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Crime & Courts

Rule allowing remote witnesses moves toward becoming law

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Throughout the pandemic, court cases took place remotely across the U.S.

Almost two years ago, in response to the COVID-19 pandemic, the South Dakota Supreme Court issued an emergency order allowing certain legal documents to be witnessed remotely. Now the State Bar is asking the legislature to make that order permanent.

Andrew Fergle is executive director of the State Bar. He told the Senate Judiciary Committee that the COVID-19 pandemic has closed doors to lawyers needing to meet with clients in facilities and has made it difficult to get in-person witnesses for clients’ signatures.

But he said the problem doesn’t just lie with the pandemic. Elder law attorneys routinely face those same difficulties.

“Restrictions to clients in nursing homes, assisted living, or other care facilities has been an issue for years in order to protect vulnerable populations from the flu and other communicable diseases,” Fergle said.

And so, he said, the elder law committee of the state bar established a working group to figure it out. The result is Senate Bill 107.

The bill provides for witnesses to appear by Zoom or other electronic means, to witness signatures on wills, living wills, healthcare powers of attorney, organ donations, and pre-need cremation authorizations.

Bobbi Thury of Sioux Falls is an elder law attorney who works with vulnerable clients. She also testified before the Senate Judiciary.

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Legacy Law Firm
Bobbi Thury, Sioux Falls, S.D. Elder law attorney

“We encounter these issues all the time,” she told the committee. “Almost every year long-term care facilities will close down their doors to visitors or outsiders during the flu season.”

She said people who are close to death need sound legal guidance to make sure their wishes are made clear.

Thury said remote witnessing assists not only COVID-19 victims and elders, but also people with disabilities who have difficulty traveling to a law office. She said people of limited financial means can save money if an attorney doesn’t have to travel to meet with them. And cancer patients can hold meetings without exposure to illnesses.

“If you’re going through cancer treatment, the last thing you want to do is even get a common cold,” Thury said.

The bill passed through the Senate and now goes to the House side for hearings.