Opinion: Coronavirus impact trickles down to notarizations

Missouri Gov. Mike Parson issued Executive Order 20-08 on April 6, providing special rules for notarization of documents without the physical presence of the signer before the notary. The provision is temporary and expires on June 15. There are a number of technical requirements for remote notarization to be effective, but under the right circumstances it will be appropriate and assist the state in preventing the spread of COVID-19 by insuring “a secure and safe method by which to execute important legal documents.”

The order states that any notarial act performed through videoconferencing that meets the requirements listed in the order will have the same validity as a regularly notarized instrument. However, to be considered valid, it must meet the following requirements:

• The notarial acknowledgment must be altered to state that “the principal appeared remotely pursuant to Executive Order 20-08.”

• The person whose signature is going to be remotely notarized must display valid identification containing their photograph during the videoconference, unless the individual is personally known to the notary. Therefore, the requirement of showing a photo ID would be waived if the notary were familiar with the signer. The identification requirement would, of course, be the same as with a regular notarization.

• The person whose signature is being notarized must affirmatively state that they are currently within Missouri’s physical boundaries. You cannot use the emergency executive order to notarize the signature of a client or other person on vacation in another state or country.

• The videoconference between the party signing the instrument, the notary and any other necessary party, such as witnesses, must be live such that each person can see and directly interact with the other. Taped videoconferences do not meet the requirements of the order. Nor do telephone conferences suffice unless performed through a live, active platform allowing each person to see the other, and to speak to each other. Skype, WhatsApp, Google Hangouts and any other technology should be sufficient, so long as they meet the requirements of the order. Such platforms are not suitable for notarization of electronic documents, which have different requirements.

• The notary is required to record in their notarial journal the time and software used to perform the remote notarial act. The principal, however, is not required to sign the journal as they would be in the case of an in-person notarization.

• The notary must be physically present in the state of Missouri and the notarization block must show the county in which the notary is located at the time of the remote notarization.

• For notarization of electronic documents, as opposed to paper documents, there are differing requirements. First, the notary must be registered as an electronic notary public, which is a simple process with the secretary of state’s office. Second, they must use a software program approved for the purpose by the secretary of state. Finally, the notary must affix their electronic notary seal to the electronic document.

• For paper documents, a tangible (paper) or electronic (scanned) copy of the signed instrument must be mailed or emailed back to the notary within five days of its execution.

• Also for paper documents, the order states that if any other Missouri law requires the physical presence of a person (such as a testator of a will, the grantor of a trust, the principal of a power of attorney, a witness, a notary or other person) for the instrument to be considered valid, the requirement of physical presence is waived or suspended under this emergency order if the videoconferencing requirements listed above are met.

• If the paper document signed by the person notarized is scanned and emailed back to the notary, it will be considered an original document if the notary a) prints it out and states it is a true and correct copy of the electronic document; b) states that it was performed pursuant to Executive Order 20-08; and c) affixes the rubber notary stamp.

The emergency executive order is designed to keep residents safe during the coronavirus pandemic and should be used only in appropriate circumstances when no other viable options exist. If a remote notarization takes place for a person’s estate planning documents, it would be prudent to consider having the person re-sign the instrument in person if possible when the emergency is over.

Stephen Aton of Aton Law Firm practices corporate law and estate planning. He can be reached at steve@atonlaw.com.