Massachusetts Readies for Remote Notary Practice

The Massachusetts General Court (our legislature) has passed a bill allowing for notaries to take oaths and acknowledgments in certain circumstances remotely during the state of emergency the Governor declared during the pandemic. I am on record here at Letters Blogatory as generally opposing such laws for a variety of reasons, but in the current emergency the law seems to me to be necessary and appropriate, and I think the drafters have done a good job addressing the problem while minimizing the downsides to allowing the practice.

The bill is now on the Governor’s desk, but I assume he will approve it shortly. How will it work? The notary and the signer must both be physically present in the Commonwealth, and everyone present in the room with the signer must be identified and visible to the notary. During the video conference, the signer must show the notary satisfactory evidence of identification (e.g., a driver’s license), and the notary must observe the signer’s acknowledgement or affirmation and his or her execution of the document. Then the signer delivers the documents (including a copy of his or her ID) to the notary in accordance with the notary’s instruction. If the documents “involve[] a mortgage or other conveyance of title to real estate,” then the notary and the signer must have a second videoconference in which the signer verifies that the document the notary receives is the same document the signer signed. (Question: what about documents such as wills or powers of attorney that may later affect title to real property?) Anyway, notary then completes the notarial certificate, which must recite that the notary acted under the new law. The notary must also execute an affidavit stating that he or she has received the signer’s ID, obtained the signer’s assent to any recording of the video conference, taken the signer’s affirmation as to his or her physical presence within the Commonwealth, etc. Any rule requiring that all the signatures appear on a single document is set aside, which is necessary in the case of a document like a will, which must be witnessed to be valid.

Perhaps the most forward-looking feature of the bill is the provision providing for automatic repeal three business days after the termination of the state of emergency. As I have written, there are good reasons—the cautionary function, rooting out undue influence, and so forth—for requiring a person to appear before the notary in person to acknowledge a deed or take an oath. Still, I am glad that our government is able to make necessary and extraordinary modifications to the law to help people in extraordinary times.

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