After temporarily lifting the requirement that notaries public be physically present to witness required signatures, due to the COVID-19 pandemic, Pennsylvania became the 30th state in the nation to make remote notarization a permanent option. Gov. Tom Wolf signed Act 97 into law on October 29, 2020. Effective immediately, Act 97 gives lawyers and their clients new avenues for getting important documents notarized, but still leaves unanswered some practical and legal questions about executing estate planning documents.
Remote notarization was initially intended to be a short-term contingency to help the legal industry continue serving clients while practicing social distancing to slow the spread of the virus. In April 2020, Gov. Wolf signed into law Act 15, amending Title 35, related to Health and Safety in the commonwealth and temporarily suspending the provisions of Pennsylvania’s statute governing notarial acts, the Revised Uniform Law on Notarial Acts (RULONA), that require notaries be physically in the same room to witness required signatures. Act 15 was written with a sunset provision mandating that it expire 60 days after the termination of the COVID-19 emergency order issued by the governor. (Read our blog post on Act 15 here.)
Unlike Act 15, Act 97 directly amends RULONA by adding new provisions governing remote notarization in Sections 306.1 and 320(c). The provisions enable a person to “personally appear” before a notary located in Pennsylvania through technology that provides both audio and visual communication. The statute provides specific requirements for how notaries will verify the identity of individuals appearing remotely, and requires notaries to keep audiovisual recordings in addition to the required journal entries for remote notarial acts. They must also continue to comply with all other RULONA requirements, and the five major components of valid paper and ink notarizations—personal appearance, identification, acknowledgment, or statement by the signer, lack of duress, and awareness—still apply to e-notarizations. If the remotely located individual is outside the United States, certain additional requirements also must be met.
Under Act 97, notaries are required to inform the Pennsylvania Department of State that they will be undertaking remote notarization before their initial remote notarial act, but notaries who were approved to perform remote notarizations under Act 15 are also approved under Act 97, according to the Pennsylvania Department of State.
Act 97 also mandates that the Department of State implement additional regulations, including standards for acceptable communication technology and for approving providers of that technology, for the process of identity proofing and any technology used for it, and for the retention of the audiovisual recordings.
With the addition of the new—and permanent—provisions to RULONA, Pennsylvania has taken another step forward in terms of technology-enabled notarization. But, like Act 15, Act 97 leaves unresolved some issues unique to estate planning documents.
Under Pennsylvania law, documents that legally require notarization include powers of attorney, self-executing wills, and temporary guardianships. Other documents for which notarization is considered a best practice, but is not required, include advance health care directives/health care powers of attorney, living wills, and standby and temporary guardianships.
The Pennsylvania Association of Notaries (PAN) and others have pointed out that remote online notarization may not be applicable for many estate planning documents, citing the interplay between Act 97 and two other state laws.
Section 104(b)(1) of the Pennsylvania Electronic Transactions Act (PETA) bars the use of electronic signatures on wills, codicils, and testamentary trusts. Further, the Uniform Law Commission’s Uniform Electronic Transactions Act (UETA), which applies to business, commercial, and government transactions, does not apply to unilaterally generated documents that are not part of a transaction, which arguably includes estate planning documents.
In other words, the main issue is that many critical estate planning documents require a “wet signature”—an actual signature on a paper document. At least at the time that Act 15 was enacted to allow for remote notarization, the technology approved and available was built for e-signed documents, so it’s unclear at the moment how technology-enabled communication between notaries and individuals can accommodate the physical (rather than the electronic) signing of documents.
While both Act 15 and Act 97 make notarizing documents possible, they don’t provide for the remote witnessing of signatures, a critical requirement for many important documents—including financial powers of attorney, trusts that hold real property, advance health care directives, health care powers of attorney, and living wills—and a best practice for others.
Now that remote notarization has become a permanent part of Pennsylvania state law, these challenges will need to be addressed as soon as practicable to eliminate confusion and potential problems down the road.
The Pennsylvania Department of State has published a list of approved electronic notary solution vendors and approved remote online notarization vendors on its website.