SB 841 Provides Framework for Remote Online Notarizations
On April 20, 2020, Governor Wolf signed into law Senate Bill 841 which, among other things, provided a loose framework for notaries to perform authorized “remote online notarizations” (RON), while also providing that these changes not be permanent. Contained in the language of Senate Bill 841, in the portion titled COVID-19 Disaster Emergency, the notary provisions are part of a larger effort to recognize and overcome temporary issues occurring with government meetings, property tax, educational taxes, and school contractors. The preliminary provisions specifically limit the definition of the COVID-19 Disaster Emergency to “The Duration of the Proclamation of Disaster Emergency issued by the Governor on March 6, 2020, Published at 50 PA.B. 1644 (March 21, 2020) and any renewal of the State of Disaster Emergency.”
The authorization of remote online notarization services, therefore is temporary, and will expire 60 days after the end of the COVID-19 Disaster Emergency (57 PA.C.S. §5731 (A)(3)). These are not intended to be permanent changes to how notarial acts are conducted in the Commonwealth of Pennsylvania.
Which technologies and vendors are permitted?
The Department of State ultimately determines how and through what technologies remote online notarizations are permitted to be performed. Currently, the only authorized and permitted communication and identity proofing technology permitted for use is contained and referenced in the March 25, 2020 Notice of the Department of State concerning the limited suspension of the requirements of 57 PA.C.S. § 306. This suspension removes the requirement that a notary is physically present when notarizing documents. The Department of State March 25, 2020 Notice, however, does not specifically list any providers and rather contains a link to a list of “approved remote online notarization vendors”.
The vendors are further separated as to whether they offer remote online notarization and in-person electronic notarization or only electronic notarization. The vendor must offer both in order to provide effective remote online notarization of documents. Vendors can be added by the Department of State at any time, and the new provisions of the law specifically provide that a notary, or the vendor themselves, may give notice to the Department of State that they intend to use a new vendor or technology provider so long as the vendor/provider complies with 57 PA.C.S. § 5731 (G)(1) (57 PA.C.S. § 5731 (A)(2)). Vendors have been added recently and more may be added in the near future.
What is not permitted?
A notary cannot simply boot up a Zoom or Teams video conference call with the person signing the documents, have them hold up an identification card, then notarize a document for that person. A notary also cannot choose their own preferred electronic means without its approval by the Department. Notaries may only use the vendors which the Department of State has authorized.
How is identity verified?
Another issue for notaries is how they will go about verifying identification as video may be unclear or unreliable as a means to do so, especially if the person signing is out of state or even out of the country. Senate Bill 841 specifically addresses this and it is reproduced herein:
The Notary is permitted to verify the identity of the person remotely signing by ensuring that all of the following apply:
- The Notary Public:
- Has Personal Knowledge under 57 PA.C.S. § 307(A) (Relating to Identification of Individual) of the identity of the individual;
- Has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under 57 PA.C.S. § 307(B) or under this section; or
- Is able to reasonably identify the individual by at least two different types of identity proofing processes or services
- The Notary Public is able to reasonably identify a record before the notary public as the same record;
- In which the remotely located individual made the statement; or
- On which the remotely located individual executed the signature.
- The notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act, including all interactions between the notary public and the remotely located individual.
- If the remotely located individual is located outside the United States, all of the following apply:
- The record:
- Is to be filed with or relates to a matter before a court, governmental entity, public official or other entity under the jurisdiction of the United States; or
- Property located in the territorial jurisdiction of the United States; or
- A transaction substantially connected with the United States.
- The act of making the statement or signing the record is not prohibited by the foreign state where the remotely located individual is located.
- The record:
57 PA.C.S. § 5731 (C)
Many of the vendor services approved by the Department of State include identity verification.
How long must a notary keep audio-visual records, and who is responsible for keeping them?
At least ten years. This responsibility carries on to anyone acting on behalf of the Notary, including the notaries agents, even after the death of the Notary. Each of the vendors offering remote online notarization services has either a tier or a set cost at which they will retain these records for you. Additional fees may apply if and when you no longer use their service, and careful consideration before choosing a vendor should be taken with respect to their retention.
What issues remain?
Notaries who commonly work with estate planners may note that Senate Bill 841 does not change the language requiring the physical presence of witnesses when signing estate planning documents. Notarization of some Estate Planning documents requires witnesses and the preferred method of estate planners is to have the notary document that they also saw the witnesses sign. See a separate article here for what Estate Planning documents require witnesses.
For example, so that a Last Will be “self-proving”, it must be signed in the presence of two witnesses and a notary. Even if the Notary requirement is met by the temporary changes of Senate Bill 841, the two witnesses requirement in the age of COVID-19 remains a problem. Further, a General Durable Power of Attorney requires the same two witnesses and a Notary to be valid. The witnesses must also be in the presence of the person signing, creating the same issue. Generally, when signing estate planning documents in Pennsylvania, we consider it to be best practices to have two disinterested witnesses and a notary present on all documents, no matter the requirements so that its validity is more difficult to challenge on the basis of authentication. This issue has not been solved by the instant legislation.