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The Social Security Administration and E-Signature Problems

Electronic signature laws during the COVID-19 pandemic are playing a more significant role than ever before. The laws outlining acceptable electronic transaction standards that have the same effect as paper and ink signatures are the state Uniform Electronic Transactions Act (UETA) and the federal Electronic Signatures in Global and National Commerce Act (E-SIGN).

The US Social Security Administration (SSA) is struggling to modernize its IT infrastructure to support the American people’s current and future workloads, including e-signature acceptance. There are significant and ever-increasing service requirements and data storage responsibilities. The data includes sensitive information, susceptible to hacking, on nearly every citizen in the US, whether living or deceased, including their medical and financial records. While the SSA encourages agency interaction through their various online services, the truth is the agency’s outdated and poorly integrated computer systems make modern methods of e-signature acceptance a problem.

What is an e-signature? It is quite simply a digital file or symbol that attaches to places on an electronic file or contract, guaranteeing a person’s intent to sign the file or contract. E-signing has different formats. A signer can type their name into a signature area; they can paste in a scanned version of the signer’s signature, click on the “I accept” button, or even employ cryptographic scrambling technology. The security of these e-signatures varies across the formats.

What is a digital signature? This type of signature is considered more sophisticated and secure than the e-signature counterpart. This form of signature uses digital identification to authenticate the signer, which then becomes electronically bound to the document using encryption. Programs such as DocuSign, SignNow, Adobe, and others, offer easy ways to create a digital signature securely.

The National Federation of the Blind (NFB) and four individual plaintiffs are suing the SSA for their refusal to accept electronic signatures. The advent of COVID-19 is precluding many Americans who have compromised immune systems from applying for disability benefits because their existing condition makes them especially vulnerable. The argument is that the safest way for these at-risk individuals to apply is to fill out an online application at home with an e-signature since leaving home or interacting with paper mail presents an avoidable danger.

In the case of Timothy Cole, currently being treated for non-Hodgkins lymphoma, he is unable to submit his application for disability benefits because he plans to hire an attorney to help him navigate the complicated application process. Why would hiring an attorney preclude the SSA from accepting an application for disability benefits? Ultimately Mr. Cole is unable to submit his application online because the attorney or other authorized representative must sign a paper copy of their client’s application. So even though it is allowable for Mr. Cole to e-sign his application, his attorney may not even though the SSA maintains an online application process where e-signatures are reportedly secure, accessible, and federally approved.

The lawsuit is also seeking that the court order the SSA to permit blind people to fill out their Supplemental Security Income (SSI) application online. The SSA explicitly disallows blind people from applying online for this benefit. The lawsuit further asks the court to require e-signature acceptance on paperwork when a current beneficiary is subject to a CDR or continuing disability review.

The president of the National Federation of the Blind Mark Riccobono states, “The Social Security Administration regularly interacts with hundreds of thousands of blind people and other consumers with disabilities. Yet policies like this one persist, although the SSA has both the authority and the capability to accept electronic signatures. It is both unlawful and unconscionable that this agency continues to place blind and disabled consumers at a severe disadvantage, especially during a life-threatening global pandemic. The government should innovate, not discriminate.”

Therein lies the disconnect of expected service with the SSA. While consumers are looking for innovation and ease of use, the SSA’s continued dependence on outdated technology creates a focus on the behemoth project to migrate to a relational database that can allow for hardware alternatives with greater performance and interoperability at a much lower cost. Beyond these hardware infrastructure updates, data modernization and consolidation, and application modernization must also experience updates to be user friendly. Until these updates are in place, the SSA can expect to contend with more lawsuits as e-signatures become a need rather than a want during the COVID-19 pandemic.

If you have questions or would like to discuss your particular situation, please don’t hesitate to reach out.

How COVID-19 is Influencing Seniors to Update Their Wills

Kaiser Health News is reporting the coronavirus pandemic is prompting seniors to create or modify their living wills. Specifically, intubation is the topic that has many seniors crafting or rethinking their strategies amidst a wealth of disparate COVID-19 information that makes forming reliable conclusions for decision making, dubious at best.

Ventilators Options Seniors During COVID-19

Initial reports were suggesting that the use of a ventilator, a machine that pumps oxygen throughout a patient’s body while lying in bed, sedated, with a breathing tube down their windpipe, was showing signs of promise in severe cases of COVID-19. Yet, further into the pandemic timeline, these machines that help patients to overcome respiratory failure appear to have discouraging survival rates.

The prognosis of an older adult with COVID-19 placed on a ventilator with an underlying medical condition like lung, kidney, or heart disease is even more dismal. These older COVID-19 patients who do survive, spend considerably longer (two weeks or more) on a ventilator and tend to come out of the treatment extremely weak, deconditioned, often suffering delirium, and requiring months of rehabilitative care.

Opting Out of Ventilators

Many seniors are revising their advance health care directive to address the case of COVID-19 specifically, and they are opting out on the use of a ventilator. Joyce Edwards from St Paul, Minnesota, is unmarried and living on her own with no children spoke to the issue stating, “I have to think about what the quality of my life is going to be. Could I live independently and take care of myself, the things I value the most? There’s no spouse to take care of me or adult children. Who would step into the breach and look after me while I’m in recovery?”

Joyce’s situation is not uncommon in the United States. American seniors are more likely to live alone than ever before: the new mantra of “aging in place.” Living alone does not mean they do not have family, somewhere. Still, in the case of contracting COVID-19 and the difficulties recovery can present, many seniors prefer not to upend the lives of their younger children to prolong their own lives. Some seniors prefer to ‘go quietly into that good night’ after a life well-lived. They are conceding in writing that extraordinary measures to keep them alive are not how they wish to spend their final months, weeks, or days. It is especially true in the case of intubation, where a patient is essentially in a coma state and unable to communicate with loved ones before they might pass on.

COVID-19 Care Gray Area

Then there is the gray area of choice regarding respiratory failure due to COVID-19. While some seniors may be saying NO to a ventilator, doctors can give high-flow oxygen and antibiotics. Positive airway pressure (PAP) machines are another mode of respiratory ventilation. BiPAP and CPAP machines deliver oxygen but without the sedation required during intubation, which allows the patient to be alert, more comfortable, and have interaction with family and friends.

COVID-19 Discussions for Senior Care

Having discussions with your spouse, family, or doctor if you are alone, about COVID-19 and what to do if you contract the disease and how you might amend your living will to reflect your desires are more important than ever. Dr. Rebecca Sudore, a professor of medicine at the University of California at San Francisco, suggests directing the discussion away from using a ventilator or not, to a more general discussion of how an older adult sees their future.

The discussion should include questions about what is most important to you as an older adult. Do you treasure your independence? Or is time with your family more valuable to you? Is being able to walk and be physically capable important to you, or can you live happily with compromised lungs in a more sedentary lifestyle? Is your goal to live as long as possible? Or is it about the quality of your years on earth? In an open and calm discussion, answering these and other general questions will provide the context that will lead you to your decision about ventilators and other breathing machines.

There is a lot to think about when it comes to end-of-life wishes. We are here to help you decide what documents are appropriate to adequately express your wishes. We look forward to talking with you.

What Is the Role of a Probate Attorney?

Whether you are the Executor or an heir of the probate estate, knowing the lawyer’s role is one of the first steps you should take at the beginning of the probate process. One of the biggest sources of conflict in probating the estate is understanding the role of the lawyer hired by the Executor of a probate estate. Many Executors do not understand the probate process and leave the tasks up to the lawyer. The heirs of the estate may hear only from the lawyer or may hear the Executor say, “This is what the lawyer says we have to do.” This often raises the question, does the lawyer owe a fiduciary duty to the heirs of the estate since the Executor owes a fiduciary duty to the heirs?

The answer to that question depends on the state in which the estate is being probated. To be clear, this question is specifically about whether a lawyer owes the heirs of a probate estate a fiduciary duty, and not whether a lawyer owes a fiduciary duty in other contexts, such as to the beneficiaries of a trust when hired by a trustee, or a ward when hired by a guardian or conservator. The answer varies depending on each different circumstance.

Also, before answering the question, it is helpful to have an idea of some common activities created by fiduciary duties in the context of probating an estate:

  • Duty to communicate: a duty to notify the beneficiaries the estate exists, identify the Executor, provide a copy of the inventory, provide copies of court filings, generally explain documents that require a beneficiary’s signature, etc. This duty to communicate is not the same thing as an attorney-client relationship, which means there is no attorney-client privilege and the attorney cannot give legal advice.
  • Duty to account: provide regular estate accountings, which includes explaining funds paid out of estate accounts for expenses.
  • Duty to treat all beneficiaries equal: distribute estate funds at the same time, if a question arises as to how something in the Will is to be interpreted the attorney cannot interpret it, the court must interpret it.

Turning back to the question, whether the lawyer owes a fiduciary duty the heirs of a probate estate depends on the state in which the estate is being probated. Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the Executor. These states believe that since the Executor owes a fiduciary duty to the heirs and the lawyer owes a fiduciary duty to the Executor, the duty flows from the Executor to the lawyer.

Most states, however, take the position that the lawyer does not owe a fiduciary duty to the estate heirs. These states view the fiduciary duty owed by the Executor to the heirs as unique from the fiduciary duty owed by the lawyer to the Executor. Also, these states want to maintain the Executor’s ability to have protected communication with the attorney.

There is a small third set of states, including California, New Mexico, and Illinois, that apply a balancing test to determine who was the actual intended beneficiary of the attorney-client relationship, the Executor or the heirs? Each state has established their own test criteria, but some common questions the courts ask include: who was the intended beneficiary of the attorney’s services, the Executor or the heirs; what was the foreseeability of the harm to the heirs as a result of the malpractice; and what was the proximity of the misconduct and the damage to the heirs?

If you are the Executor hiring the attorney, ask what the law is. If you are an heir of the estate, the lawyer should give you some guidance. If the probate estate is in one of the majority states, the first letter from the attorney should start with a sentence that reads, “I have been retained by Mr. Smith, Executor of the Estate of Ms. Smith. It is important that you understand I do not represent you.”  Otherwise, call and ask.

Everyone’s goal should be for the settling of the probate estate to go smoothly. Understanding the lawyer’s role will go a long way towards achieving that goal.

If you have questions or would like to discuss your personal situation, please don’t hesitate to reach out.