his death ] shall notbe applyvalid as to apersonal property and real property in the Commonwealth if the will is executed electronically,according to the law of the state or country in which shallthe beperson governedwas byso domiciled in compliance with the law of the jurisdiction where the testator is (i) physically located when the will is executed or (ii) domiciled or resides when the will is executed or when the § 64.2-459.64.2-461.

For purposes of this section, "electronic" means the same as that term is defined ininverned B.by § 64.2-459.

[ B.

The clerk of the circuit court of any jurisdiction shall be immune from suit arising from any acts or omissions relating to probating a will pursuant to this section unless the clerk was grossly negligent or §engaged 64.2-450.in willful misconduct.

Probate] ofWhen a will relative to an estate within the Commonwealth has been proved in another jurisdiction, an authenticated copy of the will provedand outsidethe certificate of probate of the Commonwealth;will may be offered for probate in HB210E 8 of 12 the Commonwealth, and there shall be a rebuttable presumption that the will was duly executed and admitted to probate as a will of personal estate in the jurisdiction of the testator's domicile and the circuit court, or the clerk of such court, where it is offered shall admit such copy to probate as a will of personal estate and real estate in the Commonwealth.

authenticated copy.

HB210 8 of 12 When a will relative to an estate within the Commonwealth has been proved in another jurisdiction, an authenticated copy of the will and the certificate of probate of the will may be offered for probate in the Commonwealth, and there shall be a rebuttable presumption that the will was duly executed and admitted to probate as a will of personal estate in the jurisdiction of the testator's domicile and the circuit court, or the clerk of such court, where it is offered shall admit such copy to probate as a will of personal estate and real estate in the Commonwealth.

Choice of law regarding execution;execution [ ;

civil penalty.penalty ] .

[ A.

] Notwithstanding the provisions of § 64.2-403, a will executed electronically but not in compliance with § 64.2-462 is an electronic will under this chapter as to personal property and real property in the Commonwealth if executed in compliance with the law of the jurisdiction where the testator is (i) physically located when the testator signs the will or (ii) domiciled or resides when the testator signs the will or when the testator dies.

[ B.

] § 64.2-462.

Signed in the physical or electronic presence of the testator by at least two competent witnesses, each of whom is a resident of a state and physically located in a state at the time of signing, after witnessing the testator's signature under subdivision 2 or the testator's acknowledgement of the signing of the will under subdivision 2 or the acknowledgement of the will, and each of whom is in the physical of 12 or electronic presence of each other;

Acknowledged by the testator and the attesting witnesses before and in the physical or elIctronicelectronic of 12 presence of an electronic notary public, as defined in § 47.1-2, or other individual authorizedNbyauthorized by law to notB.notarize records electronically, in the manner set forth in § 64.2-465.

AnB. electronic will shall contain the following statement:4.2-465.

"Virginia[ lawAn (§ 64.2-459 et seq.) does not permit an electronic will toshall becontain revoked by a revocatory act taken against or on the originalfollowing orstatement: a copy of the electronic will.

An"Virginia law (§ 64.2-459 et seq.) does not permit an electronic will mayto bRbe revoked by a revocatory only by a subsequent will or codicil or other writing as provided in § 64.2-464 of the Code of Virginia." Failure to include the foregoing statement shall not affect the validity of an electronic will.

Intent of a testator that the revocation pursuant to subdivision B 1 of § 64.2-463.64.2-464 be the testator's electronic will may be established by extrinsic evidence.

] § 64.2-463.

DE The provisions of § 64.2-404 apply to an electronic will.

A.§ 64.2-464.

Revocation.

N A.

UG B.[ 1.

AllA subsequent will or partcodicil ofexecuted anin electronicthe manner required by law or other writing executed in the manner in which a will is revokedrequired by:to be executed that expressly revokes all or part of the electronic will;

Cor 1.O 2.

A subsequent will or codicil executed in the manner required by law orthat othercontains writingprovisions execEtedinconsistent inwith the mannerelectronic inwill, whichto athe willextent isof requiredsuch toinconsistency, beif executedthe thatlater expresslywill revokesor allcodicil oris parteffective ofupon the electronicdeath will;of the testator.

orS DC. 2.

A subsequent will or codicil executed in the manner required by law that contains provisions inconsistent with the electronic will, to the extent of such inconsistency, if the later will or codicil is effC.

§1. 64.2-465.

A subsequent will tha2.

A physical act, if it is established by a preponderance of the evidence that the testator, with the intent of revoking all or part of the will, performed the act or directed another individual who performed the act in the testator's physical presence.

] § 64.2-465.

An electronic will shall be made self-proved at the time of its execution by either the acknowledgment thereof by the testator and the affidavits of the attesting witnesses or the H acknowledgment thereof by the testator and the attesting witnesses, each made before an electro2icelectronic notary public, as defined in § 47.1-2, or other individual authorized by law to notarize record0recordH in § 47.1-2, or such other individual's electronic notarial certificate, attached, annexed to, or logically associated with the electronic will and bearing the electronic notary public's electronic notary seal, as defined in § 47.1-2, or such other individual's electronic notary seal.

COMMONWEALTH OF VIRGINIA CITY/COUNTY OF _____________________ Before me, the undersigned electronic notary public, or other individual authorized by law to _____________,notarize knownrecords toelectronically, meon tothis beday theappeared testator_____________, _____________, and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn,sworn,signed _____________, the testator, declared to me and to the witnesses in my physical or electronic presence that said instrument is his last will and testament and that he had willingly signed or directed another to sign the same for him in his physical presence, and executed it in the physical or electronic presence of said witnesses as his free and voluntary act for the purposes therein expressed;

that said witnesses stated before me that the foregoing will was executed and acknowledged by the testator as his last will presence and attestament his request, and in the physical or electronic presence of eachsaid other,witnesses didwho, signin theironichis namesphysical theretoor aselectronic attestingpresence witnessesand onat thehis dayrequest, ofand in the datephysical ofor saidelectronic will,presence thatof theeach testator,other, atdid thesign timetheir of the execution of said will, was over the age of 18 years and of sound and disposing mind and memory,memory,time of and that each of said witnesses is a resident of a state and was physically located in a state at the time they signed their names to said will.

In the case of an electronic will made self-proved by the acknowledgment of the testator and the affidavits of the attesting witnesses, the signatures of the testator and the attesting witnesses and the electronically,jurat shallof bethe substantiallyelectronic asnotary followspublic, inor formother andindividual content:byauthorized by law to notarize records Testator:electronically, shall be substantially as follows in form and content:

Testator:

________________________________________ Witness:Signed, sworn, and acknowledged before me by _____________________, the testator, and signed HB210E 10 of 12 and sworn before me by _____________________ and _____________________, witnesses, this __________ day of _______________, A.D., __________.

SIGNED ________________________________________ Signed,Electronic sworn,Notary andPublic acknowledgedOr before[Official meCapacity of Other Individual Authorized by _____________________,Law to Notarize Records Electronically] In the testator,case andof signedan andelectronic swornwill beforemade meself-proved by _____________________the acknowledgment of the testator and _____________________,the attesting witnesses, thisthe __________jurat day of _______________,the A.D.,electronic __________.notary public, or other individual authorized by law to notarize records electronically, shall be substantially as follows in form and content:

Electronic Notary Public_______________________ HB210 10 of 12 Or [Official Capacity of Other Individual Authorized by Law to Notarize Records Electronically] In the case of an electronic will made self-proved by the acknowledgment of the testator and the attesting witnesses, the jurat of the electronic notary public, or other individual authorized by law to notarize records electronically, shall be substantially as follows in form and content:

§ 672(c), with respect to such current beneficiary, or (c) an individual trustee whose legal obligation to support a beneficiary may be satisfied of 12 by distributions of income and principal of the first trust;

or (iii) is an identified charitable oforg"Charitable 12interest" organizationmeans an interest in a trust that will(i) oris mayheld receiveby distributionsan underidentified thecharitable termsorganization ofand makes the trust.organization a qualified beneficiary;

"Charitable(ii) interest"benefits meansonly ancharitable interestorganizations inand, aif trustthe thatinterest (i)were is held by an identified charitaIlecharitable organizationorganization, andwould makesmake the organization a qualified beneficiary;

(ii)or benefits(iii) onlyis held solely for charitable Npurposes and, if the interest were held by an identified charitable organization, would make the organization a qualified beneficiary;benEficiary.

or"Charitable (iii)organization" ismeans held(i) solelya person, other than an individual, organized and operated exclusively for charitable purposes and,or if(ii) thea interestgovernment wereor heldgovernmental bysubdivision, anagency, identifiedoN charitableinstrumentality, organization,to wouldthe makeextent thethat organizationit holds funds exclusively for a qualifiedcharitable beneficiary.purpose.

"CharitableG organization"promotion meansof (i)health, a person,municipal other than an individual, organized and operatRd exclusively for charitable purposes or (ii)other a government or governmental subdivision,purpose, agency, or instrumentality,another topurpose the extentachievement thatof itwhich holdsis fundsbeneficial exclusivelyto forthe acommunity. charitable purpose.

OR "Charitable purpose" means the relief of poverty, the advancement of education or religion, Dhe promotion of health, a municipal or other governmental purpose, or another purpose the achievement of whi"Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in § 64.2-723.

C "Conservator" means a person appointed by the court to administer the estate of an adult indEvidual.individual.

"Court" means the court of the Commonwealth having jurisdiction in matters related to trusts.trustsS "Current beneficiary" means a beneficiary that on the date the beneficiary's qualification is determined is a distributee or permissible distributee of trust income or principal.

"Current beneficiary" meansperson that is a beneficiary thatonly onbecause the dateperson theholds beneficiary'sany qualificationother ispower determinedof isappointment.ncludD a distributee"Decanting orpower" permissiblemeans distributeethe power of an authorized fiduciary under the Uniform Trust Decanting Act (§ 64.2-779.1 et seq.) to distribute property of a first trust incometo one or principal.more second trusts or to modify the terms of the first trust.

"Current beneficiary" includes the holder of a presently exercisable general power of appointment but does not include a per"Decanting power" means the power of an authorized fiduciary under the Uniform Trust Decanting Act (§ 64.2-779.1 et seq.) to distribute property of a first trust to one or more second trusts or to modify the terms of the first trust.

"Electronic" means relating to technology having electrical, digital, magnetic, wireless, opHical,optical, electromagnetic, or similar capabilities.

2 "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance rel0tingrelHting to pro"Expanded distributive discretion" means a discretionary power of distribution that is not limited to an ascertainable standard or a reasonably definite standard.

0 "First trust" means a trust over which an authorized fiduciary may exercise the decanting power.

education,"Guardian" means a person appointed by the court to make decisions regarding the support, care, litem.ion, health, and welfare of a minor or adult individual.

The term does not include a guardian ad litem."Guardian of the estate" means a person appointed by the court to administer the estate of a minor.

"Guardian of the estate" means a person appointed by the court to administer the estate of a minor.

"Power"Powerholder" of appointment" means a powerperson thatin enableswhich a powerholderdonor actingcreates in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointmentappointment. over the appointive property.

"Power of appointment" doesmeans nota includepower that enables a powerpowerholder ofacting attorney.in a nonfiduciary capacity property.

"Power of appointment" does not include a power of attorney.of appointment over the appointive "Power of direction" means a power over a trust granted to a person by the terms of the trust to the extent the power is exercisable while the person is not serving as a trustee.

"Power of withdrawal" means a presently exercisable general power of appointment other than a power exercisable by a trustee that is limited by an ascertainable standard, or that is exercisable by another person only upon consent of the trustee or a person holding an adverse interest.

"Presently exercisable power of appointment" means a power of appointment exercisable by the powerholder at the relevant time.

"Presently exercisable power of appointment" includes a power of appointment exercisable only after the occurrence of a specified event, the satisfaction of an HB210E 12 of 12 ascertainable standard, or the passage of a specified time, only after (i) the occurrence of the specified event, (ii) the satisfaction of the ascertainable standard, or (iii) the passage of the specified time.

powerholder's"Presently death.leexercisable power of appointment" does not include a power exercisable only at the HB210powerholder's 12death. of 12 "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.

"Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.