Four important trends are emerging out of a slate of new Notary laws this year— webcam notarizations and their impact on the physical presence requirement; elections and canvassing guidelines; powers of attorney and alternatives to guardianship involving disabled individuals; and exams for Notary commission applicants. Here’s a look at some of the state laws and regulations taking effect.
Physical Presence vs. Appearing Via Webcam
In the past, allowing signers to “appear” before a Notary via webcam versus in person had been almost universally repudiated by state Notary officials. Prior to 2015, only one state, Virginia, had enacted a law allowing use of webcams when notarizing electronic documents. But this year, the momentum toward allowing alternatives to physical presence is starting to shift.
Effective October 1, Montana Senate Bill 306 authorizes Notaries to perform acknowledgments or verifications upon oath or affirmation for a signer appearing via audio and video technology for specific transactions defined under the new law. Unlike Virginia’s law, Montana requires the signer to be identified only through a Notary’s personal knowledge of the signer or through a credible witness, and the signer must be a legal Montana resident. Montana also allows any document — paper or electronic — to be notarized with the signer and Notary appearing via video and audio technology. (Please see “Notary Exams” below for additional changes made by this new law.)
Florida Senate Bill 526, effective July 1, allows correctional officers who have the power to administer oaths and affirmations to do so using “reliable electronic means”. Contrary to traditional Notary practices, current law already waives the requirement for the oath-taker or affiant to be physically present before the correctional officer.
The Louisiana Legislature directed the Louisiana State Law Institute to study eNotarization, including provisions related to Virginia's enactment of "remote" presence before a Notary via audio-video technology. House Concurrent Resolution 218 sets February 1, 2017, as the deadline for the report and any recommendations for future legislation.
Elections And Notaries
Notarization errors and issues involving disqualifying interest on ballot and nomination petitions are a common problem during local elections and sometimes lead to legal disputes involving a Notary’s impartiality. To counter these frequent issues, two states passed new laws this year for Notaries involved in collecting petition signatures and notarizing absentee ballots:
Arkansas House Bill 1790, which takes effect July 22, prohibits Notaries from committing improper acts such as soliciting signatures from persons the Notary knows are not qualified to sign a petition, signing other people’s names to a petition, paying persons to sign a petition and other violations of election rules.
Arkansas Senate Bill 860, also taking effect July 22, makes it a misdemeanor if a Notary fails to witness an election canvasser’s signature affidavit in person or fails to properly identify an election canvasser when notarizing the canvasser’s signature.
Oklahoma Senate Bill 173 clarifies the maximum number of absentee ballot affidavits a Notary is permitted to notarize during a single election.
Powers Of Attorney And Alternative Guardianships For Disabled Individuals
Two states have enacted new laws in 2015 to help protect persons from possible abuse when executing documents giving others the authority to act on their behalf:
Nevada Assembly Bill 128, which took effect June 4, creates a new type of health care power of attorney for a principal affected with an intellectual disability. The law requires this type of power of attorney to be acknowledged before a Notary or signed by two adult witnesses; and if notarized, also requires the Notary to declare under penalty of perjury in the acknowledgment certificate that the signer appears to be of sound mind and not under duress.
Texas Senate Bill 1881 allows adults with disabilities who need daily living assistance to designate a “supporter” as an alternative to an appointed guardianship. The law requires a supported decision-making agreement to be signed by the principal and supporter before a Notary or two witnesses at least 14 years of age, and the agreement must be signed voluntarily without coercion or undue influence.
Notary Exams
States are also enacting or updating commissioning exam requirements for Notaries this year. Nevada Assembly Bill 65 updates the state’s commission requirements, becoming the 13th state to require a Notary exam and shortening the mandatory training course from four hours to three. The law also prohibits applicants from appointment as a Notary if the applicant had a previous commission revoked in Nevada or any other state. Under AB 65 Notaries renewing their appointments must also take the educational course and the Secretary of State may also require a Notary who violates state laws to retake the mandatory education course.
Montana Senate Bill 306, previously mentioned above, also requires applicants who do not hold a Montana Notary commission to pass an examination administered by the Secretary of State or an entity approved by the Secretary.
Hawaii has tightened its mandatory exam procedures under revised administrative rules, clarifying the rules for reapplying for a commission and retaking the Notary exam if an applicant fails to pass the first time.
Additional updates on the latest Notary laws and regulations in other states are available through the NNA’s searchable online Notary Law Database.
David Thun is an Associate Editor at the National Notary Association.