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04.29.20

Massachusetts allows virtual notarization during the COVID-19 state of emergency

BY Sarah M. Richards

On April 27, 2020, Massachusetts enacted legislation allowing remote online notarization during the COVID-19 pandemic.

Remote online notarization ("RON") is intended to spare all parties the requirement to meet in person for a notarization during the pandemic. This means wills, powers of attorney, deeds, and other documents that require signature in the presence of a notary public now can be executed in the video/audio presence of a notary public.

"An Act Providing for Virtual Notarization to Address Challenges Related to COVID-19" allows people located in Massachusetts to use an audio/visual connection on their electronic devices to meet virtually with a Massachusetts notary public to sign paper documents. The parties will use a livestreaming platform such as Cisco Webex or Zoom for the meeting.

Massachusetts RON does not allow for electronic signing of documents. "Wet ink" signatures on paper documents are still required.

If you need a document notarized during the Massachusetts COVID-19 state of emergency, you have the option of an in-person notarization under pre-existing law or using the RON statute. The notarization under Massachusetts RON has special requirements, which will require pre-planning. These include:

  1. All Massachusetts RON proceedings must be recorded by the notary public, and the notary must keep the recording for ten years.
  2. All Massachusetts RON proceedings require the notary public and the signer to be within the Commonwealth.
  3. Only a Massachusetts notary public who is also an attorney or a paralegal working with an attorney can notarize certain types of documents:
    1. Estate planning documents. These are defined to include wills, trusts, powers of attorney, health care proxies, nominations of guardians or conservators, caregiver authorization affidavits, or authorization under the federal Health Insurance Portability and Accountability Act (HIPAA).
    2. Documents involving the mortgage, sale, or other conveyance of real estate.
  4. Any Massachusetts notary public can notarize all other documents under RON.
  5. If the signer and the notary public do not already know each other, the signer must display a government-issued identification credential, such as a driver's license or passport, to the notary and must provide a front-and-back copy of that credential to the notary public. The notary public is required to keep that record for ten years. If the document relates to the conveyance of real estate, RON requires the signer to produce a second form of identification.
  6. The signer must inform the notary public of all persons present in the room at the time of the signing, and those persons must be shown on the video.
  7. If the document being notarized relates to the mortgage, sale, or other conveyance of real estate, two separate video conferences are required. The signer signs in the first video conference and then sends the signed documents to the notary public; the notary public notarizes during the second video conference.
  8. After the notarization proceedings, all signers are required to send the physical copy of the signed page with wet ink signature to the notary public.
  9. The notary public is required to prepare and keep an affidavit attesting to the circumstances of the notarization.

The Massachusetts RON self-extinguishes three days after the expiration of the State of Emergency ordered by Governor Baker on March 10, 2020.

23 states have enacted a permanent "remote online notarization" law. These laws generally purport to allow a notary licensed in that state to notarize documents that are being signed by a person who is located in another state (or country). Several companies have sprung up to provide this service. There is no explicit guidance in Massachusetts as to the validity of a notarization of documents signed under these laws. However, if you are located within Massachusetts and thinking about hiring a RON service company that uses a notary from another state, it will be prudent to consult with your lawyer ahead of time.

There may soon be federal legislation allowing remote, electronic, cross-state notarization for notarizations that occur in or have an effect on interstate commerce. Senate Bill 3533, the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020, would authorize every notary in the United States to perform RON in connection with interstate transactions.

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Sarah M. Richards

Counsel

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