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DE Senate Bill 111

Legislation

State: Delaware
Signed: July 16, 2009

Effective: July 16, 2009
Chapter: 165

Summary

Senate Bill 111, “clean-up" legislation for Delaware’s extensive notarization and electronic notarization statute enacted last year, makes it easier to take and subscribe the official oath of office as a Notary or Electronic Notary and allows a paralegal or legal assistant working for an attorney who is a Delaware Electronic Notary to become an Electronic Notary even though he or she resides outside of Delaware. Many of the provisions of SB 111 pertain to the appointment of limited governmental Notaries who can notarize only for their governmental entity or office.

Affects

Amends Sections 4301, 4302, 4306, 4307, 4308, and 4313 of the Delaware Code.

Changes

Notary and Electronic Notary Commission

  1. No longer requires nonresidents seeking a Notary or Electronic Notary appointment to include with the application an affidavit containing the applicant’s residence and Delaware employment addresses and requires applicants to simply include this information in the application.
  2. Authorizes a legal assistant or paralegal working under the direct supervision of an attorney licensed in any state who is also a Delaware Electronic Notary to be commissioned as an electronic Notary provided the supervising attorney has previously submitted an application to the Secretary of State proving the need for legal assistants and paralegals under his or her direct supervision to become an Electronic Notary under Delaware law.
  3. Clarifies that the initial Notary commission is for a period of 2 years and that each subsequent commission may be for 2 or 4 years at the discretion of the applicant.
  4. Clarifies that the application fees to apply for initial commissions or reappointments are non-refundable.
  5. Simplifies the process for nonresident Electronic Notaries to take the official oath of office by permitting the oath to be administered by a Notary or other officer authorized by law to administer oaths.
  6. Clarifies that Notaries and Electronic Notaries are exempt from the recordation of the oath of office prescribed by Title 9 Section 9605(a) of the Delaware Code.
  7. Clarifies that Notaries and Electronic Notaries may not perform notarial acts until a copy of the fully executed commission is received by the Secretary in an electronic or paper document format deemed acceptable by the Secretary and repeals a prior provision requiring a true and certified copy of the official oath to be provided.

Status Changes

  1. Requires Notaries and Electronic Notaries to notify the Secretary of State of a change of address within 30 day of the change and repeals the prior provision requiring an affidavit to be filed for each change of address.

Limited Government Notaries

  1. Authorizes a current employee of a Federal governmental agency or unit of the United States to become a Delaware Electronic Notary provided such agency has previously submitted to the Secretary an application demonstrating that the agency or unit has a reasonable need for permitting 1 or more of its employees to become an Electronic Notary. Such Electronic Notaries may only execute electronic notarizations in the performance of their official duties.
  2. Amends the term for Electronic Notaries serving for police agencies to 2 years and allows for Delaware State employees and employees of county, municipal or local police agencies in Delaware to become Notaries with no application fee or other fee except for costs not waived by the Secretary for special identification cards, hardware, or other related materials and technologies or training, no expiration of term during employment and limitations as to the powers of these notaries, to be set by the agencies or units according to their needs.
  3. Clarifies that with respect to Notaries appointed by the Governor at the request of the department commander of a state-recognized veterans’ organization, that any such Notary shall have authority to perform notarial acts only in connection with and for the benefit of any veteran, their families or dependents and that they may not charge any service rendered.
  4. Authorizes the Governor, upon the request of any administrative head of any volunteer fire company or volunteer ambulance and rescue company, to appoint 1 Notary for each requesting organization for a term of 4 years, without charge to any appointee, chief or organization, and that any such Notary shall have authority to perform notarial acts only in connection with and for the benefit of their respective organizations, their families or dependents and that they may not charge any service rendered.
  5. Authorizes the Governor to appoint as limited governmental Notaries employees of a State governmental agency or unit or employee of a qualified police agency provided the employee submits an application and employer request and approval form approved by the Secretary of State.
  6. Clarifies that with respect to limited government Notary appointments: (a) such appointments expire upon the end of the Notary’s employment with the state or qualified police agency; (b) such appointments are made without charge to the appointee or the agency or unit; (c) a limited government Notary has authority to take affidavits and acknowledgment and to perform other notarial functions for those duties established by their respective agency or unit; (d) limited government Notaries may not charge for any service rendered; (e) The engraving of the Notary seal of a limited government Notary must comply with Section 4310(a) of the Delaware Code except that the Commission expiration date statement required by such subsection shall be satisfied by the phrase “My Commission expires upon office”; (f) A limited government Notary who transfers employment to another State governmental agency or unit or qualified police agency must notify the Secretary of State of within 30 days and the Notary may only retain the appointment upon receipt of an employer request and approval form from the agency or unit to which the Notary transferred.
  7. Authorizes the Governor, upon the request of any administrative head of any volunteer fire company or volunteer ambulance and rescue company, to appoint 1 Notary for each requesting organization for a term of 4 years, without charge to any appointee, chief or organization.

Other Changes

  1. Authorizes the Secretary of State to promulgate regulations and standards governing the appointments and conduct of resident and nonresident Notaries.
  2. Clarifies that it is an act of perjury for a Notary to make any false or fraudulent statements or misrepresentations on a Notary application or any other document submitted to the Secretary of State.
  3. Clarifies that the Secretary of State may use an electronic or a facsimile signature to sign the Notary or electronic Notary’s official commission.
  4. Makes technical changes.
Analysis

Senate Bill 111 is “clean-up" legislation for Delaware’s extensive notarization and electronic notarization statute enacted last year. One of the matters this bill cleans up is the procedure for nonresident Notaries and electronic Notaries taking the official oath of office as required by the Delaware Constitution. Now, nonresident Notaries and electronic Notaries can have a non-Delaware Notary or any other out-of-state oath-administering official administer the oath of office and they are exempt from the requirement to record the oath of office as required by Delaware law. In addition, applicants for a nonresident Notary or electronic Notary commission no longer must file an affidavit stating their residence and work addresses, but must include this information on the application for appointment.

However, this bill does more than implement technical changes; there are a number of substantive additions to the law in this legislation as well. For example, SB 111 now allows a paralegal or legal assistant working for an attorney who is a Delaware electronic Notary to become an electronic Notary. Under Delaware’s “innovative” one-of-a-kind law, this attorney, paralegal or legal assistant can reside in any U.S. state or jurisdiction and electronically notarize documents under Delaware law while being physically located in that other state or jurisdiction. Many of the provisions of SB 111 pertain to the appointment of limited governmental Notaries who can notarize only for their governmental entity or office.

Read Senate Bill 111.

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