COVID-19 pushed the pause button on life as we know it.
And no, I’m not referring to the 2010 rom-com starring Katherine Heigl. Thanks to the global pandemic, schools are closed, businesses are restricted and suffering, and nearly one out of every three Americans have been told to stay put through shelter-in-place mandates. Even the courts have pushed deadlines, limited their operating caseload, or closed completely.
Many legal and business needs can still move forward, despite encouraged or required social distancing.
One huge need right now is for people to have health and financial powers of attorney in place so that if someone is prohibited from carrying on as normal (due to shelter-in-place orders, quarantine, or due to health problems that make “normal” impossible), the process of who is in charge can be laid out beforehand. It is important to name someone to enforce your medical wishes in case you’re not able to communicate them to your doctor. It’s also important to complete an advanced care directive or living will so that your healthcare agent knows what your medical wishes are and can enforce them.
Equally important is the need to give someone authority to take charge of handling your financial interests if you’re physically unable to.
Even if you’re stuck at home, separated from the rest of the world (they’re at home too), many states still allow you to legally execute these critical documents via virtual witnessing and notarization. Virtual notarization allows a person to execute a legal document remotely, while the notary public witnesses the signature from a different location via audiovisual technology like Zoom, Skype, FaceTime, etc. In other words, you can get important documents notarized without leaving home and without violating whatever social distancing mandates are in force in your community. South Dakota and other states have laws allowing virtual notarization. Some states are allowing this practice through executive orders that temporarily negate the requirement that the person signing the document be in the same location as the notary public. The federal government has also introduced a bill to address this need.
(NOTE: It is imperative to look at the laws of the location of the individual signing and a closer look for full compliance with a specific state’s laws, lender requirements, and underwriter requirements.).
Here is an overview of a few states that allow virtual notarizations:
Statute: SDCL § 18-1-11.1 Notarial act permitted when person appears by means of communication technology--Requirements.
- Notary must be located in South Dakota
- Use audio and visual communication with person not in the physical presence of the notary to watch signature on document
- Notary has personal knowledge of the identity of the person through dealing sufficient to provide reasonable certainty that the person has the identity being claimed
- Notary affixes signature on original tangible document executed by person
- Notary must indicate in the notarial certificate the remote location of the person executing the document and that the statement or signature by person was not in the physical presence and appeared by means of audio and visual communication
- Notary must be able to reasonably confirm that the document before the notary is the same document in which the person made the statement or executed.
- NOTE: South Dakota does not permit Electronic Notarization
Iowa Code § 9B.14A was to go into effect on July 1, 2020. However, Iowa’s Governor entered an Executive Order on March 22, 2020 in response to the COVID-19 pandemic that temporarily allows remote online notarizations to be performed immediately under Iowa Code § 9B.14A.
- Personal appearance now can be done using communication technology with the notary confirming the individual’s identity by:
- 1) personal knowledge;
- 2) verification on oath or affirmation of a credible witness appearing before the party; or
- 3) verification of at least two different types of identity proofing.
- The document must be confirmed to be the same record in which the remotely located individual made a statement or executed a signature. Unlike in South Dakota, however,
- Notary must make an audio-visual recording of the performance of the notarial act and keep that recording for ten years.
- The certificate of the act must indicate the use of communication technology.
Statute: ND Century Code 44-06.1-13.1 Notarial Act Performed for Remotely Located Individual
- Requires simultaneous sight and sound
- Notarial act must be on the original document w/ original signature; must reasonably verify it's the same document.
- Requires proof of the identity of the individual signing by either witness attestation in person to the notary or via 2 forms of identity;
- Must record the performance of the notarial act (audiovisual recording)
- The certificate of notarial act and the short-form certificate must indicate the notarial act was performed using communication technology. Short-form should follow requirements of 44-06.1-19 with the added statement "This notarial act involved the use of communication technology.”
- Recording of the notarial act must be retained for at least 10 years.
- Notary must first inform the secretary of state that it will be performing notarial acts for remotely located individuals and identify the chosen technologies to be used.
- ND also allows for electronic notarization.
Statute: MN Statute 358.645 Remote Online Notary Public
- Allows the principal to sign a document electronically, and the notary then electronically notarizes the e-signed document.
- Must first be a notary, and then register with the state and with the SofS to be a remote online notary public.
- Must be physically located in the state to perform the notarization; the remotely located individual may be in the state, outside the state but w/in the U.S., or outside the U.S. if no actual knowledge that the act is prohibited in the jurisdiction in which the remote person is located, and the document relates to something going on in the U.S.
- Must keep electronic journal of remote online notarizations containing the following information:
- Date and time of the notarization
- Type of notorial act;
- Type, title, or description of the electronic document or proceeding;
- Printed name and address of each principal involved in the proceeding;
- Evidence of identity of each principal involved in the proceeding (statement, copy of ID, or witness info)
- Fee charged for the notarization;
- Must create an audiovisual copy of the performance of the notorial act
- Must maintain the electronic journal for at least 10 years.
Don’t put off getting your powers of attorney or advance care directives in place.
Even in this time of crisis, you can still take care of these essential legal documents without leaving your home. The Goosmann Law Team is here to help you navigate through the crisis at hand. Contact our attorneys in the Sioux Falls, Sioux City, and/or Omaha offices to discuss your needs.