For more than two months, the country has been self-distancing and socially isolating. Many state governments are still closed, and courts continue to suspend functions. But litigators, especially personal injury attorneys, are still working on cases – which means they still have affidavits and verifications that need to be signed and processed. Attorneys rely on notaries as part of their day-to-day practices. But how are notary publics dealing with the country’s health guidelines? In a word: versatility.
While notary laws can vary from state to state, there is typically a requirement for the notary and the person signing the documents to be within close physical proximity of each other. Notaries must also follow all federal, state, and local guidelines for social distancing with signers and the notarization of documents. While these laws may seem mutually exclusive, with a little creativity and planning, notaries can still work with the signer and employ social distancing guidelines.
Under the current health circumstances, many states are reconsidering the requirement that signers must physically appear before the notary, both to sign and to prove their identity. Even before the pandemic, some states introduced laws allowing for remote online notarization (RON) so that notaries could verify documents without in-person meetings. With RON, notaries can use specific audio/visual technology to authenticate the identity of the signer and notarize a document, or set of documents, even when the signer is not in the same physical location as them. More than two dozen states have enacted or fast-tracked a RON law; about 20 other states have issued temporary executive orders allowing for remote online notarization.
In March, the US Senate introduced the SECURE Act (Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020) to establish requirements for electronic and remote notarizations that occur within or could affect interstate commerce. If approved in its current form, the SECURE Act would immediately authorize all US notary publics to perform remote online notarization services using audio-visual communication, tamper-evident technology, and multifactor authentication (to prevent fraud). The US House of Representatives also introduced a substantially identical version of the SECURE Act legislation in March.
While the federal legislation is pending and some states are allowing for remote online notarizations, there are notary publics who are still coordinating in-person signings. Again, these interactions must meet current laws for social distancing and health protection. The American Bar Association, in addition to state-based bar associations, have put together some suggested guidelines for in-person notarizations during the quarantine. These recommendations include:
- All parties should wear masks and gloves at all times; the attorney or notary should provide protective wear for the signers.
- The notary public should also have hand sanitizer and disinfecting wipes with them at all times. They should sanitize frequently and should make these items available to all parties involved.
- All parties should maintain a safe distance from each other (a minimum of six feet is recommended).
- The notary public should not make any physical contact with the signer, including shaking hands.
- Notary publics should not touch the signer’s identification card(s) or documents; the signer should place the item on a tabletop, desk, or other surface, and the notary can view it from there.
- Each party should have their own pen; they can bring their own and sanitize before/after the signing, or the notary can have a new/unopened package of pens to distribute to all involved parties.
- The party or parties arranging the signing should organize the documents beforehand so that all of the paperwork that needs to be notarized is grouped together. This will significantly reduce the amount of time that the signer, notary public, and others have to spend together.
- If the notary public is sick or feels like the signing environment would put them at risk, they are allowed to decline the assignment and notify the party that hired the notary.
While some attorneys are hosting the signing at their firm and asking the notary and signer to stand at opposite ends of a long conference table, other law firms have coordinated “drive-thru” signings where the parties pass the paperwork through a bank teller or regular window.
Prioritizing Health and Safety
If you are an attorney who needs your legal paperwork notarized, there are options available. Several states have enacted laws or are temporarily allowing for the remote online notarization of documents. If the SECURE Act is passed, all notary publics in the US will immediately be able to notarize documents online (with certain restrictions in place). There are also ways to notarize paperwork in person while adhering to the current social distancing guidelines. The important part is protecting the health and safety of all parties involved.
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