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Executive Order

MI Governor Executive Orders (2020)

Notary Law Update: MI Governor Executive Orders (2020)

State: Michigan

Summary:

Michigan Governor Gretchen Whitmer issued executive orders temporarily allowing Notaries to perform remote notarizations and to extend Notary commissions during the COVID-19 pandemic.

Signed:  April 08, 2020

Effective:  April 08, 2020

Chapter: N/A

Affects:

All Michigan Notaries Public.

Changes:
Executive Order 2020-41, issued on April 8, 2020, included the following provisions:

  1. Provides that in addition to other means available by law, any notarial act that is required under Michigan law may be performed by a Notary who currently holds a valid notarial commission utilizing two-way real-time audiovisual technology, provided that all of the requirements, as specified below, are met.
  2. Requires that the two-way real-time audiovisual technology must allow direct interaction between the individual seeking the Notary’s services, any witnesses, and the Notary, wherein each can communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization.
  3. Requires that the two-way real-time audiovisual technology must be capable of creating an audio and visual recording of the complete notarial act and such recording must be made and retained as a notarial record in accordance with sections 26b(7) to 26b(9) of the Michigan Law on Notarial Acts, MCL 55.286b(7) to 55.286b(9).
  4. Requires the individual seeking the Notary’s services and any required witnesses, if not personally known to the Notary, to present satisfactory evidence of identity (e.g., a valid state-issued photo identification) to the Notary during the video conference, not merely transmit it prior to or after the transaction, to satisfy the requirements of the Michigan Law on Notarial Acts, MCL 55.261 et seq., and any other applicable law.
  5. Requires the individual seeking the Notary’s services to affirmatively represent either that the individual is physically situated in Michigan, or that the individual is physically located outside the geographic boundaries of this state and that either: (a) The document is intended for filing with or relates to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of Michigan; or (b) The document involves property located in the territorial jurisdiction of Michigan or a transaction substantially connected to Michigan. 
  6. Provides that if an individual is physically located outside of the geographic boundaries of Michigan, the Notary must have no actual knowledge that the individual’s act of making the statement or signing the document is prohibited by the laws of the jurisdiction in which the individual is physically located.
  7. Requires the individual seeking the Notary’s services, any required witnesses, and the Notary to be able to affix their signatures to the document in a manner that renders any subsequent change or modification of the remote online notarial act to be tamper-evident.
  8. Requires the individual seeking the Notary’s services or the individual’s designee to transmit by fax, mail, or electronic means a legible copy of the entire signed document directly to the Notary on the same date it was signed, and further clarifies that this requirement applies regardless of the manner in which the document is signed.
  9. Provides that once the Notary has received a legible copy of the document with all necessary signatures, the Notary may notarize the document and transmit the notarized document back to the individual seeking the Notary’s services.
  10. Provides that the official date and time of the notarization is the date and time when the Notary witnesses the signature via two-way real-time audiovisual technology as required under this section.
Executive Order 2020-74, issued on May 5, 2020, included the provisions in Executive Order 2020-41 and the following new provisions:

  1. Rescinds and replaces Executive Order 2020-41 with this Order.
  2. Keeps all provisions in Executive Order 2020-41 in place with this Order except as follows: (a) Requires the signatory to affirmatively represent that the signatory is physically located in Michigan or that the signatory is physically located outside of Michigan, and (b) Extends from 24 to 72 hours of receipt when any witnesses to the document must sign the transmitted copy of the document as a witness and return the signed copy to the signatory or the signatory's designee by fax, mail, or electronic means.
  3. Temporarily suspends strict compliance with MCL 55.269(2) to the extent necessary to extend until June 30, 2020, the validity of a Notary commission that expired or is set to expire between March 1, 2020, and June 30, 2020.
Executive Order 2020-131, issued on June 24, 2020, included the provisions in Executive Order 2020-74 and the following new provision:

  1. Temporarily suspends strict compliance with MCL 55.269(2) to the extent necessary to extend until June 30, 2020, the validity of a Notary commission that expired or is set to expire between March 1, 2020, and July 31, 2020.
Executive Order 2020-173, issued on August 28, 2020, included the provisions in Executive Order 2020-158 and the following new provision:

  1. Temporarily suspends strict compliance with MCL 55.269(2) to the extent necessary to extend until September 30, 2020, the validity of a Notary commission that expired or is set to expire between March 1, 2020, and September 30, 2020.

Executive Order 2020-187, issued on September 29, 2020, included the provisions in Executive Order 2020-173 and the following new provision:

  1. Temporarily suspends strict compliance with MCL 55.269(2) to the extent necessary to extend until October 31, 2020, the validity of a Notary commission that expired or is set to expire between March 1, 2020, and October 31, 2020.
Analysis:

Michigan, a state that has enacted remote online notarization, is the latest state to allow remote notarizations to be performed during the COVID-19 pandemic by a governor's executive order. On April 8, 2020, Governor Whitmer issued Executive Order 2020-41 with this authorization and rules for performing these temporary remote notarizations. It's important to note that the Governor's authorization does not require the provisions of Michigan Notary law on remote online notarizations to be followed, except for the statutes that require the Notary to make an audio-visual recording of the notarial act. Interestingly, the Governor's Order requires the signer, any required witness and the Notary to sign the document being notarized in a manner that renders any change to the document "tamper-evident." This is done using an electronic signature platform of the kind that is used by the remote online notarization platforms currently in use. The Order then goes on to require that the document be transmitted by fax, electronic means or regular mail to the Notary, who then would perform the notarial act on the document. This procedure is required no matter the method of signing the documents. It is difficult to construe and harmonize these two provisions, but the one that makes the most sense is that a remote notarization or electronic signature platform must be is used to sign the documents, but then a paper version of the document must be signed and then transmitted to the Notary to be notarized on paper. Executive Order 2020-41 was the first of several Orders issued by the Governor. The provisions of these Orders, if any, are summarized above and noted below.

Read Executive Order 2020-41.

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