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Executive Order

NH Governor's Emergency Order #11 (2020)

Notary Law Update: NH Governor's Emergency Order #11 (2020)

State: New Hampshire

Summary:

Governor Sununu of New Hampshire issues a temporary order authorizing Notaries to perform remote online notarizations (RON).

Signed:  March 23, 2020

Effective:  March 23, 2020

Chapter: N/A

Affects:

All New Hampshire Notaries Public

Changes:
  1. Defines “commissioned”, “electronic”, “electronic record”, “electronic signature”, “information”, “law”, “notarization”, “notarial officer”, “person”, “record”, “requirement”, “simultaneously”, “stamp or seal of office” and “state”.
  2. Authorizes a notarial officer commissioned under the laws of New Hampshire to perform a notarization for an individual not in the physical presence of the notary officer if certain minimum standards are met.
  3. Requires the individual and the notarial officer to communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization.
  4. Requires the notarial officer to reasonably identify the individual by one or more of the following: (a) personal knowledge of the individual; (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; or (c) by oath or affirmation of a credible witness who is in the physical presence of either the notarial officer or the individual or is able to communicate with the notarial officer and the individual 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 individual and has been reasonably identified by the notarial officer under (a) or (b) above.
  5. Requires the notarial officer to create an audio and visual recording of the performance of the notarization either directly or through an agent.
  6. Requires the notarial officer to retain the recording as a notarial record during the term of the notarial officer’s office, including renewals thereof, unless a law of New Hampshire requires a different period of retention, and if any laws of the state govern the content, retention, security, use, effect, and disclosure of such recording and any information contained in it such recording shall be subject to those laws.
  7. Requires that when performing a notarial act for an individual physically located outside the geographic boundaries of the New Hampshire the record must be intended for filing with or relate to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of the State of New Hampshire; or involve property located in the territorial jurisdiction of New Hampshire or a transaction substantially connected to New Hampshire.
  8. Requires that when performing a notarial act for an individual physically located outside the geographic boundaries of New Hampshire the notarial officer must have no actual knowledge that the act of making the statement or signing the record is prohibited by the laws of the jurisdiction in which the individual is physically located.
  9. Clarifies that if a New Hampshire law requires an individual to appear personally before or be in the physical presence of a notarial officer at the time of a notarization that requirement is be satisfied if the individual and the notarial officer 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 nothing in the executive order requires a notarial officer commissioned under the laws of New Hampshire to perform a notarization (a) with respect to an electronic record; (b) for an individual not in the physical presence of the notarial officer; or (c) using a technology that the notarial officer has not selected.
  11. Provides that once signed, the requesting person shall mail the signed copy of the documents to the notarial officer for certification and execution with the notarial officer’s signature and the official stamp or seal.
  12. Clarifies that the official date and time of the notarization shall be the date and time when the notarial officer witnesses the signature via the electronic devices that provide the audio/video presence.
  13. 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 or transaction that is the subject of a notarization or from seeking other remedies based on State or Federal law other than the executive 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, execute or adopt on the record a tangible symbol; or attach to or logically associate with the record an electronic signature; (b) that an individual was incompetent, lacked authority or capacity to execute the record, or did not knowingly and voluntarily execute a record; or (c) of fraud, forgery, mistake, misrepresentation, impersonation, duress, undue influence, or other invalidating cause.
  14. Clarifies that nothing in the executive order affects or supersede a New Hampshire law or rule governing, authorizing, or prohibiting the practice of law.
  15. Provides that the failure of a notarial officer to meet a requirement specified in the executive order shall not invalidate or impair the recognition of a notarization performed by the notarial officer under the authority granted in the executive order.
  16. Provides that the executive order shall not be construed to create a public or private cause of action or remedy.
  17. Provides that the executive order shall not affect the validity of a notarization performed before its effective date, and further provides that the validity and recognition of a notarization performed pursuant to the terms of the executive order and during the period of its authority, shall not be affected by the subsequent expiration, modification, amendment or revocation of the executive order.
  18. Provides that if 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 executive order and the application of the provisions to other persons or circumstances shall not be affected thereby.
Analysis:

New Hampshire becomes the latest state to issue an executive order allowing the temporary performance of remote online notarizations by notarial officers of the state. The executive order is based on the bill introduced in the U.S. Senate (U.S. SB 3533) but adds an interesting twist: after the parties meet online using audio-visual communication, the signer must mail the signed document to the Notary for the Notary to sign and authenticate with the Notary's seal. The date and time of the notarization entered into the paper document must be the date and time the parties appeared online using audio-visual communication technology. The order is in force for the duration of the State of Emergency declared in Executive Order 2020-4.

Read the executive order.

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