Published on: April 24, 2020
With the passage of H.4688 by the Legislature, Massachusetts has joined the long list of states which have responded to the COVID-19 pandemic by authorizing the use of remote Notaries. It is expected that Governor Baker will sign this bill immediately. Social distancing can now be maintained when legal documents are to be signed or executed as the term is used when signing must be done in the presence of a Notary.
H.4688 permits the remote or virtual execution, notarization, filing or recording of virtually notarized legal documents such as wills, trusts, nominations of guardians or conservators, caregiver authorization affidavits, durable power of attorney, health care proxy and HIPAA documents as well as mortgages and other documents transferring title to real estate. As with legal documents signed and notarized conventionally and in-person, care must be taken to observe the requirements of the Act in order to ensure the validity and enforceability of the document and its related transaction.
It is important to note that the only Notaries who are authorized to perform remote notarizations are Attorneys and paralegals working under the direct supervision of attorneys. No other Notaries, even though authorized and duly appointed may notarize remotely. Any electronic device capable of video conferencing, including cell phones, can be used. The other requirements are:
(a) all parties are physically located in Massachusetts during the signing;
(b) the signers and all others in the room with the signer consent to the video and audio recording of the remote virtual session;
(c) the signer provides satisfactory identification by video with copies of the identification subsequently sent to the notary;
(d) all others in the room are seen on video by the notary and provide satisfactory
identification by video and disclose their relationship to the signer;
(e) the notary observes the actual execution of the documents by video;
(f) the original executed documents are subsequently delivered to the notary, as directed, for notary signature, stamp, and certification;
(g) the notary completes an affidavit indicating receipt of the signer’s identification documents, visual inspection of the credentials during the video conferences, consent to record the video conferences, confirmation that signer was physically located in Massachusetts and noting all of the individuals present in the room with the signer and their relationship to the signer.
Not listed above is the requirement for a second video conference when real estate transaction documents which have been remotely notarized are to be recorded. For those documents, such as deeds, mortgages, easements and the like, a second “verification” video conference meeting all the requirements of the first video conference must be held. In this second video conference, the signer is required to verify to the Notary that the document received by the Notary is, in fact, the document which was signed during the first video conference. It is also important to note that the Act requires the notary to retain copies of the signer’s identification, the affidavit noted above, and a copy of the audio/video recording for 10 years.
While these procedures may seem awkward and cumbersome, in the current pandemic environment, this Act should eliminate concern over maintaining social distancing when conducting business “as usual” during a highly unusual time. It is to be noted that this is not a permanent Act; it expires three (3) business days after the Governor declares the state of emergency to be over. However, if the passage of time reveals that the process works smoothly, perhaps it will become permanent as a supplement to the traditional notarization process we are accustomed to using.
If you have any questions about how the remote notarization process works and assistance with having documents remotely notarized please contact our office.
If you have any questions regarding this article, please contact Ellen Shapiro at firstname.lastname@example.org.
To read Bill H.4688 [click here].