Rule 91 - Remote Witnessing of Certain Non-Testamentary Instruments(a) Any of the following documents is signed in the presence of a witness if the witness observes the signing through real-time audio-video communication in accordance with this rule: (1) Declaration as to medical treatment, as provided under §15-18-104, C.R.S.;(2) Behavior health order for scope of treatment, as provided under § 15-18.7-202, C.R.S.; and(3) Anatomical gift, as provided under § 15-19-205, C.R.S., including an anatomical gift contained within a declaration as to surgical treatment described in subsection (a)(1) or within a medical durable power of attorney, as provided under § 15-14-506, C.R.S.(b) The use of real-time audio-video communication to witness the signing of a document described in subsection (a) is subject to the following requirements with respect to each remotely located witness:(1) "Real-time audio-video communication" means an electronic system of communication by which remotely located individuals are able to see, hear, and communicate with one another, substantially simultaneously and without interruption or disconnection. Delays of a few seconds that are inherent in the method of communication do not prevent the interaction from being considered to have occurred in real time. (2) At the time of the document's signing:A. Each signer and witness must be a domiciliary of and located within the State of Colorado; andB. Each witness must be otherwise qualified to sign the document under any applicable statute.(3) During real-time audio-video communication:A. Prior to the document's signing, the signer of the document must: (i) Make available for remote examination by the witness a complete copy of the unsigned document and, if the signer is not personally known to the witness, the signer's government-issued photo identification; and (ii) Orally state to the witness the signer's name; the name, purpose, and number of pages of the document to be signed; and the signer's current location and State of domicile. B. Prior to the document's signing, each witness must:(i) Confirm the identity of the signer either by personal knowledge or by examining the signer's government-issued photo identification; and (ii) Confirm that the name, purpose, and number of pages of the document to be signed as described by the signer match the copy of the unsigned document examined by the witness. C. The signer must sign the document; and the witness must observe the signer's signing of the document. (4) The signer must transmit a copy of the signed document by fax, email, or other means to the witness within a reasonable period after signing the document.(5) Within 14 days after receiving a copy of the signed document, each remotely located witness must: A. Certify his or her witnessing of the document's signing in a form substantially similar to the following: I certify that on _______________ , 20__, I witnessed, through the use of realtime audio-visual communication, ________________ (the "signer") sign the
____________________ (the "document"); and during the audio-visual
communication I (a) confirmed the identity of the signer, (b) observed the signer's signing of the document, and (c) confirmed that the signed document had the same name, purpose, and number of pages as represented to me by the signer prior to his or her signing.
B. Transmit a copy of the signed document with the completed witness certification to the signer by fax, email, or other means.(c) Except as otherwise provided by statute, a non-testamentary instrument executed pursuant to subsection (b) of this rule is effective as of the date the signer signed the instrument.(d) This rule shall be effective during any period in which the Governor of Colorado, by executive order, has formally declared the existence of a public health crisis that, by the terms of such order, requires social or physical distancing throughout Colorado.Adopted April 24, 2020, effective 4/24/2020.Comment
2020
This rule was promulgated by the Colorado Supreme Court's Probate Rules Committee during the COVID-19 pandemic to address issues arising from the Governor's Order D 2020 017, dated March 25, 2020, concerning social and physical distancing.