The COVID-19 outbreak and government-mandated shutdowns have made in-person meetings between attorneys and clients off limits. Clients seeking to update healthcare directives and rework trust, estate, and wealth-transfer planning in the wake of the pandemic can take comfort in the fact that technology enables phone calls, video conferences, and even electronic signing of documents, allowing attorneys to meet most of their clients' needs. But one key area -- the notarization of critical legal documents -- was unaddressed by the legislature in Pennsylvania until recently.
With the passage of S.B. 841, signed into law by Gov. Tom Wolf on April 20, Pennsylvania now has implemented a temporary suspension of some state statutes requiring notaries public to be physically present to witness required signatures -- the Revised Uniform Law on Notarial Acts (RULONA).
Important documents that require notarization include:
Powers of attorney;
Self-proving wills (wills that can be admitted to probate without the need for two witnesses to attest to the validity of the decedent's signature on the will); and
Trusts that hold real property.
Other documents do not require notarization, but doing so is considered a best practice. These documents include:
Advance health care directives;
Wills that are not self-proving (that will require two witnesses to attest to the validity of decedent's signature on the will for probate to occur); and
Trusts that do not hold real property.
Notaries may temporarily use audio-visual communication technology as a substitute for being physically in the same room to witness the signing of documents requiring a notary seal -- under certain conditions.
Under the requirements implemented by the Pennsylvania State Department, notaries must still comply with all other requirements of the RULONA. Notaries must also be physically in Pennsylvania at the time of the tech-assisted notarization.
In order to take the audio-visual tech alternative route, notaries must apply to become a Pennsylvania electronic notary (the application is free) and must notify the Pennsylvania Department of State (using a fee-free online form) that they will be conducting remote notarizations and designate the specific communication and identity-proofing technology they plan to use.
Electronic notaries also must use a remote technology provider that has been approved by the State Department---FaceTime, Skype, and Zoom are not acceptable technologies.
According to the State Department, approved communication technology must allow a notary to:
Communicate with a remotely located individual simultaneously by sight and sound, and be able to make reasonable accommodations for people with vision, hearing, or speech impairments.
Determine the identity of the remotely located individual based on the notary's personal knowledge, the testimony of a credible witness, or the use of at least two identity-proofing technologies or services.
Enable the identification of a record in the presence of the notary as the same record being signed by or containing a statement made by the remotely located individual, such as by the use of electronic records or signatures created using tamper-evident technology.
Create an audio-visual recording of the notarization, including all interactions between the notary and the remotely located individual, to be retained for at least 10 years.
Notary certificates must state that the notarization was performed using appropriate communication technology. The State Department has indicated that the following statement will satisfy that requirement: "This notarial act involved the use of communication technology."
The temporary suspension of in-person notary requirements under S.B. 841 expires 60 days after termination or expiration of the COVID-19 disaster emergency order issued by Gov. Wolf.