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Executive Order

MS Executive Order No. 1467

Notary Law Update: MS Executive Order No. 1467

State: Mississippi

Summary:

Governor Tate Reeves issues an executive order temporarily authorizing Mississippi Notaries to perform notarial acts for remotely located individuals.

Signed:  April 06, 2020

Effective:  April 06, 2020

Chapter: N/A

Affects:

All Mississippi Notaries Public.

Changes:
  1. Defines, “commissioned”, “document”, “electronic”, “electronic record”, “electronic document”, “electronic signature”, “information”, “law”, “notarization”, “notary”, “principal”, “record”, “requirement”, “simultaneously”, “stamp or seal of office” and “state”.
  2. Temporarily modifies 1 Miss. Admin. Code Pt. 5, R. 1.5 for the duration of the State of Emergency and for 14 days thereafter and allows Mississippi Notaries to perform a notarization for a principal not in the physical presence of the Notary, provided the requirements, as specified are met
  3. Requires the principal and the Notary to communicate simultaneously by sight and sound through an electronic device or process at the time of the signing.
  4. Requires the Notary to reasonably identify the principal by one or more of the following: (a) Personal knowledge of the principal; (b) At least two different types of processes or services by which a third person provides a means to verify the identity of the individual through a review of public or private data sources; (c) A government identification credential, which may be remotely presented through communication technology, that is issued to the individual and contains the signature and photograph of the individual; or (d) The oath or affirmation of a credible witness who is in the physical presence of either the Notary or the principal or is able to communicate with the Notary and the principal simultaneously by sight and sound through an electronic device or process at the time of the notarization if the credible witness has personal knowledge of the principal and has been reasonably identified by the Notary under (a) or (b) above.
  5. Requires the Notary either directly or through an agent to creates an audio and visual recording of the performance of the notarization.
  6. Requires the Notary either directly or through an agent to retain the audio and visual recording as a notarial record during the term of the Notary's office, including renewals thereof, unless a Mississippi law requires a different period of retention, and if any laws of Mississippi govern the content, retention, security, use, effect, and disclosure of such recording and any information contained therein such recording shall be subject thereto.
  7. Requires the record of a notarial act using audio and visual communication technology for a principal physically located outside the geographic boundaries of the State of Mississippi to be 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 Mississippi; or involve property located in the territorial jurisdiction of the Mississippi or a transaction substantially connected to Mississippi.
  8. Requires the Notary who performs a notarial act using audio and visual communication technology for a principal physically located outside the geographic boundaries of the State of Mississippi to have no actual knowledge that the act of making the statement or signing the record or document is prohibited by the laws of the jurisdiction in which the principal is physically located.
  9. Clarifies that if a Mississippi law requires a principal to appear personally before or be in the physical presence of a Notary at the time of notarization that requirement is satisfied if the principal and the Notary are not in the physical presence of each other but can communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization.
  10. Clarifies that the executive order does not require a Mississippi Notary to perform a notarization (a) With respect to an electronic record or document; (b) For a principal not in the physical presence of the Notary; or (c) Using a technology that the Notary has not selected.
  11. In the case of a document in tangible form signed by a remotely located individual while being witnessed by a Notary using simultaneous audio-video communication technology.
  12. Requires the requesting person who signs document involved in a notarial act for a person not in the physical presence of a Notary to mail the signed documents to the Notary for certification and execution with the Notary's signature and the official stamp or seal after signing the document.
  13. Clarifies that the official date and time of the notarization for a document that is physically mailed to a Notary after it has been signed is the date and time when the Notary witnesses the signature via the electronic devices that provide the audio-video presence.
  14. Provides that in the case of an electronic document or record signed electronically by a remotely located individual through the use of a remote online notarization platform, once signed, the Notary may affix the Notary’s signature and official stamp or seal and clarifies that the official date and time of the notarization is date and time determined by the remote online notarization platform.
  15. Provides that in addition to the $5.00 fee per signature that a Notary may charge for a notarial act, a Notary may charge an additional fee of up to $25.00 for any notarial act conducted when witnessing the signing of a document by a remotely located individual for the purpose of covering the cost of the remote online notarization platform.
  16. Provides that in order to facilitate the recording of documents that have been electronically signed and electronically notarized using a remote online notarization platform, a Notary that has witnessed the signing of an electronic document by a remotely located individual may certify that a tangible copy of the electronic document is a true and correct copy of the electronic document.
  17. Specifies the “certificate of electronic document” form that a Notary must use in certifying that a tangible copy of an electronic document is a true and correct copy of the electronic document.
  18. Requires the Notary certifying that a tangible copy of an electronic document is a true and correct copy of the electronic document must: (a) Confirm that the electronic document contains an electronic signature that is capable of independent verification and renders any subsequent changes or modifications to the electronic document evident, (b) Personally print or supervise the printing of the electronic document onto paper, and (c) Not make any changes or modifications to the electronic document other than adding the required “certificate of electronic document” form.
  19. Clarifies that the validity and recognition of a notarization under the executive order shall not prevent an aggrieved person from seeking to invalidate a record, document, or transaction that is the subject of a notarization or from seeking other remedies based on State or Federal law other than this Order for any reason not addressed in the order, including on the basis: (a) That a person did not, with present intent to authenticate or adopt a record or document, execute or adopt on the record or document a tangible symbol or attach to or logically associate with the record or document an electronic signature; (b) That a principal was incompetent, lacked authority or capacity to execute the record or document, or did not knowingly and voluntarily execute a record or document; or (c) Of fraud, forgery, mistake, misrepresentation, impersonation, duress, undue influence, or other invalidating cause.
  20. Provides that nothing in the executive order shall affect or supersede a Mississippi law or rule governing, authorizing, or prohibiting the practice of law.
  21. Provides that the failure of a Notary to meet a requirement specified in the executive order shall not invalidate or impair the recognition of a notarization performed by the Notary under the authority granted in the order.
  22. Clarifies that the executive order shall not be construed to create a public or private cause of action or remedy.
  23. Provides that the executive order shall not affect the validity of a notarization performed before the effective date of the order and that the validity and recognition of a notarization performed pursuant to the terms of the order and during the period it is in effect, shall not be affected by the subsequent expiration, modification, amendment or revocation of the order.
  24. Provides that any provision of the executive order or the application of such provision to any person or circumstance is held to be invalid or unconstitutional, the remainder of the order and the application of its provisions to other persons or circumstances shall not be affected thereby.
  25. Provides that any notarial act that has been performed remotely by a Notary licensed to perform remote online notarizations under the laws of another state, commonwealth, territory, district or possession of the United States shall have the same force and effect under the laws of Mississippi as if performed by a notarial officer of Mississippi.
  26. Provides that all departments, commissions, agencies, institutions, and boards of the State of Mississippi, political subdivisions thereof, counties, municipalities, and school districts are authorized to cooperate in actions and measures taken in response to COVID-19 during the state of emergency.
Analysis:

Mississippi Governor Reeves issues a lengthy and detailed executive order temporarily authorizing Mississippi Notaries to perform notarial acts for remotely located individuals for the duration of the COVID-19 state of emergency and 14 days thereafter. It allows paper documents to be mailed back and forth between the principal and Notary or the Notary to use a remote online notarization platform. In addition to the $5 fee for the notarization, the order allows Notaries to charge a fee of up to $25 to cover the use of a platform.

Read the executive order.

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