Social Distancing While Notarizing Legal Documents: Remote Online Notarization Now Authorized During COVID-19 State of Emergency

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It is well-known that the scope of documents requiring legal notarization is far-reaching.  They include wills, trusts, advanced health directives, powers of attorney, promissory note agreements, bank transfer service forms, and temporary guardianship forms, just to name a few. Complying with social distancing recommendations while executing these important legal documents requiring notarization (which, otherwise, require physical in-person interactions) has proven quite difficult during the COVID-19 public health crisis.  And, Rhode Island is paying attention.

On April 3, 2020, Rhode Island Secretary of State, Nellie Gorbea, issued a letter to the Notary Public, acknowledging that “[t]he COVID-19 public health crisis has had a significant impact on the ability of notaries public to safely fulfill the duties of their commission.”  See Letter from Nellie Gorbea, Secretary of State, to Notary Public (April 3, 2020).  To improve the safety of those involved, in collaboration with the Governor’s Office, the Rhode Island Secretary of State now has authorized the performance of remote online notarization for the duration of the COVID-19 state of emergency in Rhode Island. This means that the in-person component of a notary transaction between the signer and the notary is not required to effectuate a legally proper notarization in this State while the state of emergency continues.

In authorizing remote online notarization, Rhode Island has issued a “Temporary Performance Guide” and amended the “Standards of Conduct for Notaries Public in the State of Rhode Island and Providence Plantations” (the “Updated Standards of Conduct”).  Section J of the Updated Standards of Conduct sets forth the standards for remote online notarization.  Copies of those documents can be found here: https://www.sos.ri.gov/assets/downloads/documents/2020-Updated-Notary-Public-Standards.pdf and https://www.sos.ri.gov/assets/downloads/documents/RI-RON-guidance-document.pdf.

Importantly, notaries should be aware that Rhode Island has explicitly precluded applications such as Facetime and Zoom from the scope of remote online notarization.  Instead, the notary must use a solution provider pre-approved by the Rhode Island Secretary of State.  Presently, there are two approved providers (DocVerify, Inc., and Pavasco).  To the extent that other providers are approved, those providers will be listed as such on the Rhode Island Secretary of State’s website.

In this regard, permission to perform remote online notarizations is not automatic in Rhode Island.  There is a detailed registration process that each notary must complete.  Prior to commencing a remote online notarial act, a duly commissioned notary public (i.e. an active notary under Rhode Island law) must do all of the following: (1) read the Updated Standards of Conduct; (2) Contact one of the approved solution providers listed on the Rhode Island Secretary of State’s website (see link here: https://www.sos.ri.gov/divisions/notary-public/remote-online-notarization) and obtain their services for remote online notarizations; (3) Complete the training provided by the selected solution provider; (4) Register with the Rhode Island Department of State to perform remote online notarizations by completing and submitting the information update form (a link to that form is provided here: https://www.sos.ri.gov/assets/downloads/documents/Notary-Information-Update-3_31_20-Remote.pdf) and (5) Await confirmation from the Rhode Island Department of State via email.

Once that registration process is completed and the appropriate permission is granted, the process for remote online notarization consists of the following:

(1) The signer sends the document requiring notarization to the notary (email, mail, courier, drop-off, etc.).

(2) The notary opens the document in the approved solution provider software.

(3) The notary completes the steps to register that document in that software. This will record the simultaneous audio-visual exchange between the notary and the signer.  Note: That recording must be kept for a period of ten (10) years.

(4) Using the software (which allows the notary to see and hear the signer), the notary must see and identify the signer. This process is no different than what is required to identify the signer in-person.  This means that the notary must verify the identity of the signer by:

a. viewing two forms of the signer’s identification (such as a driver’s license and passport); or

b. having personal knowledge of the signer (meaning that the notary previously has viewed the identification of the signer—just knowing the signer is insufficient); or

c. taking the oath or affirmation of a credible witness either present with the notary or with the signer, or simultaneously available by sight and sound, who can attest to the identity of the signer. The notary must verify the identity of the credible witness by either viewing two forms of identification or by having personal knowledge of the credible witness.

(5) After the identity of the signer is verified and within full view of the notary, the signer must physically sign the document. Note: The date and time of the notarization is the date and time the signer signs the document in full view of the notary (not when the notary finally completes the certification and affixes the stamp).

(6) The signer has 30 days to mail the signed document to the notary.

(7) Upon receipt of the signed document, the notary completes the certificate and affixes his or her official stamp.

Notarial services are important and often needed on an expedited basis.  COVID-19 has presented a safety risk to those services, which otherwise require physical in-person interaction.  Remote online notarization balances the need for those services with the safety of those involved during the pendency of the state of emergency caused by COVID-19.  But, obtaining the requisite authorization to perform remote online notarizations is not a snap of the fingers.  Notaries should familiarize themselves with the Temporary Performance Guide and the Updated Standards of Conduct (links to both of these documents are provided above) to ensure that they are adequately equipped to participate in the remote online notarization process as part of their notarial services.  At the heart of this process is ensuring that notarial services remain effective in ensuring that the identity of the signer is verified, even though the notary and the signer are not in direct physical contact.  To do so, the notary must obtain access to pre-approved software that enables a secure simultaneous audio-visual exchange, which must be recorded and retained for a period of ten (10) years.

To protect your employees and clients, business should be aware of the ability to obtain remote online notary services, and should familiarize themselves with the process and requirements involved. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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