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Executive Order

HI Governor Executive Orders (2020)

Notary Law Update: HI Governor Executive Orders (2020)

State: Hawaii

Summary:

Hawaii Governor David Ige has issued orders to temporarily suspend the requirement that would require close physical contact to accomplish Notary functions.

Signed:  March 29, 2020

Effective:  March 29, 2020

Chapter: N/A

Affects:

All Hawaii Notaries Public.

Changes:
  1. Suspends Hawaii Revised Statutes Chapter 456 and any related administrative rules to the extent necessary to suspend any requirement that would require close physical contact to perform Notary functions.
  2. Adopts Rules Related to Notaries as described in the sections which follow.
  3. Clarifies that these rules are adopted pursuant to the emergency declared by the Governor, specifically to enable Hawaii Notaries to perform notarial acts while complying with social distancing guidelines.
  4. Clarifies that the rules have the force and effect of law.
  5. Requires the Notary to take every reasonable precaution to perform notarial acts in compliance with all orders and social distancing guidelines relating to the COVID-19 emergency.
  6. Clarifies that Notaries will not be required to perform notarial acts if they believe social distancing guidelines to ensure health and safety cannot be followed.
  7. Authorizes notarial acts to be performed by utilizing audio-visual technology provided there is compliance with the several conditions outlined below.
  8. Requires the Notary to have personal knowledge of the signer or obtain satisfactory evidence of the identity of the signer by requiring presentation of a current government-issued identification card or document that contains the signer’s photograph and signature to the Notary during the video conference.
  9. Clarifies that the transmittal of the signer’s identification for purposes of verification to the Notary prior to or after the video conference does not satisfy the identification requirement.
  10. Requires a Notary to confirm via observation during the video conference that the signer appears to be aware of the significance of the transaction requiring a notarial act and is willing to perform the transaction.
  11. Requires the video conferencing solution to allow for direct interaction between the person and the Notary and does not allow it to be pre-recorded.
  12. Requires the Notary to confirm as is reasonably possible that the signer is physically situated in Hawaii.
  13. Requires the Notary to create an audio-visual recording of the performance of the notarial act, which shall be kept as part of the Notary's record and stored as an unsecured audio-visual recording or on a secured external digital storage such as a flash drive, DVD, or external hard drive.
  14. Requires the Notary to deposit with the attorney general the external digital storage and the notarial record books within ninety days of the Notary’s date of the resignation, expiration of any term of office as a Notary, or removal from or abandonment of office as a Notary.
  15. Requires the Notary’s representative to deposit the Notary’s external digital storage and notarial record books upon the Notary’s death.
  16. Requires the Notary to obtain the signed document that requires notarization by fax or electronic format on the same date it was signed.
  17. Authorizes the Notary to notarize the transmitted copy of the document and transmit the same back to the signer.
  18. Requires the Notary to add a statement to the notarized document as follows: “This notarial act involved the use of communication technology enabled by emergency order”.
  19. Requires the Notary to enter in the record book that the notarial act was performed pursuant to Executive Order 20-02.
  20. Authorizes the Notary to repeat notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within 60 days after the date of execution. 
The Ninth Supplementary Proclamation Related to the COVID-19 Emergency (signed June 10, 2020) made the following changes:
  1. No longer requires the Notary to obtain the signed document that requires notarization by fax or electronic format on the same date it was signed.
  2. Requires a Notary to obtain the signed document that requires notarization within fourteen days of signing.
  3. Requires the notarization date of the signed document that requires notarization to be the same as the date of signing.
The Fifteenth Supplementary Proclamation Related to the COVID-19 Emergency (signed November 16, 2020) made the following changes:
  1. Clarifies that the emergency rules do not require a Notary to perform notarial acts utilizing audio-visual communication.
  2. Clarifies that before any documents are signed, the Notary must be able to view by camera the entire space in which the signer is located.
  3. Requires the signer to attest to being physically located Hawaii and affirmatively state the name of the county in which he or she is located.
  4. Requires a Notary to create an audio-visual recording of the act of witnessing the will (or codicil of the will), if applicable.
  5. Requires the Notary to obtain a legible copy of the unsigned document to be notarized, which may be transmitted via facsimile or electronic means, prior to or on the same date of the execution.
    Requires any persons who are present during the transaction to state their names, and the signer shall affirmatively state what document the signer is signing.
  6. Requires the signer during the video conference to sign the document while in clear view of the Notary.
In addition, the Fifteenth Supplementary Proclamation authorized the act of witnessing wills (or codicils) to be performed before a Notary utilizing audio-visual technology, provided the wills (or the codicils) comply with the following requirements:
  • The witness(es) have personal knowledge of the testator or obtain satisfactory evidence of the identity of the testator by requiring presentation of a current government-issued identification card or document that contains the testator's photograph and signature during the video conference. The testator's identification for purposes of verification to the witness(es) may not be transmitted prior to or after the video conference.
  • The Notary creates a continuous live audio-visual recording of the performance of witnessing and notarial acts, that is kept as part of the Notary's record and stored as an unsecured audio-visual recording or on a secured external digital storage such as a flash drive, DVD, or external hard drive.
  • The video conferencing allows for direct interaction between the testator, witnesses, and the Notary, and is not be prerecorded. Before any documents are signed, the witnesses must be able to view by camera the entire space in which the testator is located.
  • During the video conference, the testator declares the testator's name and that the testator is signing and executing the testator's will (or codicil), and is doing so willingly and voluntarily, and as the testator's free and voluntary act for the purposes expressed in the will (or codicil); and 18 years of age or older, of sound mind, and under no constraint or undue influence.
  • The witnesses each state their names and confirm during the video conference that they are aware of the significance of their role as witnesses to the execution of the testator's will (or codicil) and are willing to serve and perform as witnesses.
  • During the video conference, the testator signs the will (or codicil), which contains self-proving language pursuant to HRS 560:2-504(a), or any self-proving affidavit.
  • Each witness obtains a legible copy of the signature page(s) of the will (or codicil), which may be transmitted to each witness via facsimile or electronic means, prior to or on the same date that the page(s) are signed by each witness. This provision is not be construed to affect the requirement for the Notary to obtain all the pages of the document the Notary is notarizing.
  • Each witness signs the copy of the signature page(s) of the will (or codicil) during the video conference and sends the signed page(s) to the Notary in accordance with the requirements of section 3 of the emergency rules.
  • The will (or codicil) that is witnessed remotely in accordance with the emergency rules contains a statement as follows: "The witnessing of this will (or codicil) involved the use of communication technology enabled by emergency order."
  • Each witness may repeat the witnessing of the will (or codicil) as of the date of execution provided the witness receives such original signature page(s) together with the electronically witnessed copies within 60 days after the date of execution.
Analysis:
On March 29, 2020, Hawaii Governor Ige signed an executive order temporarily suspending any statutes and rules which would require notarizations to be performed in close proximity. The Order also by reference approved temporary rules to implement the Governor's Order. One rule requires Notaries to take every reasonable precaution to perform notarial acts in compliance with all orders and social distancing guidelines relating to COVID-19, but the remaining rules outline standards for performing remote notarial acts using communication technology instead. The authorization is permissive; Notaries are not required to perform remote notarizations, but if they do they must follow all of the rules approved by the Governor in his Order. The Order and rules remain in effect for the emergency period unless terminated by separate proclamation, whichever comes first. 

Read Executive Order 20-02 and the Notary Public Rules.



 

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