2019 Notary Law Updates

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 2019 Adopted/Enacted Notary Legislation
 
Page Last Updated: June 2020
 EFFECTIVE:
JAN. 2019 FEB. 2019 MAR. 2019 APR. 2019
California-AB 2533
Illinois-SB3443
Minnesota-
SF No. 893
Rhode Island-HB 7502
Louisiana -HRC 31 Michigan-SB664
Michigan-SB996
Michigan-SB997
Michigan-SB998
Michigan-SB999

Arkansas-SB346
West Virginia-SB199
Maine-LD384
Nevada-AB65
New York-SB1505
Tennessee-Emergency Admin Rule
MAY 2019 JUNE 2019 JULY 2019 AUG. 2019
Utah-HB408
Indiana-HB1487(some provisions eff. July 2019)
Louisiana-HB134
Nevada-AB280
West Virginia-SB669
Texas-HB4181
Idaho-HB209 (course of study eff. July)
Arizona-
HB2656
Indiana-SB372

Arkansas-HB1119
Arizona-HB2054
Rhode Island-HB7080
South Dakota-HB1272
Tennessee-SB1758
Vermont-HB526

Montana-HB624
Indiana-HB1487 (some provisions eff. May 2019)
Vermont-HB104

Nevada-AB275
District of Columbia-B352
North Dakota-HB1110
Louisiana-HB44
South Carolina-HB3243

New Hampshire-HB256
SEPT. 2019 OCT. 2019 NOV. 2019 DEC. 2019
Ohio-SB263
Maine-LD8

Texas-SB2128
Montana-HB370
Connecticut-SB320

Nevada-SB223
Utah-HB52 .
 

ARIZONA - HB 2054
Eff. 07.01.2019
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Amends the provisions enacted by House Bill 2656, which was signed into law in 2018 with a delayed effective date of July 1, 2019.

House Bill 2656 authorized testators to create a list will in electronic form, established requirements for such electronic wills, and provided for an electronic will to be self-proved before a Notary Public following all applicable Arizona laws regarding electronic notarization and notarial acts.

House Bill 2054 amends those not-yet- effective statutory provisions. (Substantive changes follow.)

1. Amends the 2018 enacting bill’s definitions of “certified paper original,” “electronic medium” [now “electronic” not “electronic medium”] and “electronic signature.” 
2. Adds definitions for “original will” and “tangible medium.”
3. Changes “document” to tangible medium in a provision regarding how a testator’s intent may be established.
4. Deletes a provision stating that the signing of a will by an interested witness does not invalidate the will or any provision of it.
5. Adds a new provision stating that for any will executed on or after October 1, 2019—unless the will is made self-proved as prescribed in Section 14-2504 or 14-2519—a person may not act as a witness to a will if that person is a devisee [“devise” is a defined term] under that will or is related by blood, marriage or adoption to a devisee under that will.
6. Adds a new provision stating that for purposes of Section 14-2505, “devisee” means a person who is designated in the will to receive a devise or who is a beneficiary of a trust that is designated in the will to receive a devise.
7. Clarifies provisions dealing with validity of an electronic will.
8. Clarifies that an electronic will must contain a copy of the testator’s government-issued ID card that was current at the time of the will’s execution.
9. Clarifies language relating to a self-proved electronic will.
10. Adds a new provision providing that a qualified custodian (defined) maintains an electronic will as a bailee, and the electronic will is the property of the testator and not the bailee.
11. Amends various occurrences of the phrase “in the custody” to instead read “under the exclusive control.”
12. Makes various conforming amendments necessitated by the substantive revisions made by HB 2054.

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ARIZONA - HB 2656
Effective 07.01.2019
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Allows testators to create a will in electronic format.

1. Provides requirements for creation and execution of an electronic will.
2. Provides requirements for an electronic will to be self-proved:
   a. It must meet the fundamental requirements for a self-proved will under Arizona Revised Statutes § 14-2404 (a will’s acknowledgment by the testator, and execution of affidavits by witnesses, before a notary public or other officer authorized to administer oaths)
   b. It must contain the electronic signature and electronic seal of a notary public (it is electronically notarized)
   c. It must designate a qualified custodian to maintain custody of the electronic will
   d. It must be maintained by the designated, qualified custodian “at all times” before it may be offered for probate or reduced to a certified paper copy.
3. Requires a qualified custodian, among other responsibilities, to maintain an audio-video recording of the will’s execution including actions performed by a notary public.
 

ARKANSAS - SB 346
Eff. 03.18.2019
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Amends Arkansas law concerning procedures for petitions and referred constitutional amendments.

1. Under current law, a petition part and all signatures appearing on it shall not be counted (including an initial count) for any purpose by the official charged with verifying the signatures, if one or more circumstances are true.

One such circumstance is the lack of a Notary signature or Notary seal on a canvasser verification. Senate Bill 346 further clarifies by adding the circumstance of a canvasser’s verification lacking a legible Notary signature or legible Notary seal.
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ARKANSAS - HB 1119
Eff. 07.05.2019
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Clarifies and amends statutory provisions concerning the appointment and commission of a Notary Public in the Natural State. Authorizes a United States military service member’s nonresident spouse who is employed or operating a business in Arkansas to apply for a Notary Public commission. 

Law changes are emphasized by underline formatting.

1. Requires an applicant to state on the Notary Public application that he or she is one (1) of the following:
a. A bona fide citizen of the United States;
b. A permanent resident alien who shall file with his or her application a recorded Declaration of Domicile;
c. A legal resident of Arkansas;
d. A legal resident of an adjoining state and employed or operating a business in the State of Arkansas; or
e. A nonresident spouse of a United States military service member employed or operating a business in Arkansas.
   • If the applicant is a nonresident spouse of a United States military service member employed or operating a business in Arkansas, he or she must include with the Notary Public application one (1) copy of a United States Department of Defense DD Form 1173 or a United States Department of Defense DD Form 1173-1, otherwise known as a Uniformed Services Identification and Privilege Card.
2. Requires an applicant to also state that he or she is eighteen (18) years of age or older; able to read and write English; provide the address of his or her place of employment, business or residence in Arkansas; that during the past ten (10) years, his or her commission as a Notary Public has not been revoked; and that he or she has not been convicted of a felony.

3. Requires a Notary Public applicant who is a nonresident spouse of a United States military service member to file his or her surety bond or surety contract in the Arkansas county of his or her place of employment or business.

4. Provides conforming amendments to make statutory procedures relating to change of place of employment applicable to an Arkansas Notary who is a nonresident spouse of a United States military service member.
 
CALIFORNIA - AB 2533
Effective 01.01.2019
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Requires that an inmate in a state prison who has maintained an inmate trust account with $25 or less for 30 consecutive days be deemed indigent.  Requires that an indigent inmate be provided with sufficient resources to communicate with and access the courts, and provides examples of such resources.

1. Provides that an indigent inmate shall be provided with the services of a Notary Public for the purpose of notarizing a signature on a document, as required.

 

CONNECTICUT - SB 320
Signed 6-28-19; effective 10-1-19
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Prohibits any person from conducting a real estate closing in Connecticut unless the person is admitted to practice law in Connecticut and has not been disqualified to practice due to resignation, disbarment, or placement on inactive status or suspension.

1. Defines “real estate closing” to mean a closing for: (a) a mortgage loan transaction, other than a home equity line of credit transaction or any other loan transaction that does not involve the issuance of a lender's or mortgagee's policy of title insurance in connection with such transaction, to be secured by real property in this state, or (b) any transaction wherein consideration is paid by a party to such transaction to effectuate a change in the ownership of real property in this state.

2. Provides that any person who violates the requirements of SB 320 has violated Connecticut General Statutes §51-88, Subsection (a) (dealing with practice of law by persons not admitted as attorneys) and is subject to the penalties set forth therein.
 

DISTRICT OF COLUMBIA - B352
Signed and effective 07.22.2019
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Repeals Section 35 of the Revised Uniform Law on Notarial Acts Act of 2018, effective December 4, 2018 (D.C. Law 22-189; 65 DCR 11606).  This section, dealing with endorsement as an electronic Notary and selection of electronic notarization technology, was not funded and thus repealed.

Repealed language:
Sec. 21. Requirement of endorsement as electronic notary; selection of technology.
(a) A notary public shall not perform notarial acts with respect to electronic records unless the notary public has received an endorsement as an electronic notary pursuant to section 20(i).

(b) An electronic notary may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. An electronic notary shall not be required to perform a notarial act with respect to an electronic record with a technology that the electronic notary has not selected.

(c) Before a notary public holding an endorsement as an electronic notary performs the notary's initial notarial act with respect to an electronic record, the notary shall complete a training course provided by the Mayor, shall take the oath prescribed for civil officers in the District of Columbia, identify the tamper-evident technologies the electronic notary intends to use, and file an exemplar of the electronic notary's electronic signature and official seal. If the Mayor has issued rules establishing standards for approval of technology pursuant to section 32, the technology shall conform to the prescribed standards. If the technology conforms to the standards, the Mayor shall approve the use of the technology.
 

ILLINOIS - SB 3443
Effective 01.01.2019
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Amends the Illinois Notary Public Act (5 ILCS 312) by changing Sections 2-102, 6-104, 7-101 and 7-108, as follows.

1. Clarifies that the application for Notary Public, prescribed by the Secretary of State, shall state the applicant’s business address if different than the applicant’s residence address, if performing notarial acts constitutes any portion of the applicant’s job duties.  

2. Clarifies that the Secretary of State’s verification of information provided in a Notary Public application (authorized by the applicant’s signature on the application) includes a criminal background of the applicant, if necessary.

3. Clarifies that the conditions causing a Notary commission to cease being in effect include when any Notary Public changes his or her business address without notifying the Index Department of the Secretary of State in writing, within 30 days (of the change)

4. Requires that when a Notary Public commission ceases to be in effect, the Notary’s notarial seal shall be surrendered to the Secretary of State and the Notary’s certificate of notarial commission shall be destroyed.

5. Prohibits a Notary Public from performing any notarial act when his or her commission is suspended or revoked.

6. Explicitly prohibits a Notary Public from failing to comply with any term of suspension imposed for violation of Illinois’ notary statutes detailing prohibited acts (5 ILCS 312/6-104). 

7. Requires entities that issue bonds to Illinois Notaries to notify the Secretary of State whenever payment is made on a claim against the bond, and the circumstances which led to the claim.

8. Significantly expands statutory provisions dealing with the Secretary of State’s investigation of a Notary Public’s actions and resulting sanctions.

9. Clarifies that Section 5 ILCS 312/7-108 addresses reprimand of a Notary Public and suspension of a Notary Public commission, in addition to commission revocation.

10. Adds a conviction for any misdemeanors, including those defined under specified sections of Illinois’ Criminal Code of 2012, as a cause that the Secretary of State may revoke a Notary Public commission.

11. Authorizes the Secretary of State to investigate whenever the Secretary believes a violation of Article VII of the Illinois Notary Public Act has occurred; such investigation may also be based upon a signed written complaint submitted on the Secretary’s form provided for this purpose.

12. Requires the Secretary of State to investigate written complaints which on their face, if the facts were proven to be true, would constitute an act of misrepresentation or fraud on the part of the Notary Public.

13. Establishes that a Notary’s failure to cooperate with or respond to an investigation by the Secretary of State constitutes a failure to fully and faithfully discharge the responsibilities and duties of an Illinois Notary Public, and shall result in commission suspension or revocation.

14. Specifies the reasons that the Secretary of State may deliver a written official warning and reprimand to a Notary, or may revoke or suspend a Notary Public commission.

15. Requires the Secretary of State to take one of more of the following actions, following investigation and determination that a Notary Public has committed any prohibited act involving notarization of a document:  issue a letter of warning to the Notary; order a commission suspension or revocation; refer the allegations against the Notary to the State’s Attorney’s Office or the Attorney General for criminal investigation; or refer to the allegations to the Illinois Attorney Registration and Disciplinary Commission for disciplinary proceedings.

16. Requires a Notary Public whose commission has been revoked to immediately deliver his or her official seal to the Secretary of State.

17. Establishes an ineligibility period of at least five years for any person whose Illinois Notary Public commission is revoked and who wishes to later apply for a new commission (starting from the date of final revocation).

18. Allows a Notary Public to voluntarily resign her or her commission by notifying the Secretary of State in writing, and physically returning his or her official seal (“stamp”).  Provides that voluntary resignation does not stop or preclude any investigation into a Notary Public’s conduct, or prevent further suspension or revocation by the Secretary of State.

19. Provides that a Notary Public is entitled to an administrative hearing upon receiving notice of suspension or revocation from the Secretary of State.

20. Requires the Secretary of State to adopt administrative hearing rules applicable to the provisions of 5 ILCS 312/7-108 (Reprimand, Suspension and Revocation of Commission).
 

INDIANA - HB 1487
Signed 05.01.2019; effective upon passage or on 07.01.2019, as specified below.
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Amends and clarifies 2017 and 2018 revisions to Indiana’s Notary Public laws. The 2017 revisions that are amended by HB 1487 were already in effect. The 2018 revisions that are amended by HB 1487 are not effective until July 1, 2019.

1. Amends Indiana Code (IC) 33-42-9-12, by clarifying that an Indiana Notary Public’s notarial certificate must display the expiration date of the Notary Public’s commission; and either of the following:  the Indiana county of the [resident] Notary Public’s commission; or the Indiana county where the Notary Public is primarily employed IF the Notary is not an Indiana resident
[Amended upon passage statutes in effect until 7-1-19. Amends statutory language enacted in 2018 and effective on 7-1-19.)]
 
2. Removes requirements that the Secretary of State must administer the Notary Public applicant examination under IC 33-42-12-2; and Notary Public continuing education also under IC 33-42-12-2. 
[Effective upon passage.]

3. Makes a technical correction to IC 33-42-13-3, regarding those for whom a Notary Public may not perform a notarial act. 
[Amended upon passage statutes in effect until 7-1-19.  Amends statutory language enacted in 2018 and effective on 7-1-19.)]

4. Amends IC 33-42-13-3 by adding the prohibition that a Notary Public may not perform a notarial act when the Notary’s commission is suspended or revoked.
[Amended upon passage statutes in effect until 7-1-19.  Amends statutory language enacted in 2018 and effective on 7-1-19.)]
 
5. Amends IC 33-42-14-1 by clarifying that a Notary Public may charge a fee of not more than ten dollars ($10) per signature for each of the authorized, specified notarial acts.
[Amended upon passage statutes in effect until 7-1-19.  Amends statutory language enacted in 2018 and effective on 7-1-19.)]

6. Amends and clarifies IC 33-42-15-2 relating to the Secretary of State’s authentication of the signature of an Indiana public official. 
[Effective upon passage.]
 
7. Amends IC 33-42-16-2 to establish that the Secretary of State may amend administrative rules adopted under this section, as determined necessary resulting from changes in electronic and remote notarial act technology.
[Effective upon passage.]

8. Creates new Section 33-42-16-5 of the Indiana Code, providing that the Secretary of State shall issue a certificate of fact for a Notary Public upon any person’s request. Establishes that a certificate of fact must state the Notary Public’s name; commission expiration date; county of commission; and that the records of the Secretary of State indicate that the Notary Public’s commission is active. Provides that such a certificate of fact ay be relied upon as conclusive evidence of the facts stated in the certificate, subject to any qualifications specified in it.
[Effective July 1, 2019.]
 
9. Amends the following new sections of Indiana Code, created in 2018 and not effective until July 1, 2019. These sections are in Chapter 17, Remote Notarial Acts.
  • Amends IC 33-42-17-1 by clarifying the applicability of Chapter 17, Remote Notarial Acts, which will apply only to a remote notarial act performed the earlier of (1) the effective date of rules adopted under IC 33-42-16-2; or (2) July 1, 2020. [Effective July 1, 2019]
  • Amends IC 33-42-17-2 by adding an eligibility requirement for Indiana Notaries Public wishing to register as a Remote Notary Public with the Secretary of State. Such Notaries Public must also pass a remote notarial act examination administered by the Secretary of State. [Effective July 1, 2019.]
  • Amends IC 33-42-17-3 by revising a reference in Sec. 3(i) from “notarization” to “notarial act.”  [Effective July 1, 2019.]
  • Amends IC 33-42-17-6 to remove technology-specific references relating to a technology vendor’s backup strategy for a Remote Notary Public’s records of remote notarial acts.  [Effective July 1, 2019.]
  • Amends IC 33-42-17-8 by extending the period of time that a Remote Notary Public must maintain the contents of an electronic journal, from at least five (5) years to at least ten (10) years.  [Effective July 1, 2019.]
  • Amends IC 33-42-17-9 by increasing the fee that a Remote Notary Public may charge for each remote notarial act, from fifteen dollars ($15) to twenty-five dollars ($25).  [Effective July 1, 2019.]

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INDIANA - SB 372
Effective 07.01.2019, except that Sec. 61 (Secretary’s rulemaking authority) was effective upon the bill’s passage
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Senate Bill 372 enacts remote notarization, making Indiana the fifth state to authorize the use of audio visual communications technology in the performance of a notarial act. Remote notarization is addressed in new Chapter 17 of Article 42, Indiana Code. Senate Bill 372 also creates new statutory provisions impacting electronic notarization. 
 
Senate 372 is applicable only to notaries public commissioned or recommissioned after June 30, 2019. A notary commission in effect on July 1, 2018 continues until its date of expiration. 

Key Definitions (summarized; not verbatim)
1. “Record”- retrievable information that is memorialized on a tangible medium or stored electronically.
2. “Electronic record”- a record communicated, created, generated, received, sent or stored by electronic means.
3. “Electronic signature”- an electronic process, sound or symbol that is adopted by an individual for the purpose of electronically signing an electronic record.
4. “Sign”- associating an electronic process, sound, or symbol with a record; or attaching it to a record; with the intent of adopting or authenticating the record.
5. “Signature”- a tangible symbol; or electronic process, sound or symbol; that evidences the signing of a record.
6. “Notarial act”-  with respect to a tangible or electronic record, is taking an acknowledgment; administering an oath or affirmation; taking a verification on oath or affirmation; attesting to or witnessing a signature; attesting to or certifying a copy of a tangible document or record or an electronic document or record; noting a protest of a negotiable record; any other act authorized by common law or the custom of merchants.
7. “Notary public”-  an individual commissioned by the Secretary of State to perform notarial acts.
8. “Notarial officer”-  an individual authorized under Indiana Code 33-42-9-7(a) to perform a notarial act.  Notaries public are also notarial officers.
9. “Official seal”- a physical image, affixed or embossed on a tangible record; or an electronic image, attached to or associated with an electronic record.

10. “Electronic seal”- information that is specific to an individual notary public; is attached to or associated with a notarized electronic record; contains the words “notary public,” State of Indiana,” and “seal”; the notary public’s name as it appears on his or her commission certificate; the words “commission number” followed by the commission number of the notary public; and the words “my commission expires,” followed by the expiration date of the notary public’s commission.
11. “Stamping device”-  a physical device used to affix or emboss an official seal on a tangible record; or an electronic device or process that can pair an electronic seal with an electronic record.
12. “Appearance or appear”- an individual’s physical presence before a notarial officer for performance of a notarial act, such that the principal and notarial officer are able to interact and physically exchange tangible credentials or other documentation; or using audio visual communication.
13. “Technology”- an application, device or program that allows a notarial officer to perform a notarial act electronically, or to perform a remote notarial act.
14. “Credential”- a valid, government-issued form of identification that bears a photograph and the signature of the credential-holder.

15. “Remote presentation”- an electronic transmission by a principal, to a remote notary public, of an image of a credential that is of sufficient quality for its use in credential analysis.
16. “Credential analysis”-  a process or service approved by the Secretary of State, performed by a third person, and through which a review of public and proprietary data sources provides confidence in the validity of an identification credential.
17. “Audio visual communication”-  real time, two-way, visual and auditory communication through technology.
18. “Identity proofing”- a process or service approved by the Secretary of State, and through which review by a third person of personal information, obtained from public and proprietary data sources, affirms the identity of an individual.  “Identity proofing” may include dynamic knowledge-based authentication assessment.
19. “Dynamic knowledge-based authentication assessment”- a questionnaire consisting of questions about a principal. The questions are derived from public and private data sources; have not been previously answered by the principal; are answered by the principal; and reviewed by a remote notary public to assist in verifying the principal’s identity.

20. “Public key infrastructure”- a method of enabling a user of an unsecured public computer network, including the Internet, to securely and privately exchange data and money through a public and private cryptographic key pair that is obtained and shared through a trusted certificate authority.
21. “Remote notarial act”-  specified notarial acts (see NOTE under Authorized Duties below) that are performed through audio visual communication and involve an electronic (not tangible) record.
22. “Remote notary public”-  a notary public authorized by the Secretary of State to perform a remote notarial act pursuant to Indiana law.
23. “Electronic notarial certificate”- a notarial officer’s certificate, completed in the performance of an electronic notarial act involving an electronic record.  Senate Bill 372 creates various distinctions between notarial certificates involving electronic records versus tangible record.
24. “Exclusive control”- exclusively having, at all times, direct physical or intellectual custody of a password to access, or the ability to use another secure means of authentication of, an electronic record.

Registration to Remotely Notarize, Selection of Technology
A notary public is not required to perform remote notarial acts. Those who do wish to notarize remotely must be eligible and must first register with the Secretary of State, in accordance with the Secretary’s administrative rules.

To be eligible to register to notarize remotely, a notary public must:
  1. hold a current Indiana notary public commission;
  2. comply with Indiana’s notary public continuing education requirements;
  3. be able to competently operate audio visual communication technology and use identity; proofing and credential analysis technology;
  4. pay a $5 registration fee.

Registration as a remote notary public expires on the date that the notary’s current commission ends.  A remote notary public may not perform remote notarial acts unless his or her registration to do so is active.

In accordance with Senate Bill 372, the Secretary of State will not accept remote notary registration applications for processing until the Secretary’s required administrative rules are implemented, and technology vendors are approved by the Secretary. Senate Bill 372 provides the minimum standards for technology to be approved by the Secretary of State, but technology vendors may not be approved before administrative rules are in effect.

Before performing a remote notarization, an Indiana remote notary must first select an audio visual communications technology from among those approved by the Secretary of State; and notify the Secretary of the selection. A remote notary public may select one or more approved technologies, and may not be required to use a technology the remote notary public has not selected. No later than 30 days after a change in technology used, a remote notary public must notify the Secretary of State of the change.

A remote notary public must take “reasonable steps” to ensure that audio visual technology used in a remote notarial act is secure from unauthorized interception. 

Authorized Duties
Indiana notaries public may perform the following notarial acts with respect to a tangible (paper) or electronic record: 
  1. taking an acknowledgment;
  2. administering an oath or affirmation;
  3. taking a verification on an oath or affirmation;
  4. attesting to or witnessing a signature;
  5. attesting to or certifying a copy of (A) a tangible document or record or (B) an electronic document or record;
  6. noting a protest of a negotiable record;
  7. any other act authorized by common law or the custom of merchants.
NOTE:  Of these authorized acts, Indiana remote notaries may perform (with respect to electronic records) acknowledgments, oaths or affirmations, verifications on oath or affirmation, signature witnessing or attestations, and copy certifications or attestations. An Indiana remote notary must be physically located in Indiana to perform a remote notarization.

Principal’s Appearance
For remote notarizations involving a statement made in or a signature executed on a record, the principal may appear by audio visual communications OR may physically appear before the remote notary public.

For purposes of a remote notarial act, a principal is an individual whose electronic signature is reflected on a document that is notarized and contained in an electronic record; who has taken an oath or affirmation administered by a remote notary public; or whose electronic signature is reflected on a document that is notarized and contained in an electronic record after an individual has taken an oath or affirmation administered by a remote notary public.

A principal is not an individual who has taken an oath or affirmation, administered by a remote notary public, in the capacity of a witness for a remote notarial act.

Identifying Principals
A remote notary public may verify the identity of a principal through:
  1. personal knowledge;
  2. a (single) credible witness;
  3. remote presentation by the principal of identification credential, together with the remote notary public’s visual inspection of the credential coupled with credential analysis and identity proofing of the principal that may include dynamic knowledge-based authentication or use of a public key infrastructure;
  4. another method using technology that meets or exceeds the Secretary of State’s standards for approving technology.

Certificate of Electronic Notarial Act
An electronic notarial certificate is the part of or attachment to an electronic record that is completed by a notarial officer, bears the notarial officer’s electronic signature and electronic seal, and states the facts attested to by the notarial officer in a notarial act.

For an electronic notarial act performed by a notary public, the electronic notarial certificate must be (a) signed and dated by the notary public; (b) must identify the jurisdiction in which the notarial act is performed (the county and state in which the principal appears before the notary public—i.e, the venue); (c) display the notary public’s title; and (d) display the notary public’s county of commission and commission expiration date. In addition, (e) the notary public’s electronic seal must be attached to or associated with the electronic notarial certificate.   

A notary public’s electronic notarial certificate for a remote notarial act must contain items (a), (c), (d) and (e) above. It also must specify that the act was performed remotely; indicate whether the principal appeared in the remote notary’s physical presence or by audio visual communications; specify the Indiana city and county of the remote notary’s physical location at the time of the notarial act (this location is also used for the venue notation); and specify the city, county, state or province, and county in which the principal is physically located when the principal signs the document. Senate Bill 372 provides certificate forms that satisfy these requirements.

A notary public (or any notarial officer) may not affix a signature to, nor associate a notarial certificate or electronic notarial certificate with, a record until the notarial act has been performed. 

Senate Bill 372 further provides that an Indiana notary public and other notarial officers may subsequently correct any information included or omitted from a certificate of a notarial act or an electronic notarial certificate that the notary public or other notarial officer executed.

Recording of Remote Notarizations
A remote notarization performed by an Indiana remote notary must be captured by audio visual recording, even if the remote notarization is not completed. Prior to performing a remote notarization, the remote notary public must inform participating parties that an audio visual recording of the event will be captured.

The captured audio visual recording must include:
  1. a recitation by the remote notary public of information sufficient to identify the specific remote notarial act performed, and explaining whether the principal’s identity was authenticated through the remote notary public’s personal knowledge of the principal’s identity or if it was authenticated by a credible witness;
  2. a confirmation by the principal that his or her electronic signature is freely and voluntarily issued.

Electronic Journal Requirements
A remote notary public must enter each remote notarial act in an electronic journal, which must be maintained and kept under the remote notary public’s exclusive control. The remote notary public must also use commercially reasonable means to prevent unauthorized access to the electronic journal, and provide for the lawful copying and inspection of the electronic journal. These responsibilities cannot be performed by an employer on the remote notary public’s behalf.

A remote notary public may maintain more than one electronic journal at a time.   remote notary public may not delete, destroy, overwrite or render an electronic journal inaccessible unless ordered to do so by the Secretary of State. A remote notary public must notify the Secretary of State upon learning that an electronic journal is lost, stolen or compromised.

Required features of an electronic journal include use of a password or other secure means of authentication to gain access to the information in the electronic journal; and the ability to print or produce a tangible record of any entry logged in the electronic journal.

An electronic journal entry for each remote notarial act must consist of:
  1. the date and time of the remote notarial act;
  2. the type of remote notarial act;
  3. a title or description of the electronic record for each remote notarial act;
  4. the full name of the principal;
  5. a description of the manner by which the identity of the principal was authenticated or verified;
  6. a description of any credential and the credential’s corresponding date of expiration used to authenticate or verify the identity of the principal
  7. a listing of every type of fee, and every fee amount, charged by the remote notary public for each remote notarial act
  8. any other information required by the Secretary of State.

A remote notary public who no longer holds a commission (resignation or commission expiration) must maintain the contents of an electronic journal for at least five years after performance of the last remote notarial act recorded in the journal.

Remote Notary Fees
A remote notary public may charge a fee not exceeding $15 for each remote notarial act.

A remote notary public may also charge a “reasonable” fee to recover expenses related to copying of electronic journal entries, or audio visual recording(s) of remote notarial acts.

Remote Notarizations, Governing Law
A remote notarization performed by an Indiana remote notary public is considered to have been performed in Indiana, regardless of the physical location of the principal at the time of notarization. (The principal may be in Indiana; within another U.S. state including the District of Columbia, or a territory or possession subject to U.S. jurisdiction; or outside the United States subject to specified requirements.) Remote notarizations performed by Indiana remote notaries are governed by Indiana law, as are determinations of the validity of a remote notarization by an Indiana remote notary.

Senate Bill 372 provides a presumption of validity of remote notarial acts performed by an Indiana remote notary, and also addresses what presumed validity does not do or prevent from occurring.

Implementing Rules
The Secretary of State must (“shall”) adopt rules to implement the provisions of Senate Bill 372, including rules to:
  1. prescribe processes for conditioning, denying, granting, renewing, revoking or suspending notary public commissions and remote notary public registrations;
  2. prescribe standards to ensure the trustworthiness of individuals applying for or possessing a notary public commission or remote notary public registration;
  3. establish processes for accepting and approving assurances (surety bonds and functional equivalents);
  4. prescribe the manner by which notarial acts involving tangible and electronic records are performed;
  5. ensure that any change to or tampering with a notarized electronic record is self-evident;
  6. specify requirements for secure creation, storage, transmission and authentication of electronic records, electronic seals and electronic signatures;
  7. establish standards for approval of, for use in Indiana, audio visual communication technology, identity proofing, credential analysis, dynamic knowledge-based authentication, biometrics, other methods of identification (Senate Bill 372 provides the minimum standards for technology to be approved by the Secretary of State, but technology vendors may not be approved before administrative rules are in effect);
  8. establish standards related to electronic notarial certificates.

In adopting, amending or repealing rules governing electronic records or remote notarial acts, the Secretary of State must consider recent standards issued by national bodies such as and including the National Association of Secretaries of State; plus actions of other governmental entities and officials; and the customs, practices and standards of other jurisdictions.

Miscellaneous
The Secretary of State must maintain, on the Secretary’s website, an electronic database of active remote notaries public and vendors of technology approved by the Secretary for use by in Indiana.
 

LOUISIANA - HB 44
Signed 05.24.2019; effective 08.01.019
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Authorizes the president of the DeSoto Parish Police Jury to designate/appoint no more than two employees to act as ex officio Notaries Public. 

1. These appointed ex officio Notaries Public:
  • May only to administer oaths, receive sworn statements, and execute affidavits and acknowledgments within their respective jurisdictional limits, solely on matters within the official functions of the office of the DeSoto Parish Police Jury.
  • Need not obtain a bond.
  • Shall perform notarial acts without charge or compensation.

2. Authorizes the president of the Police Jury to suspend or terminate such an appointment in his or her office at any time.  Provides that separation of employment from the parish shall automatically terminate the person’s appointment as an ex officio Notary Public.
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LOUISIANA - HB 134
Signed and effective 05.24.2019
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Amends Louisiana Revised Statutes Sec. 35:191 A.(1)(d), relating to Notary Public appointments, qualifications and examination.

1. Revises the qualification concerning the applicant’s prior schooling, by clarifying that the applicant must have received a high school diploma, a diploma for completion of a home study program approved by the State Board of Elementary and Secondary Education, or must have been issued a high school equivalency diploma after successfully completing a high school equivalency test approved by the Board of Supervisors of Community and Technical Colleges.
2. Amends the deadline for an applicant to submit an application and fee or register to take Louisiana’s Notary Public exam, to no later than thirty days prior to the date of the examination.
3. Repeals Louisiana Revised Statutes Sec. 35:191(V) and (W)—both expired—in their entirety. 
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LOUISIANA - HCR 31
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Directs the Louisiana State Law Institute to study electronic notarial acts including remote notarization, and submit proposed enacting legislation to the Louisiana Legislature no later than February 1, 2019.
 

MAINE - LD 8
Signed 05.08.2019; effective 09.17.2019
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Allows and recognizes a legal name change upon marriage.  [Reported because Maine authorizes Notaries Public to solemnize marriage vows.]

1. Establishes that an application for marriage must include the names of both parties.
2. Requires that if a party intends to change that party’s name upon marriage, the application must include the proposed new name of that party.
3. Requires that a marriage license returned to the issuing clerk following the marriage ceremony must also include the new name of either party if either party intends to change that party’s name.
4. Establishes that when a marriage license indicates that a party intends to change that party’s name, the new name indicated on the license becomes effective upon completion of the marriage license pursuant to Maine’s laws governing marriages.

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MAINE - LD 384
Effective 04.05.2019
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Enacts a resolution that the Secretary of State shall review the Revised Uniform Law on Notarial Acts (RULONA) and submit a report to the Joint Standing Committee of the Judiciary no later than January 15, 2021.  The report shall recommend whether the Maine Legislature should adopt the RULONA with or without changes, and include any proposed implementing legislation.

Following receipt and review of the report, the joint standing committee is authorized to report out a bill to the First Regular Session of the 130th Legislature.
 

MICHIGAN - SB 664
Eff. 03.12.2019
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Summary: Amends existing sections of the Michigan Notary Public Act (2003 PA 238) and adds new sections. Renames the act as the Michigan Law on Notarial Acts (“the Law”). Amends, adds and relocates key definitions.

Amends and clarifies statutes relating to electronic notarization (performed for physically present signers and those who are present remotely/online), and adds new statutory provisions.

Definitions
1. Relocates existing definitions for “credential analysis,” “identity proofing” and “remote electronic notarization platform” from Sec. 26b to Sec. 3 of the Law (thereby consolidating definitions in that section).
2. Amends and clarifies the following definitions (changes underlined for emphasis):
  i. “Acknowledgment” – a declaration by an individual in the presence of a Notary Public that he or she has signed a record for the purposes stated in the record and, if the record is signed in a representative capacity, that he or she signed the record with the proper authority and signed it as the act of the person represented and identified in the record.
  ii. “Electronic” – relating to technology that has electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  iii. “Information” – includes data, text, images, sounds, codes, computer programs, software, and databases.
  iv. “In a representative capacity” – means any of the following:
    a. For and on behalf of a corporation, limited liability company, partnership, trust, association, or other legal entity as an authorized officer, manager, agent, partner, trustee, or other representative of the entity.
    b. As a public officer, personal representative, guardian, or other representative in the capacity recited in the record.

    c. As an attorney in fact for a principal.
    d. In any other capacity as an authorized representative of another person.
  v. “In the presence of” – means either of the following:
    a. In the same physical location with and close enough to see, hear, communicate with, and exchange tangible identification credentials with another individual.
    b. Interacting with another individual by means of audio and visual communication technology that is part of a remote electronic notarization platform approved under Section 26b [of the Law].
  vi. “Notarial act” – means any of the following:
    a. An act, whether performed with respect to a tangible or electronic record, that a notary public commissioned in this state is authorized to perform including, but not limited to, taking an acknowledgment, administering an oath or affirmation, taking of a verification upon oath or affirmation, or witnessing or attesting a signature performed in compliance with this act.
    b. An act described in subparagraph (i) that is performed in another jurisdiction and meets the requirements of section 25a [of the Law].
  vii. “Official misconduct” – means one or more of the following:
    a. The exercise of power or the performance of a duty that is unauthorized, unlawful, abusive, negligent, reckless, or injurious.

    b. The charging of a fee that exceeds the maximum amount authorized by law.
  viii. “Person” –an individual or a corporation, business trust, statutory trust, estate, partnership, trust, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  ix. “Record” – information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  x. “Revocation – the termination of a notary public’s commission to perform notarial acts.
  xi. “Secretary” – as used in the [Law], means the Secretary of State or his or her designee.
  xii. “Signature” – as used in the [Law], means an individual’s written or printed name, electronic signature, or mark, attached to or logically associated with a contract or other record and executed, adopted, or made by the individual with the intent to sign the record.
  xiii. “Suspension” – as used in the [Law], means the temporary withdrawal of the Notary Public’s commission to perform notarial acts during the period of the suspension.
  xiv. “Verification on oath or affirmation” – as used in the [Law], means a declaration, made by an individual on oath or affirmation before a Notary Public, that a statement in a record is true.
3. Creates the following definitions:

  i. “Electronic notarization system” – a set or system of applications, programs, hardware, software, or technologies designed to enable a notary public to perform electronic notarizations.
  ii. “Electronic signature” – an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.
  iii. “State” – a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

Notarial Acts, Electronic Notarization
1. Clarifies language relating to a Notary Public’s stamp, seal or electronic process used to produce information required under Sec. 27, subsection (2). The Notary Public shall not use the stamp, seal or electronic process in a manner that renders anything illegible on the record being notarize, nor shall a Notary Public use an embosser alone or use any other method that cannot be reproduced.
2. Clarifies that if applicable (emphasis added), on each record notarized and in addition to other information required in Sec. 27 of the Law, the Notary Public must indicate whether the notarial act was performed using an electronic notarization system under Section 26a of the Law, or performed using a remote electronic notarization platform under Section 26b.
3. Requires a Notary Public, before performing his or her initial electronic notarial act, to notify the Secretary of State that the Notary Public will be performing notarial acts electronically and to identify the electronic notarization system the Notary Public intends to use for such acts.
4. Establishes that a person may not require a Notary Public to perform an electronic notarial act with an electronic notarization system that the Notary Public has not selected.
5. Authorizes a Notary Public to select one or more tamper-evident electronic notarization systems to perform electronic notarial acts.

6. Requires a Notary Public to select the electronic notarization system he or she will use from among the one or more systems approved by the Secretary of State and the Department of Technology, Management and Budget, if those offices have approved any such electronic notarization systems. Authorizes the Secretary to disallow use of an electronic notarization system if the system does not satisfy the criteria described in Sec. 26a of the Law.
7. Requires that by March 30, 2019, the Secretary and the Department of Technology, Management and Budget must review and approve at least one electronic notarization system for the performance of electronic notarizations in Michigan. Clarifies that the Secretary and Department may approve multiple electronic notarization systems, and may approve additional systems on an ongoing basis. Requires the Secretary and the Department, at least every four years, to review the approval criteria and whether currently approved electronic notarization systems remain sufficient.
8. Requires the Secretary of State and the Department to approve any electronic notarization system that is approved or certified by a government-sponsored enterprise as defined in 2 USC 622(8), if verifiable proof of that approval or certification is provided to the Secretary and Department. Approval by the Secretary of State and the Department is not required if use of the system is affirmatively disallowed by the Secretary. In considering whether to approve use of any other electronic notarization systems, the Secretary of State and the Department shall consider, at a minimum:

  i. The need to ensure that any change to or tampering with an electronic record containing the information required under this act is evident.
  ii. The need to ensure integrity in the creation, transmittal, storage, or authentication of electronic notarizations, records, or signatures.
  iii. The need to prevent fraud or mistake in the performance of electronic notarizations.
  iv. The ability to adequately investigate and authenticate a notarial act performed electronically with that electronic notarization system.
  v. The most recent standards regarding electronic notarizations or records promulgated by national bodies, including, but not limited to, the national association of secretaries of state.
  vi. The standards, practices, and customs of other jurisdictions that allow electronic notarial acts.

Commissioning
1. Authorizes the Secretary of State to develop and implement an electronic application and payment process for individuals seeking appointment as a Notary Public.
2. Clarifies that unless it is submitted electronically (via such an electronic application and payment process, if implemented), an application for appointment as a Notary Public must include the handwritten signature of the applicant.
3. Clarifies that the application processing fee of $10 must accompany an application or be paid electronically (via the Secretary’s electronic application and payment process, if implemented).

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MICHIGAN - SB 996
Eff. 03.12.2019
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Summary: Enacts extensive statutory provisions assuring the recognition of notarial acts performed outside of Michigan. Amends the Michigan Law on Notarial Acts (“the Law”).

Applicant for Appointment as a Michigan Notary Public
1. Relative to applying for appointment as a Michigan Notary Public, clarifies that:
  i. An individual cannot have been convicted of a felony, misdemeanor or violation described in Section 41 of the Law.
  ii. An applicant who does not reside in Michigan, in addition to other applicable requirements, must be engaged in an activity—in connection with the business that is her or her principal place of business in Michigan––that will likely require the applicant to perform notarial acts.
  iii. The Notary Public oath of office is prescribed under Section 13 of the Law.

Recognition of Notarial Acts
1. Amends Michigan’s statutes on recognition of notarial acts performed outside of Michigan, with the interstate recognition language of the Revised Uniform Law on Notarial Acts.
  i. Establishes that, if performed by certain specified (authorized) individuals, a notarial act performed in another state; or under the authority of and in the jurisdiction of a federally recognized Indian tribe; or under federal law; has the same effect under Michigan law as if performed by a Michigan Notary. Provides the same recognition for notarial acts performed under authority and in the jurisdiction of a foreign country or constituent unit of the foreign country, or performed under the authority of a multinational or international governmental organization.
  ii. Provides for proof of the authority of such specified notarial officers outside of Michigan to perform notarial acts, and the prima facie presumption that a signature purported to be that of a notarial officer on the certificate of notarial acts is, in fact, that of the named officer and that the officer holds the designated notarial office.

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MICHIGAN - SB 997
Eff. 03.12.2019
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Summary: Makes a conforming amendment to Michigan’s Revised Judicature Act of 1961, to point statutory citations to the renamed and amended Michigan Law on Notarial Acts. If by law the affidavit of a person residing in another state of the United States or in a foreign country is required or may be received in an action or judicial proceeding in Michigan, the affidavit must be authenticated under Section 25a of the Michigan Law on Notarial Acts, 2003 PA 238. MCL 55.285a, or be an unsworn declaration executed under Chapter 21A, in order to be entitled to be read.
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MICHIGAN - SB 998
Eff. 03.12.2019
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This bill repeals Michigan’s Uniform Recognition of Acknowledgments Act, 1969 PA 57, MCL 565.261 to 565.270. The purpose of this Act is sustained by enactment of SB 996 and its extensive provisions on recognition of notarial acts across jurisdictions.
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MICHIGAN - SB 999
Eff. 03.12.2019
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Summary: Amends Michigan’s Uniform Real Property Recording Act (“the Act”).

1. Establishes that a county register of deeds shall only accept electronic documents for recording from a person with which the county register of deeds has entered into an agreement establishing a verified transactional relationship.
2. Expands the charge of the Act’s Electronic Recording Commission, by requiring the Commission to adopt standards that address the acceptance and use of electronic notarization of documents submitted to a county register of deeds for recording.
3. Makes a technical edit to the Act’s reference to the Property Records Industry Association.
 
MINNESOTA - SF No. 893
Effective 01.01.2019
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Summary:  Enacts the Revised Uniform Law on Notarial Acts (RULONA), including a lengthy section implementing remote, online (electronic) notarization in the North Star State.

1. Key definitions include:
   a. “Notarial officer” - a notary public or other individual authorized to perform a notarial act.
   b. “Notary Public” - an individual commissioned to perform a notarial act.
   c. “Record” -- information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

   d. “Signature” - a tangible symbol or an electronic signature that evidences the signing of a record.
   e. “Electronic signature” - an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.
   f. “Sign” - to execute or adopt a tangible symbol; or to attach to or logically associate with the record an electronic symbol, sound, or process; and to do so with present intent to authenticate or adopt a record.
   g. “Notarial act” - an act, whether performed relative to a tangible (i.e., paper) or electronic record, that a Minnesota notarial officer is authorized to perform. The term includes taking an acknowledgment; administering an oath or affirmation; taking a verification on oath or affirmation; witnessing or attesting a signature; certifying or attesting a copy; and noting a protest of a negotiable instrument.
   h. “Official stamp” - a physical image affixed to a tangible record or an electronic image attached to or logically associated with an electronic record.
   i. “Person” means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
   j. “Stamping device” - a physical device capable of affixing an official stamp upon a tangible record; or an electronic devic
e or process capable of attaching to or logically associating an official stamp with an electronic record.
 
Minnesota’s RULONA also defines terms concerning the performance of remote online notarial acts; see this summary’s section on Remote Online Notarization.

2. Minnesota’s RULONA explicitly provides for interstate recognition of notarial acts.
a. Notarial acts performed by authorized individuals (including Notaries Public) in other states, under federal or tribal authority, or in a foreign jurisdiction are recognized in Minnesota as having the same effect as if performed by a notarial officer of Minnesota. 
 
3. RULONA authorizes performance of certain notarial acts for Minnesota notarial officers.
a. Authorized acts include taking acknowledgments; administering oaths and affirmations; taking verifications on oath or affirmation; witnessing or attesting a signature; certifying or attesting a copy; and noting a protest of a negotiable instrument.


4. The definitions and requirements for certain authorized notarial acts are:
a. Personal appearance required:  If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer. (See further discussion of personal appearance in this summary’s section on Remote Online Notarization.)
b. “Acknowledgment” means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.  When taking an acknowledgment, the notarial officer shall determine, from personal knowledge or satisfactory evidence of the identity of the individual (as set forth in Minnesota Statutes §358.57), that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the individual’s signature. 
c. "In a representative capacity" means acting as (1) an authorized officer, agent, partner, trustee, or other representative for a person other than an individual; (2) a public officer, personal representative, guardian, or other representative, in the capacity stated in a record; (3) an agent or attorney-in-fact for a principal; or (4) an authorized representative of another in any other capacity.
d. “Verification on oath or affirmation” means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true. When taking a verification of a statement on oath or affirmation, the notarial officer shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and making the verification has the identity claimed and that the signature on the statement verified is the individual’s signature.
e. When witnessing or attesting a signature, a notarial officer shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the officer and signing the record has the identity claimed. 
f. When certifying or attesting a copy of a record or item that was copied, a notarial officer shall determine that the copy is a full, true, and accurate transcription or reproduction of the record or item.
g. When making or noting a protest of a negotiable instrument, a notarial officer shall determine the matters set forth in Minnesota Statutes §336.3-505(b).
h. Minnesota’s RULONA also authorizes a Notary to certify that a paper copy of an electronic document that was originally in electronic form is a true and correct copy of the original electronic document.
i. A Notary who certifies that a paper copy of an electronic document that was originally in electronic form is a true and correct copy 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 the certification required for the notarial act.
An office of the county recorder or office of registrar of titles shall record a paper copy of a document that was originally in electronic form (and that is otherwise entitled to be recorded under Minnesota law), if a Minnesota Notary Public has certified the paper copy to be a true and correct copy of the electronic original. The Notary’s certification is evidenced by a certificate attached to or made a part of the document, and that must:
    i. be signed and dated by the notary public, and signed in the same manner as required by section 359.061.
    ii. identify the jurisdiction in which the certification is performed;
    iii. contain the title of the notary public;
    iv. indicate the date of expiration, if any, of the notary public's commission; and
     v. include an official seal or stamp of the notary public affixed to the certificate.
Minnesota’s RULONA provides a form of notarial certificate that is sufficient for a Notary’s certification of a paper copy of an electronic document. It also specifies circumstances under which this particular notarial act cannot be performed.

 
5. Methods of identifying individuals for whom a notarial act is performed are:
 a. Personal knowledge – a notarial officer has personal knowledge of the identity of an individual personally appearing for a notarial act, if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed
 b. Satisfactory evidence of identity - a notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by means of:
    i. a passport, driver's license, or government-issued nondriver identification card that is currently valid; or
    ii. another form of government identification issued to an individual that is currently valid, contains the individual's signature or a photograph of the individual and is satisfactory to the officer; or
    iii. a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, driver's license or government-issued nondriver identification card that is current or expired not more than three years before performance of the notarial act.
c. A notarial officer may require an individual to provide additional information or identification credentials necessary to assure him- or herself of the identity of the individual.

For further discussion of identification methods, see this summary’s section on Remote Online Notarization.

6. Minnesota’s RULONA requires that a notarial act be evidenced by a certificate.
a. A notarial certificate must:
   i. be executed contemporaneously with the performance of the notarial act;
   ii. be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the commissioning officer or agency;
   iii. identify the jurisdiction in which the notarial act is performed;
   iv. contain the title of office of the notarial officer; and
   v. if the officer is a notary public, indicate the date of expiration, if any, of the officer's commission.
b. If a notarial act is performed by a Minnesota Notary Public, he or she must affix an official stamp to the notarial certificate of a tangible record. A Minnesota Notary Public has the option of attaching an official stamp to, or logically associating it with, the notarial certificate of an electronic record, only if the electronic record’s notarial certificate has been signed (in the same manner on file with the Secretary of State) and dated by the Notary, contains the Notary’s title of office, and identifies the jurisdiction in which the notarial act is performed.
c. “Short form” certificate formats that are sufficient to meet the requirements of Minnesota law are provided in the RULONA. The law also discusses the sufficiency of other certificate forms.
d. A notarial officer is prohibited from affixing his or her signature to, or logically associating it with, a notarial certificate until the notarial act has been performed.
e. By signing a notarial certificate, a notarial officer certifies that he or she has complied with certain requirements of Minnesota law and made the determinations specified by law.

7. A Minnesota notarial officer may refuse to perform a notarial act.
a. Specific grounds for refusing to perform a notarial act are:
   i. the notarial officer is not satisfied that the individual executing the record is competent or has the capacity to execute the record; or
   ii. The notarial officer is not satisfied that the individual's signature is knowingly and voluntarily made.
b. A Minnesota notarial officer may refuse to perform a notarial act unless refusal is prohibited by any law other than Minnesota Statutes §§358.51 to 358.76.

 
8. The official stamp of a Minnesota Notary Public must:
a. satisfy the (unchanged) requirements of Minnesota Statutes § 359.03 (specifying the stamp’s appearance, dimensions and other matters);
b. be capable of being copied together with the paper record to which it is affixed or attached, or [the electronic record] with which it is logically associated.
A Notary Public is responsible for the security of his or her stamping device, and may not allow another individual to use the device to perform a notarial act.
 
9. A Minnesota Notary Public wishing to notarize electronically may select one or more tamper-evident technologies to perform notarial acts on electronic records.  “Tamper-evident” means that any changes to an electronic record must display evidence of the change.
a. Before performing his or her initial (first) electronic notarization, a Notary Public must register his or her capability to notarize electronically with the Office of the Secretary of State. A Notary Public must re-register his or her electronic notarization capability after obtaining a renewal commission. (See Minnesota Statutes § 359.01, Subdivision 5.)
b. A Minnesota Notary Public cannot be required to perform an electronic notarization using a technology that the Notary has not selected.

10. With adoption of the RULONA, Minnesota also enacted remote, online notarization in the North Star State. 
Specifically, Minnesota Statutes § 359.04, setting forth the powers of a Notary Public, is amended (effective January 1, 2019) to include the power to perform online remote notarial acts in compliance with enacting law (and subject to registration and other requirements).  Where Minnesota’s Remote Online Notary Public statutory provisions conflict with any other Minnesota law, the Remote Online Notary Public provisions prevail.  These provisions, Minnesota Statutes § 358.645, are the “Remote Online Notarization Act.”
a. Minnesota’s Remote Online Notarization Act defines the following terms related to remote online notarization.
    i. “Appear,” “personally appear” or “in the presence of” -  being in the same physical location as another person and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or interacting with another individual by means of communication technology (as defined in RULONA).

    ii. “Communication technology” - an electronic device or process that allows a notary public physically located in this state and a remotely located individual to communicate with each other simultaneously by sight and sound and that, as necessary, makes reasonable accommodation for individuals with vision, hearing, or speech impairments.
    iii. “Credential analysis” - an automated software- or hardware-based process or service through which a third person affirms the validity of a government-issued identification credential through review of public or proprietary data sources.
    iv. “Electronic journal” - a secure electronic record of notarial acts that contains the items listed in and required by subdivision 4, paragraph (a), and performed by the remote online notary public.
    v. “Electronic record” - information that is created, generated, sent, communicated, received, or stored by electronic means.
    vi. "Electronic seal"  - information within a notarized electronic record that confirms the remote online notary public's name, jurisdiction, identifying number, and commission expiration date and generally corresponds to information in notary seals used on paper documents.

    vii. “Identity proofing” - a process or service through which a third person affirms the identity of an individual through review of personal information from public or proprietary data sources, and that may include dynamic knowledge-based authentication or biometric verification.
    viii. “Outside the United States”  - outside the geographic boundaries of a state or commonwealth of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.
    ix. “Principal” - an individual (1) whose electronic signature is notarized in a remote online notarization; or (2) making an oath or affirmation or an acknowledgment other than in the capacity of a witness for the remote online notarization.
    x. “Remote online notarial certificate” - the form of an acknowledgment, jurat, verification on oath or affirmation, or verification of witness or attestation that is completed by a remote online notary public and: (1) contains the online notary public's electronic signature, electronic seal, title,
    xi. commission number, and commission expiration date; (2) contains other required information concerning the date and place of the remote online notarization; (3) otherwise conforms to the requirements for an acknowledgment, jurat, verification on oath or affirmation, or verification of witness or attestation under the laws of this state; and (4) indicates that the person making the acknowledgment, oath, or affirmation appeared remotely online.
    xii. “Remote online notarization” or "remote online notarial act"  - a notarial act performed by means of communication technology  (as defined in RULONA).
    xiii. “Remote Online Notary Public” - a Notary Public who has registered with the secretary of state to perform remote online notarizations.
    xiv. “Remote presentation” - transmission to the Remote Online Notary Public through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the remote online notary public to: (1) identify the individual seeking the remote online notary public's services; and (2) perform credential analysis.

      xv. “Remotely located individual” - an individual who is not in the physical presence of the notary.
b. A Minnesota Notary Public may apply for remote online notarization registration.
    i. Before a Notary Public performs a remote online notarization, the Notary must register with the Secretary of State (pursuant to Minnesota Statutes § 359.01) the capability to notarize electronically. The Notary must certify that he or she intends to use communication technology that conforms to the requirements of Minnesota law (see Minnesota Statutes, § 358.645).
    ii. The Secretary of State may reject a registration application if the applicant fails to comply with statutory requirements (Minnesota Statutes § 358.645, subdivision 2 (a)-(d)). The Minnesota Commissioner of Commerce may revoke a registration for failure to comply with Minnesota Statutes, § 358.645, subdivisions 2 to 6.

   iii. The term of registration to perform remote online notarial acts begins on the registration starting date set by the Secretary of State and continues as long as the Notary’s current commission to perform notarial acts remains valid, if not terminated.  
    iv. A Remote Online Notary Public whose registration terminates must destroy the coding, disk, certificate, card, software or password that enables electronic affixation of the Remote Online Notary’s official electronic signature or seal, and must certify compliance with the Secretary of State. A former Remote Online Notary Public is not required to destroy these items if his or her Remote Online Notary registration terminated for a reason other than revocation or denial of renewal, and the former Remote Online Notary Public is, within three months of registration termination, re-registered as a Remote Online Notary with the same electronic signature and seal.
    v. It is a misdemeanor for a person who, without authorization, knowingly obtains, conceals, damages or destroys the certificate, disk, coding, card, program, software or hardware enabling a Remote Online Notary Public to affix an official electronic signature or seal.
c. A Remote Online Notary Public is a Notary for purposes of Minnesota Statutes, Chapter 359; and is subject to, and must be appointed and commissioned under, that chapter. Remote Online Notaries may perform notarial acts pursuant to Chapters 358 and 359, in addition to performing remote online notarizations. They may also perform remote online notarizations authorized under Minnesota Statutes, § 358.645.
d. By meeting the requirements of Minnesota’s Remote Online Notarization Act, a remote online notarial act satisfies the requirement of any Minnesota law relating to a notarial act that requires a principal to appear or personally appear before a Notary or that the notarial act be performed in the presence of a Notary.
e. A Remote Online Notary Public may perform a remote online notarial act only while the Remote Online Notary is physically located in Minnesota.  A Remote Online Notary Public who is physically located in Minnesota may perform a remote online notarial act for a remotely located individual who is physically located in Minnesota; outside Minnesota but within the United States; or outside the United States subject to the following requirements: 

     i. If the remotely located individual is located outside of the United States, the remote online notarization may be performed if the Remote Online Notary has no actual knowledge that the remote online notarial act is prohibited in the jurisdiction where the individual is physically located and the person (individual) placing an electronic signature on the electronic document confirms to the Remote Online Notary that the requested remote online notarial act and the electronic document (a) are part of or pertain to a matter that is to be filed with or is currently before a court, governmental entity or other entity in the United States; (b) relate to property located in the United States; or (c) relate to a transaction substantially connected to the United States.
f. The validity of a remote online notarization performed by a Minnesota Remote Online Notary is governed by the laws of Minnesota.
g. A Remote Online Notary Public or the Remote Online Notary’s employer may charge no more than $25 for the performance of a remote online notarial act, if the act occurs before January 1, 2023.
h. When performing a remote online notarization, a Remote Online Notary Public must verify the identity of a person creating an electronic signature at the time that the signature is taken by using communication technology as defined by Section 358.645.  Identity may be verified by:

   i. the Remote Online Notary’s personal knowledge of the person creating the electronic signature; or
   ii. all of the following: 
        • remote presentation by the person creating the electronic signature of a currently valid government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person;
         • credential analysis of the credential described in (a); and
         • identity proofing of the person described in (a).
   i. A remote online notarial act must comply with the new law’s minimum standards for identity proofing, which must include knowledge-based authentication that has the same or greater characteristics prescribed in Minnesota’s Remote Online Notarization Act. The new law also addresses the characteristics of credential analysis.

j. The electronic notarial certificate for a remote online notarization must include a notation that the notarization is a remote online notarization and that the person appeared before the Remote Online Notary by means of communication technology, if that was the method of the person’s appearance before the Notary.
k. A Remote Online Notary Public must attach his or her electronic signature and seal to the notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document evident.
l. A Remote Online Notary Public must keep one or more secure electronic journals of remote online notarial acts.  For each remote online notarization performed, an electronic journal must contain: 
    i. the date and time of the notarization; 
    ii. the type of notarial act;
    iii. the type, the title or a description of the electronic document or proceeding; 
    iv. the printed name and address of each principal involved in the transaction or proceeding;
    v. evidence of identity of each principal in the form of a statement that the person is personally known to the remote online Notary, a notation of the type of identification document provided to the remote online Notary, or the printed name and address of each credible witness swearing to or affirming the person’s identity, and for each credible witness not personally known to the remote online Notary, a description of the type of identification documents provided to the remote online Notary; and
    vi. the fee, if any, charged for the notarization.

A Remote Online Notary’s electronic journal and electronic seal must be kept securely by the Notary and under his or her exclusive control, which may be done by password-controlled access.
m. A Remote Online Notary Public must create an audio and video copy of the performance of every remote online notarial act.
n. A Remote Online Notary Public must take reasonable steps to:
     i. ensure the integrity, security, and authenticity of remote online notarizations;
     ii. maintain a backup for the electronic journal and the recordings of remote online notarial acts; and 
     iii. protect records and backup records from unauthorized access or use.
o. The electronic journal and the recordings of remote online notarial acts must be maintained for at least 10 years after the date of the transaction or proceeding. A Remote Online Notary Public may, by written agreement, designate a repository of the recording and the electronic journal. Such repository may be:
    i. the employer of the Remote Online Notary if evidenced by a record signed by the Notary and the employer in which the employer agrees to meet the requirements of Section 358.645, subdivision 4, paragraphs (c) and (d); or
    ii. another repository meeting the requirements Section 358.645, subdivision 4, paragraphs (c) and (d).
p. A Remote Online Notary Public may, by agreement, use a software platform or service provider to facilitate provision of remote online notarizations and maintenance of and access to records, but may not allow another person to use the Remote Online Notary’s electronic journal or electronic seal to perform notarial acts or for any unauthorized purpose.
q. A Remote Online Notary Public must immediately notify an appropriate law enforcement agency and the Commissioner of Commerce of the theft or vandalism of the Notary’s electronic journal, electronic signature or electronic seal.  A Remote Online Notary Public must also immediately notify the Commissioner of Commerce of the loss or use by another person of the Notary ’s electronic journal or electronic seal.
r. A Remote Online Notary Public must take reasonable steps to provide that the communication technology used in a remote online notarization is secure from unauthorized interception.

11. Minnesota’s RULONA provides acts that Notaries Public are prohibited from committing.
a. A notarial officer may not perform a notarial act when the officer or the officer's spouse is a party to the record, or in which either of them has a direct beneficial interest. A notarial act performed in violation of these prohibitions is voidable.
b. A commission to perform notarial acts does not allow an individual to:
   i. assist persons in drafting legal records, give legal advice or otherwise practice law;
   ii. act as an immigration consultant or expert on immigration matters;
   iii. represent a person in a judicial or administrative proceeding relating to immigration to the U.S. or U.S. citizenship; or related matters, or
   iv. receive compensation for performing the activities in (a) through (c).
c. A Notary Public:
    i. May not engage in false or deceptive advertising.
    ii. May not use the term “notario” or “notario publico.”
    iii. May not withhold access to or possession of any original record provided by a person that requests performance of a notarial act, except as otherwise allowed by law.
    iv. May not advertise or represent that the Notary may assist persons in drafting legal records, give legal advice or otherwise practice law, unless the Notary is also an attorney licensed to practice law in Minnesota.
d. A Notary who is not an attorney and who in any manner advertises or represents that the Notary offers notarial services, whether orally or in a record, including broadcast or print media, and the Internet, must include in the advertisement or representation the following statement or an alternative statement authorized by the commissioning officer or agency:  “I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.” This statement must appear prominently and in each language used in the advertisement or representation. If the form of advertisement or representation is not broadcast and print media, or the Internet, and does not permit the inclusion of the statement due to size, the statement must be prominently displayed or provided at the place of performance of the notarial act before the act is performed.

12. Minnesota’s RULONA provides grounds for denying, refusing to renew, revoking, suspending, or conditioning the commission of a Notary Public. An applicant or a Notary is entitled to timely notice and hearing in accordance with Minnesota Statutes Chapter 14 if the Commissioner of Commerce denies, refuses to renew, revokes, suspends, imposes conditions on or otherwise sanctions a commission of an applicant or Notary.
a. The Commissioner of Commerce is authorized to proceed in an action against a Notary Public for any act or omission demonstrating that an individual lacks the honesty, integrity, competence or reliability to act as a Notary Public, including:
    i. failure to comply with Sections 358.51-358.76;
    ii. a fraudulent, dishonest or deceitful misstatement or omission in the application for a commission as a Notary;
    iii. a conviction of the applicant or Notary of any felony or a crime involving fraud, dishonesty or deceit;
    iv. a finding against, or admission of liability by, the applicant or Notary in any legal proceeding or disciplinary action based on the applicant's or Notary's fraud, dishonesty or deceit;
    v. failure by the Notary to discharge any duty required of a Notary, whether by Sections 358.51 to 358.76 or any federal or state law or regulation;
    vi. use of false or misleading advertising or representation by the Notary representing that the Notary has a duty, right or privilege that the Notary does not have;
    vii. denial, refusal to renew, revocation, suspension or conditioning of a Notary commission in another state; or

    viii. suspension or revocation of a license for the conduct of a profession, occupation, trade or business of a Notary who is performing notarial acts in connection with the profession, occupation, trade, or business.
b. An administrative action taken against the commission of a Notary does not prevent an aggrieved person from seeking and obtaining other remedies provided by law, whether criminal or civil.
c. Only the Governor of Minnesota, the district court or the Commissioner of Commerce may remove a Notary Public from office.
d. Upon removal from office by the Commissioner of Commerce, a Notary must deliver the Notary’s official stamp to the Commissioner.

13. Additional provisions of SF No. 893 include:
a. An individual who is physically unable to sign a record may direct another individual who is not the notarial officer to be present and to sign the physically-unable individual’s name on the record, or the physically-unable individual may use a rubber stamp facsimile of his or her actual signature, mark or signature/mark made by another person. (See Minnesota Statutes, § 645.44, subdivision 14.)
b. The Secretary of State must maintain an electronic database of notaries public:
    i. through which a person may verify the authority of a Notary to perform notarial acts, including remote online notarial acts; and
    ii. which indicates whether a Notary has applied to the commissioning officer or agency to perform notarial acts on electronic records or to perform remote online notarial acts.
c. A Notary commission in effect on the effective date of Minnesota’s RULONA (January 1, 2019) continues until its date of expiration. A Notary Public who applies to renew a commission on or after the effective date of January 1, 2019 is subject to and must comply with the provisions of Minnesota’s RULONA.  In performing notarial acts after January 1, 2019, a Minnesota Notary Public must perform notarial acts in compliance with RULONA.

d. Minnesota Statutes, § 358.50, is amended to provide that the application form for a Notary Public commission must also include an oath of office statement.
e. Minnesota’s RULONA clarifies the treatment and disposition of data collected by a Remote Online Notary.
f. The Secretary of State must maintain a list of entities that regularly offer a course of study for a Minnesota remote online Notary that covers the laws, rules, procedures and ethics relevant to notarial acts performed under Section 358.645.
g. Minnesota Statutes §§ 358.41, 358.42, 358.43, 358.44, 358.45, 358.46, 358.47, 358.48, 358.49 and 359.12 are repealed effective January 1, 2019.
 

MONTANA - HB 370
Signed 04.03.2019; effective 10.01.2019
View this bill

Substantially amends Montana’s 2015 enactment of the Revised Uniform Law on Notarial Acts (“the Act”), and in so doing clarifies the Treasure State’s Notary Public statutes and expands its scope. Retools statutory provisions on remote notarization. Creates several new notarial acts that may be performed by a Montana Notary Public.  Becomes the first state to allow identity proofing as a means to satisfactorily identify a principal in the physical presence of a Notary Public.

Definitions, Amended (Amendments indicated by strikethrough and underline formatting.)
1. “Acknowledgment” – a declaration by an individual appearing before a notarial officer that the individual has willingly signed a record for the purposes stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed the record as the act of the individual or entity identified in the record.
2. "Notarial act" – an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of this state. The term includes but is not limited to taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, certifying or attesting a transcript of an affidavit or deposition, and noting a protest of a negotiable instrument.
3. "Notary public" or "notary" – an individual commissioned to perform a notarial act by the secretary of state.
4. "Stamping device" – (a) a physical device capable of affixing to or embossing on a tangible record an official stamp; or (b) an electronic device or process capable of attaching to or logically associating an official stamp with an electronic record. The notarial official stamp, whether applied to the record physically or electronically, is considered to be a seal for the purposes of admitting a document record in court.
5. "Verification on oath or affirmation" or "jurat" – a declaration, made by an individual a principal on oath or affirmation before a notarial officer, that a statement in a record is true and that the record has been executed knowingly and willingly before the notarial officer for the purposes intended."

Definitions, New
1. "Appearing before" – (a) being in the same physical location as another person and close enough to see, hear, communicate with, and exchange identification credentials with that individual; or (b) interacting with another individual by means of communication technology in compliance with the Act.
2. "Certification of fact" – a notarial act in which a notary reviews public or vital records or other legally accessible data to ascertain or confirm any of the following facts:
  (a) date of birth, death, marriage, or divorce, or that an individual is alive;
  (b) name of parent, marital partner, offspring, or sibling;
  (c) that an event has occurred; or
  (d) any matter authorized by law or rule of this state for certification by a notary public.
3. "Communication technology" – a real-time, two-way audio-visual electronic device or process that:
  (a) allows a notarial officer located in this state and a remotely located individual to communicate with each other simultaneously by sight and sound;

  (b) facilitates communication with a remotely located individual with a vision, hearing, or speech impairment when necessary under and consistent with applicable law; and
  (c) complies with this part and implementing rules.
4. "Credential analysis" – a process or service operating according to criteria approved by the secretary of state through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources.
5. "Dynamic knowledge-based authentication assessment" – an identity assessment that is based on a set of questions formulated from public or private data sources that does not contain a question for which the principal provided a prior answer to the entity doing the assessment.
6. "Electronic notarization system" – a set of applications, programs, hardware, software, or technologies designed to enable a notary public to perform electronic notarizations that renders every electronic notarial act tamper-evident through the use of a security procedure and that meets the requirements of this part and implementing rules.
7. "Identification credential" – a government-issued record evidencing an individual's identity.
8. "Identity proofing" – a process or service by which a third person provides a notarial officer with a means to verify the identity of a principal by:
  (a) a review of personal information from public or proprietary data sources; or
  (b) biometric data including but not limited to facial recognition, voice analysis, or fingerprint analysis.
9. "Oath or affirmation" – a solemn verbal promise by which a person knowingly and willingly attests to the truthfulness of a statement and that is administered by a notarial officer.
10. "Official record" –   (a) A record or copy of a record attested by the officer or the officer's deputy with legal custody of the record that is accompanied by a certificate that the officer has custody of the record.
  (b) The certificate must have been made under seal by:
    (i) a clerk of a court of record in the district or political subdivision where the record is kept; or
    (ii) a public officer with a seal of office and with official duties in the district or political subdivision where the record is kept.
11. "Outside the United States" – a location outside of the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory, insular possession, or other location subject to the jurisdiction of the United States.
12. "Principal" -- (a) an individual whose signature is notarized; or (b) an individual taking an oath or affirmation from the notary public but not in the capacity of a credible or other witness for the notarial act.
13. "Public key certificate" – an electronic credential that is used to identify an individual who signed an electronic record with the credential and is issued and managed by a third-party provider utilizing public key infrastructure technology.
14. "Public key infrastructure technology" – a method of enabling a user of an unsecured public network, including the internet, to securely and privately exchange data and money through a public and private cryptographic key pair that is obtained and shared through a trusted certificate authority that provides for:
  (a) a digital certificate that is able to identify an individual or organization; and
  (b) a directory service that is able to store and, if necessary, revoke a digital certificate.
15. "Remote notarization" – a notarial act performed by means of communication technology on a tangible record that meets the standards adopted under the Act.
16. "Remote online notarization" – a notarial act or notarization performed by means of communication technology and an electronic notarization system on an electronic record that meets the standards adopted under the Act.
17. "Remote presentation" – transmission to the notarial officer through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the notarial officer to:
  (a) identify the individual seeking the notarial officer's services; and

  (b) visually review the identity credential and its data; and
  (c) perform credential analysis.
18. "Security procedure" – a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.
19. "Signature witnessing" – the notarial act in which a notarial officer witnesses a principal execute a record knowingly and willingly for the purposes intended while appearing before the notarial officer.
20. "Sole control" -- at all times being in the direct physical custody of the notarial officer or safeguarded by the notarial officer with a password or other secure means of authentication or access.
21. "Tamper-evident" -- any change to a record must provide evidence of the change.

(Current definitions unchanged by HB 370:  “electronic,” “electronic signature,” “in a representative capacity,” “notarial officer,” “official stamp,” “person,” “record,” “sign,” “signature,” “state.”)

Notary Public’s Official Signature and Stamp  (New/amended provisions are underlined.)
1. Requires the official signature of a Notary Public to be:
  (a) filed with the Secretary of State on a form prescribed by the Secretary;
  (b) be reasonably similar to the official signature on file with the Secretary;
  (c) be in blue or black ink if executed on a tangible record;
  (d) be an electronic image of the official signature submitted to the Secretary, if executed on an electronic record;
  (e) affixed to all tangible and electronic records the Notary Public notarizes.
2. Requires a Notary Public’s official stamp, if an electronic image, to be the same format, color, content and approximate size as the tangible official stamp and capable of being copied together with the record to which the official stamp is affixed or attached or with which the official stamp is logically associated.
3. Clarifies that a Notary Public is the sole owner of the Notary’s stamping device, and may not allow another individual to use the stamping device to perform a notarial act or for any other reason.
4. Requires a Notary Public or the Notary’s personal representative or guardian to promptly notify the Secretary of State’s office on discovering that the Notary Public’s stamping device is lost, stolen or otherwise inaccessible to the Notary Public.

Requirements, Authorized Notarial Acts  (New/amended provisions are underlined.)
1. Expands the requirements for these notarial acts-- taking an acknowledgment of a record; a verification on oath or affirmation of a statement; and witnessing or attesting to a signature—by adding that the notarial officer shall determine that the signature of the individual (principal)  was made knowingly and willingly for the purposes intended.
2. Establishes that a notarial officer who takes an acknowledgment or witnesses a signature of an individual who signs a record in a representative capacity shall determine:
  (a) from personal knowledge or satisfactory evidence of the individual’s identity that the individual appearing before the notarial officer has the identity claimed; and
  (b) from the record, personal knowledge, or presentment of an official record, that the individual holds the title or capacity claimed and has knowingly and willingly signed the record in that capacity for the purposes intended.
3. Authorizes a notarial officer to refuse to perform a notarial act if the notarial officer is not satisfied that the official record or the presented record evidences the individual’s capacity to act as the principal’s representative on the record presented for notarization.
4. Clarifies that a notarial officer who certifies or attests a copy of a record or item that was copied shall determine that the copy is a full, true and accurate transcription or reproduction of the original or official record or item.
5. Authorizes a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record.  Requires a county clerk to accept for recording a tangible copy of an electronic record containing an original notarial certificate as satisfying any requirement that a record be an original.
6. Authorizes a notarial officer to perform a certification of fact, a notarial act in which the notarial officer reviews public or vital records, or other legally accessible data, to ascertain or confirm any of the following facts:
  (a) date of birth, death, marriage, or divorce, or that an individual is alive;
  (b) name of parent, marital partner, offspring, or sibling,
  (c) that an event has occurred; or
  (d) any matter authorized by Montana law or rule for certification by a Notary.
7. Authorizes a notarial officer who certifies a fact to review a public or private record to ascertain or verify that specific data is contained or shown on the record or memorialized in a publication that the Notary believes to be reliable.
8. Requires a notarial officer who certifies that an individual is alive to verify from personal knowledge or satisfactory evidence that the individual appearing before the notarial officer is alive at the time of certification.
9. Requires a notarial officer who certifies a photograph to verify from personal knowledge or satisfactory evidence that the photograph is an accurate representation of the individual or item represented.
10. Establishes that a notarial officer who administers an oath or affirmation shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the person appearing before the notarial officer and taking the oath or affirmation has the identity claimed and is knowingly and willingly making the state with the intent to be bound by the statement.
11. Authorizes a Montana Notary Public to solemnize marriages in Montana, pursuant to §40-1-301 MCA (Montana Family Law code) and subject to rules adopted by the Secretary of State.

Identification Methods  (New/amended provisions are underlined.)
1. Amends current law to clarify that satisfactory evidence of identification includes certain identification credentials (not “cards”).
2. Amends current law to reflect that satisfactory evidence of identification includes the oath or affirmation of a credible witness (not a “verification on” oath or affirmation), thus clarifying that the credible witness’ oath or affirmation does not require a written/signed statement.
3. Establishes that a credible witness may be physically present before a notarial officer or may appear by means of communication technology. Provides that a credible witness appearing by means of communication technology may be identified by personal knowledge or by technologies, processes or services approved by the Secretary of State for use in identifying individuals appearing by means of communication technology.
4. Establishes that, besides reliance on personal knowledge or specified identification credentials, a notarial officer may satisfactorily identify a physically-present individual (principals or credible witnesses) by use of one or more approved identification technologies described in the Act for use in identifying individuals appearing by means of communication technology.

Notarial Certificates  (New/amended provisions are underlined.)
1. Expands the requirements for certificates of notarial acts:
2. Clarifies that a notarial certificate must be completed by a notarial officer (not just “signed and dated”).
3. Creates the additional requirements that a notarial officer’s notarial certificate must specify the notarial act performed; identify the venue (where the Montana notarial officer is physically located at the time of notarization); identify the name of the principal, the type of record and issuing entity that is copied, or the information the notarial officer has certified (a “certification of fact” notarial act); contain the impression or electronic image of the Notary Public’s official stamp or the notarial officer’s seal; and if for a remote notarization or remote online notarization, additionally indicate that the notarial act was performed using communication technology and include any other information required by rule.
4. Requires not only Notaries Public but also clerks of court, deputy clerks of court, clerk/recorders, deputy clerk/recorders, the state registrar or the authorized agent of the state registrar to sign a notarial certificate in the same manner as on file with the Secretary of State.
5. Clarifies that the certificate for a notarial act on a tangible record must be part of or securely affixed to the record; and that the certificate for a notarial act on an electronic record must be attached-to or logically associated with the record.
6. Clarifies that a Notary Public (not a notarial officer) may subsequently correct a notarial certificate he or she completed if the change or correction can be evidenced by the information contained in the Notary’s journal record of the transaction.
7. Clarifies that a Notary Public may not change or correct an impression or electronic image of an official stamp in a notarial certificate, but may affix a subsequent impression on a tangible record or attach or logically associate, with an electronic record, an electronic image of a missing, illegible or incorrect official stamp.
8. Establishes that any changes or corrections to a notarial certificate must be dated and initialed by the Notary Public and a corresponding notation of the changes must be made in the journal record. Only the notary public who performed the notarization may make or authorize a change or correction to a previously completed certificate.
9. Provides that if a Notary Public authorizes a third party to change or correct the information included or omitted on a previously completed certificate, the authorization must be granted in writing and a copy of the message authorizing the change and a copy of the changed certificate must be attached to the Notary Public's journal record for that transaction.
10. Amends the statutory notarial certificate short forms by adding the printed name of the notarial officer alongside the notarial officer’s title; both are positioned beneath the officer’s signature.
11. Amends and clarifies the notarial certificates for:
  (a) an acknowledgment in a representative capacity, by clarifying that it shall include the signing individual’s title or capacity (not “type of authority”);
  (b) a verification on oath or affirmation, by adding “(jurat)” in the certificate title;
  (c) certifying a copy of a tangible record, by specifying that the certificate concerns a tangible record and further clarifying that the record copied is an original record.
12. Creates seven new certificate short forms, for: 
  (a) a signature witnessing in a representative capacity;
  (b) certifying a (tangible copy) of an electronic record;
  (c) a remote notarization or remote online notarization on a tangible or electronic record for a principal located outside the United States;
  (d) a remote notarization or remote online notarization on a tangible or electronic record for a principal located in or outside of Montana but within the United States;
  (e) a certification of fact or event;
  (f) a certification of life; and
  (g) a certification of a photograph.

Journal Record Required, All Notarial Acts  (New/amended provisions are underlined.)
1. Amends current law’s provisions on Notary Public journals.
2. Requires a Notary Public to maintain one or more journals (tangible or electronic medium) in which the Notary chronicles all notarial acts he or she performs.
3. Revises current journal entry requirements, and creates new ones:
  (a) Makes uniform all references to the individual for whom a notarial act is performed, by referring to the individual as the principal.
  (b) Requires a journal entry to:
    (i) contain a description of the record, including the date of the record if indicated, and the type of notarial act;
    (ii) reference the storage location of the audio-video recording in lieu of the signature of the principal if the notarial act is performed using communication technology;
    (iii) contain a notation identifying the electronic notarization system or technology, or both, if the notarial act is performed using an electronic notarization system or communication technology, or both.
4. Requires a Notary Public to record in the journal the name and address of an individual who signs a record at the direction of a principal who is unable to sign, as well as the name and address of the principal unable to sign.
5. Prohibits a Notary Public from recording in the journal a social security number, passport number, driver's license number, birth date, or any other information prohibited by the Secretary of State.
6. Authorizes a Notary Public to include other information descriptive of the record, including the number of pages in a document, whether the document was written in a foreign language, or other information pertaining to the record that is not otherwise prohibited by law or rule.
7. Requires a Notary Public to keep sole control of the journal and all other notarial records and surrender or destroy them only as authorized by law or rule, by court order, or at the direction of the Secretary of State, unless the Notary is a former Notary opting to transmit the journal to a repository approved by the Secretary of State (as allowed to do under the Act).
8. Requires a Notary Public to retain a journal for 10 years after the performance of the last notarial act chronicled in it, unless the Notary is a former Notary opting to transmit the journal to a repository approved by the Secretary of State (as allowed to do by the Act).
9. Prohibits a Notary Public from allowing the Notary's journal to be used by any other Notary and may not surrender the journal to an employer upon termination of employment without approval of the Secretary of State.
10. Authorizes an employer to retain a copy of the journal of an employee who is a notary after the notary's employment ceases if the journal contains records of notarial acts performed within the scope of the notary's employment.
11. Provides that any person may inspect or obtain a copy of an entry in a Notary Public’s journal if:
  (a) the person specifies in a signed tangible or electronic request the month, year, type of record, and
  (b) name of the principal;
  (c) the Notary Public does not surrender possession or control of the journal;
  (d) the person is shown or given a copy of only the entry specified; and
  (e) the Notary is satisfied that a person requesting the inspection or copy does not have a criminal or
  (f) other illegal purpose for inspecting the entry or obtaining the copy.
12. Establishes that a journal may be examined and copied without restriction:
  (a) by a law enforcement officer in the course of an official investigation;
  (b) if subpoenaed by court order; or
  (c) at the direction of the Secretary of State.
13. Deletes language that allowed a current Notary Public to transmit a journal to a repository approved by the Secretary of State, but still allows a former Notary Public to do so.
14. Establishes that upon revocation of a Notary Public’s commission, the Notary shall transmit the Notary’s journal and audio-visual recordings to a repository approved by the Secretary of State.

Prohibited Acts  (New/amended provisions are underlined.)
1. Prohibits a Notary Public from affixing the Notary’s official signature or stamp to any record that does not contain the Notary’s completed notarial certificate, unless otherwise directed by statute or rule.

Refusal to Perform a Notarial Act  (New/amended provisions are underlined.)
1. Amends current law to require, not allow, a notarial officer to refuse to perform a notarial act under specified circumstances.
2. Requires a Notary Public to refuse a request that would require the Notary to:
  (a) use an electronic notarization system or a communication technology that the notary does not know how to operate; or
  (b) use an electronic notarization system or communication technology that does not meet the requirements of the Act or standards adopted by rule.

Fees a Notary May Charge  (New/amended provisions are underlined.)
1. Establishes that a Notary Public may charge the statutorily allowed maximum fee of $10 for a certification of fact; or for another notarial act authorized by law unless charging a fee for the act is expressly prohibited by that law.
2. Clarifies that a Notary Public may charge the statutorily allowed maximum fee for executing a verification on oath or affirmation (jurat).
3. Authorizes a Notary Public to charge an additional fee, as provided by rule, to perform a notarial act using an electronic notarization system or communications technology, subject to statutory requirements that the Notary explain the additional fee as specified in the Act, and contingent upon the person’s agreement in advance on the amount of the additional fee.
4. Clarifies that a travel fee must be equal to or less than the standard mileage rates allowed by the Internal Revenue Service.
5. Authorizes a Notary Public to also charge a fee to recover the actual cost of providing a copy of a journal entry or audio-visual recording of a notarial act performed using communication technology.

Electronic Notarization, Remote Notarization, Remote Online Notarization – Notification, Requirements  (New/amended provisions are underlined.)
1. Clarifies that a notarial officer (formerly only a Notary Public) may select one or more electronic notarization systems to perform notarial acts with respect to electronic records; makes related conforming amendments.
2. Requires an electronic notarization system provider to take reasonable steps to ensure that a Notary Public opting to use the provider’s system has the knowledge to use it to perform electronic notarial acts in compliance with the Act.
3. Clarifies that prior to a Notary’s performance of his or her initial notarial act using an electronic notarization system or a communication technology, the Notary shall:
   (a) notify the Secretary of State that the Notary will be performing notarial acts using the electronic notarization system or communication technology and shall identify the electronic notarization or communication technology, or both, that the Notary intends to use;
  (b) complete a course of instruction approved by the Secretary of State and pass an examination based on the course.
4. Requires the course of instruction to cover notarial rules, procedures and ethical obligations pertaining to remote or electronic notarization under the Act or pursuant to any other law or official guideline of Montana. Allows the course to be completed in conjunction with any course required by the Secretary of State for a Notary Public commission. Requires a Notary to submit proof to the Secretary of State of the Notary’s successful completion of the course and examination.

Remote Notarization, Remote Online Notarization - Requirements  (New/amended provisions are underlined.)
1. Replaces references to “real-time, two-way video and audio communication” with “communication technology.”
2. Authorizes a notarial officer to perform a remote notarization or remote online notarization for a principal who is located in Montana; outside of Montana but within the United States; or outside the United States if the act is not known by the notarial officer to be prohibited in the jurisdiction in which the principal is physically located at the time of the act, and the record is part of or pertains to:
  (a) a matter to be filed with or is before a public official or court, governmental entity, or other entity located in the territorial jurisdiction of the United States;
  (b) property located in the territorial jurisdiction of the United States; or
  (c) a transaction substantially connected with the United States.
3. Specifies that a notarial officer may perform a remote notarization or remote online notarization only if the notarial officer:
  (a) is physically located in Montana at the time the notarial act is performed;
  (b) identifies the principal through personal knowledge or satisfactory evidence;
  (c) executes the notarial act in a single recorded session that complies with the Act;
  (d) is satisfied that any record that is signed, acknowledged, or otherwise presented for notarization by the principal is the same record remotely notarized by the notarial officer;
  (e) is satisfied that the quality of the communication technology is sufficient to make the determinations required for the notarial act under the Act and any other applicable law of Montana;
  (f) identifies the venue as described in [Section 19 of HB 370; venue must be where the notarial officer is physically located at the time of performing the notarial act]; and
  (g) is capable of meeting the requirements of 1-5-618 (regarding the requirement to create a journal record for every notarial act performed).
4. Requires a notarial officer performing a remote notarization or remote online notarization to take reasonable steps to ensure that:
  (a) the notarial officer, the principal, and any required witness are accessing the communication
  (b) technology or the electronic notarization system, or both, through an authentication procedure that is reasonably secure from unauthorized access;
  (c) the principal and any required witness are viewing the same record; and
  (d) all signatures, changes, and attachments to the record are made in real-time.
5. Requires a Notary Public to refuse a request that would require the Notary to:
  (a) use an electronic notarization system or a communication technology that the notary does not know how to operate; or
  (b) use an electronic notarization system or communication technology that does not meet the requirements of the Act or standards adopted by rule.
6. Establishes that a notarial act performed by means of communication technology is considered to have been performed in Montana and is governed by Montana law regardless of the physical location of the principal at the time of the notarization.

Audio-video Recordings and Notarial Records of Remote Notarizations and Remote Online Notarizations  (New/amended provisions are underlined.)
1. Requires a notarial officer who performs a notarial act using communication technology to make an audio-visual recording of the entire communication (session).
2. Allows a current or former notarial officer to transmit the audio-visual recording to a repository approved by the Secretary of State.
3. Requires a notarial officer to keep sole possession of an audio-visual recording, and to retain an audio-visual recording for ten years from the date of the recording, unless opting to transmit the recording to a repository approved by the Secretary of State.
4. Sets forth the requirements and conditions for a notarial officer to allow a person to inspect or obtain a copy of an audio-visual recording, including that the notarial officer be satisfied that the requester has reasonable purpose directly relating to the notarization.
5. Provides that a recording may be examined and copied without restriction by a law enforcement officer in the course of an official investigation, subpoenaed by court order, or surrendered at the direction of the Secretary of State.
6. Establishes that upon revocation of a Notary Public’s commission, the Notary shall transmit the Notary’s journal and audio-visual recordings to a repository approved by the Secretary of State.
7. Clarifies that on the death or adjudication of incompetency of a current or former Notary Public, the Notary’s personal representative or guardian or any other person knowingly in possession of the Notary’s journal or audio-visual recordings shall transmit all journals and recordings to a repository approved by the Secretary of State.

Notary Public Qualifications, Commission, Renewals  (New/amended provisions are underlined.)
1. Extends eligibility to apply for a Montana Notary Public commission to spouses or legal dependents of military personnel assigned to active duty in Montana.
2. Expands qualifications that non-resident commission applicants must meet. In addition to meeting basic commission qualifications, a non-resident applicant must:
  (a) maintain a place of business in Montana that is registered under Montana’s corporations code;
  (b) meet any applicable business licensing requirements of local government where the business is located; or
  (c) hold a current professional license, issued by an appropriate Montana authority, to practice such profession in Montana.
3. Requires new or renewing commission applicants to pass an examination and meet new education requirements. On or after July 1, 2020, in addition to passing the examination:
  (a) for a new commission, the applicant must have completed within the previous 12 months at least 4 hours of notary public education approved by the Secretary of State or by the commission of continuing legal education;
  (b) to renew a commission, an applicant must have completed:
    (i) within the previous 12 months, at least 4 hours of notary public continuing education approved by the Secretary of State or by the commission of continuing legal education; or
    (ii) in each of the previous 3 years, at least 2 hours of notary public continuing education approved by the Secretary of State or by the commission of continuing legal education.
4. Requires the Secretary of State to collect fees commensurate with the cost incurred by the Secretary's office for providing notary public education and examination.
5. Authorizes the Secretary of State to require a Notary Public who has violated a provision of the Act or a notary administrative rule to complete a Notary Public education class approved by the Secretary.
6. Requires a notary convicted of a felony crime involving fraud, dishonesty, or deceit, or who pleads guilty or no content to such crime, to notify the Secretary of State within 30 days of the conviction or plea.

Other Measures  (New/amended provisions are underlined.)
1. Provides for the validity of notarial acts performed by Montana notarial officers.
2. Provides that the Secretary of State’s electronic database of Notaries Public shall describe any active or pending administrative or disciplinary action against a Notary Public.

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MONTANA - HB 624
Effective 07.01.2019
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Revises the statutory requirement that motor vehicle titles be notarized upon voluntary transfer.

1. Amends current law regarding voluntary transfer of motor vehicle titles by requiring the transferor’s signature on the certificate of title, or the form authorizing transfer of interest upon the electronic record of title, to be acknowledged by a Notary Public or other authorized official only when transfer occurs between individuals.
2. Authorizes Montana’s Department of Justice (“the Department”) to adopt rules regarding voluntary transfer of vehicles.
 

NEVADA - SB 223
Signed 05.16.2019; effective 10.01.2019
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Amends existing law related to persons in need of care or assistance, by revising various statutorily prescribed forms which must be notarized.

1. Revises existing law’s wording for these statutorily prescribed forms by deleting the requirement for the officiating Notary Public to declare under penalty of perjury that the principal signer of the form appeared to be of sound mind and under no duress, fraud or undue influence.  This language was incorporated into a “Certificate of Acknowledgment of Notary Public” that appeared on these statutorily prescribed forms:  Request to Nominate Guardian; Statutory Form Power of Attorney; Durable Power of Attorney for Health Care Decisions; Durable Power of Attorney for Health Care Decisions (Adult With Intellectual Disability); and End-of-Life Decisions Addendum Statement of Desires.

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NEVADA - AB 275
Signed 06.17.2019; effective 07.01.2019
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Conveys the Legislature’s finding and declaration that it is Nevada public policy that each resident of the state, regardless of his or her immigration or citizenship status, is eligible to receive the benefit of applying for a license, certificate or permit pursuant to 8 U.S.C. § 1621(d).  Prohibits a Nevada regulatory body from denying the application of a person for the issuance of a license based solely on his or her immigration or citizenship status.
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NEVADA - AB 280
Signed and effective 05.25.2019
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Amends provisions of Nevada Revised Statutes Chapter 240A, relating to document preparation services. (Some Nevada Notaries Public are also registered to provide these services.)

1. Defines “business entity.” Authorizes a business entity with one or more employees who are registered as a document preparation service and who perform document preparation services for the business entity to file a (single) cash or surety bond with the Secretary of State on behalf of all such employees. 
2. Establishes the required amount of the cash or surety bond based on the business’ number of covered employees. Clarifies that temporary or seasonal employees shall be included in the employee count for purposes of determining the cash or surety bond amount. Provides procedures concerning claims against a such a cash or surety bond.
3. Requires an applicant for registration as a document preparation service to be “a natural person” (i.e., an individual human being as opposed to an entity).
4. Requires the Secretary of State to deny an applicant’s registration as a document preparation service if the applicant has had his or her Notary Public appointment or registration suspended or revoked for cause, in Nevada or another state.

5. Reduces the amount of the individual surety bond required of persons registered to provide document preparation services, from $50,000 to $25,000.
6. Authorizes the Secretary of State to suspend the registration of a registrant who is also appointed as a Notary Public and whose Notary Public appointment has been suspended.
7. Allows an individual registered as a document preparation service, appointed as a Nevada Notary Public and whose Notary Public commission is in good standing with the Secretary to State, to use the term “Notary Public” in any advertisement or written description of the registrant or the services provided by the registrant.
8. Excludes enrolled agents authorized to practice before the Internal Revenue Service from the definition of document preparation service. Clarifies that the term includes a tax return preparer, including without limitation a tax return preparer holding a current Annual Filing Season Program Record of Completion issued by the Internal Revenue Service.
9. Allows the Secretary of State to suspend the document preparation service registration of any Notary Public who violates either the provisions of Nevada Revised Statutes Sec. 240.001 to 240.169, inclusive; or a regulation or order adopted or issued pursuant to those statutes. Requires the Secretary to notify a registrant in writing of a suspension. Provides circumstances for registration reinstatement.

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NEVADA - AB 65
Varied effective dates
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Revises and clarifies various provisions of Nevada law relating to Notary Public and Electronic Notary Public fees; authentications; registration as an Electronic Notary Public; and the form (notarial certificate) to request nomination of a guardian.

Effective upon the date the Secretary of State establishes a process for a person to simultaneously apply for appointment as an Electronic Notary Public and register as an Electronic Notary Public, OR on July 1, 2019, whichever is earlier:
1. Deletes the requirement that a person registering as an Electronic Notary Public must have been a Nevada notarial officer for no less than 4 years.
2. Authorizes the Secretary of State to establish a process for a person to simultaneously apply for appointment as a Notary Public and register as an Electronic Notary Public.  Under such a process, if established, registration as an Electronic Notary Public shall be deemed effective upon the person complying with (a) the requirements pertaining to taking an oath and filing a bond set forth in NRS 240.030 and 240.033 and with all other applicable notarial requirements set forth in Chapter 240, Nevada Revised Statutes; and (b) the statutory requirements to register as an Electronic Notary.

Effective 4-22-19 (date of Governor’s approval):
1. Amends the statutory form of notarial certificate for an acknowledgment by a person requesting to nominate a guardian, by deleting the phrase “I declare under penalty of perjury that the persons whose names are subscribed to this instrument appear to be of sound mind and under no duress, fraud or undue influence.”  Provides that such amendment does not affect the validity of acknowledgment certificates on a request to nominate a guardian made on or before passage and approval of AB 65.
2. Clarifies that a Nevada Notary Public may charge $2.50 for administering an oath or affirmation (deletes the qualifier “without a signature”).
3. Clarifies that a Nevada Electronic Notary Public may charge $25 for administering an oath or affirmation (deletes the qualifier “without a signature”).
4. Clarifies that an authentication issued by the Secretary of State is to verify that the signature of the notarial officer on a document intended for use in a foreign country (not those intended for use in the United States) is genuine and that the notarial officer holds the office indicated on the document.
5. Clarifies that certifications issued by the Secretary of State are solely for documents intended for use in a foreign country that is not a participant in the Hague Apostille Convention.
 

NEW HAMPSHIRE -HB 256
Signed 06.05.2019; effective 08.14.2019
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Establishes that a Notary Public commissioned in a state abutting New Hampshire, who is regularly employed or carries on a trade, business or practice in New Hampshire at the time of applying, may be commissioned as a New Hampshire Notary Public.

1. Requires that such non-resident Notary Public applicants submit to the Secretary of State:
  (a) The Notary Public application fee required under New Hampshire Revised Statutes Annotated 5:10.
  (b) An affidavit stating that the individual is a resident of an abutting state, is a registered Notary Public in that state, and is regularly employed or carries on a trade, business or practice in New Hampshire.
 

NEW YORK - SB 1505
Effective 04.12.2019
Email support@asnnotary.org to request bill text.

A budget bill that amends New York Executive Law regarding licensing of Notaries Public (Subdivision 1 of Section 130, Executive Law, Article 6).

  • Removes specific reasons that a person shall not be appointed as a New York Notary Public.
  • Establishes that no person shall be appointed as a Notary Public who has been convicted (in New York or any other state or territory) of a crime unless the secretary finds, in conformance with New York laws, that such convictions do not constitute a bar to employment.

 

NORTH DAKOTA - HB 1110
Effective 08.01.2019
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Clarifies various provisions of North Dakota’s Revised Uniform Law on Notarial Acts (RULONA) and implements remote online notarization in the Peace Garden State.  Clarifies various notary-related provisions in other sections of North Dakota Century Code (NDCC).

Amendments to Existing RULONA Provisions
1. Clarifies North Dakota law relating to documents filed with a county recorder, by clarifying that the notary seal on any document filed with a recorder may be in either a stamped or an imprinted form; or an official stamp as defined in NDCC §44-06.1-01 (RULONA). (An official stamp may be a physical image affixed to a tangible record or an electronic image attached to or logically associated with an electronic record.)
2. Requires a recorder to accept for recording a tangible copy of an electronic record containing a notarial certificate. Such tangible copy of an electronic record shall satisfy any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies the tangible copy is an accurate copy of the electronic record.
3. Adds RULONA’s definition of “person” to NDCC §44-06.1-01 (previously omitted).
4. Authorizes a notarial officer to certify that a tangible copy of an electronic record is an accurate copy of the electronic record, and establishes that RULONA’s prohibition against a Notary Public certifying a copy or certified copy of a recordable instrument does not apply in this instance.
5. Defines “person” to mean an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

New RULONA Provisions – Journal for Remote Online Notarial Acts
Establishes the requirement that a Notary Public maintain a journal chronicling all notarial acts the Notary Public performs using audiovisual communication for a remotely located individual
1. Requires the Notary Public to retain the journal for ten years after performance of the last notarial act chronicled in the journal.
2. Provides the following for a journal of notarial acts performed for remotely located individuals:
  • The journal may be created on a tangible medium or in an electronic format. 
  • If in a tangible medium, the journal must be a permanent, bound register with numbered pages.
  • If maintained in an electronic format, the journal must be in a permanent, tamper-evident electronic format complying with the rules of the Secretary of State.
  • The Notary Public may maintain only one journal at a time for chronicling all notarial acts regarding tangible records.
  • The Notary Public may maintain one or more journals to chronicle all notarial acts regarding electronic records. 
  • An entry in a journal must be made contemporaneously with performance of the notarial act and contain the following information:
    a. The date and time of the notarial act;
    b. A description of the record, if any, and type of notarial act;
    c. The full name and address of each individual for whom the notarial act is performed;
    d. If identity of the individual is based on personal knowledge, a statement to that effect;
    e. If identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance and expiration of the identification credential; and

    f. The fee, if any, charged by the notary public.
3. Requires a Notary Public to promptly notify the Secretary of State upon discovering that a journal is lost, or that the Notary’s access to the journal has been lost, for that the journal has been stolen.
4. Requires a Notary Public, upon resignation, revocation or suspension of his or her commission, to retain the journal for the statutorily-required period and inform the Secretary of State where the retained journal is located.
5. Allows a current or former Notary Public, instead of retaining (storing) a journal, to transmit the journal to a repository approved by the Secretary of State.
6. Requires that upon the death or adjudication of incompetency of a current or former Notary Public, the Notary Public’s personal representative or guardian shall retain the Notary’s journal pursuant to statutory requirements, or transmit the journal to a repository approved by the Secretary of State.

New RULONA Provisions – Remote Online Notarization
Creates and enacts section 44-06.1-13.1 of NDCC, authorizing a North Dakota Notary Public to perform notarial acts for remotely located individuals, as follows.

1. Provides key definitions relating to notarial acts performed for remotely located individuals:
  • "Communication technology" ― an electronic device or process that:
    a. Allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
    b. When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.
  • "Foreign state" ― a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.
  • "Identity proofing" ― a process or service by which a third person provides a notary public with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.
  • "Outside the United States" ― a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.
  • "Remotely located individual" ― an individual who is not in the physical presence of the notary public who performs a notarial act under NDCC §44-06.1-13.1(3).
2. Establishes that a remotely located individual may comply with RULONA’s personal appearance requirement by using communication technology to appear before a Notary Public.
3. Authorizes a North Dakota Notary Public located within North Dakota to perform a notarial act using communication technology for a remotely located individual if:

  • The Notary Public has:
    a. Personal knowledge (see NDCC §44-06.1-06(1)) of the identity of the individual;
    b. Satisfactory evidence of the remotely located individual’s identity by oath or affirmation from a credible witness appearing before the Notary Public under §44-06.1-06(2) or §44-06.1-13.1; or
    c. Satisfactory evidence of the remotely located individual’s identity by using at least two different types of identity proofing;
  • The Notary Public is able reasonably to confirm that a record before the Notary Public is the same record in which the remotely located individual made a statement or on which the individual executed a signature;
  • The Notary Public, or a person acting on behalf of the Notary Public, creates an audiovisual recording of the performance of the notarial act; and
  • For a remotely located individual located outside the United States:
    a. The record:
      i. Is to be filed with or relates to a matter before a public official or court,
      ii. governmental entity, or other entity subject to the jurisdiction of the United
      iii. States; or
      iv. Involves property located in the territorial jurisdiction of the United States or
      v. involves a transaction substantially connected with the United States; and
    b. The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

4. Requires the notarial certificate for a notarial act performed under NDCC §44-06.1-13.1 (using communication technology for a remotely located individual) to indicate that the notarial act was performed using communication technology.  Provides that a short-form certificate provided in NDCC §44-06.1-19 is sufficient for a notarial act performed for a remotely located individual if it:
  • Complies with the rules adopted under subdivision a of subsection 8; or
  • Is in the form provided in section 44 - 06.1 - 19 and contains a statement substantially as follows: "This notarial act involved the use of communication technology."
6. Requires a Notary Public, guardian, conservator or agent of a Notary Public, or a personal representative of a deceased Notary Public, to retain the required audiovisual recording of a notarial act performed for a remotely located individual, or cause the recording to be retain by a designated repository.  Stipulates that the recording must be retained for a period of at least ten years after the recording is made, unless a different period is required by rule of the Secretary of State.

7. Requires a Notary Public to notify the Secretary of State that the Notary Public will be performing notarial acts using communication technology for remotely located individuals and identify the technologies the Notary Public intends to use. Notification must be made before the Notary Public performs his or her initial notarial act using communication technology for a remotely located individual. Requires the communication technology and identity proofing to conform to standards, if any, established by the Secretary of State under NDCC §44-06.1-13.1(8) and §44-06.1-25
8. Grants additional rule-making authority to the Secretary of State.  The rules may:
  • Prescribe the means of performing a notarial act involving a remotely located individual using communication technology;
  • Establish standards for communication technology and identity proofing;
  • Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and
  • Establish standards and a period for the retention of an audiovisual recording created under NDCC §44-06.1-13.1(3)(c).
9. Requires the Secretary of State to consider, before adopting, amending or repealing a rule governing performance of a notarial act with respect to a remotely located individual:
• The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the national association of secretaries of state;
• Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and

 The views of governmental officials and entities and other interested persons.
10. Establishes that by allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual, or by providing storage of the audiovisual recording created under NDCC §44-06.1-13.1(3)(c), the provider of the communication technology, identity proofing or storage appoints the Secretary of State as the provider’s agent for service of process in any North Dakota civil action related to the notarial act.

Other Amendments to North Dakota Century Code
1. Clarifies language requiring an officer taking an acknowledgment of an instrument in North Dakota to endorse on, or attach to, the instrument a certificate substantially in the forms prescribed NDCC §47-19-27, §47-19-28, §47-19-29 and §47-19-30 OR in (RULONA) §44-06.1-19(1) and (2).
 

OHIO - SB 263
Approximate effective date - 9.19.2019
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Summary: Enacts the Notary Public Modernization Act. Amends numerous sections of Ohio Revised Statutes; repeals other sections. Provides definitions. Addresses qualifications, commissioning and investigations; notary education program and testing; notary public seal; official notary database records; authorized notarial acts and fees; notarial practices and responsibilities; notarial certificates; prohibited acts, immigration matters and unlicensed practice of law; electronic notarization and online notarization; electronic journal matters. Specifies implementing rules to be adopted by the Secretary of State. Makes necessary conforming amendments and repeals.

Qualifications, Commissioning, Investigations
See amended Sec. 147.01 Ohio Rev. Code; enacted Sec. 147.022; enacted Sec. 147.031; enacted Sec. 147.032; enacted Sec. 147.05; and enacted Sec. 147.37, Ohio Rev. Code
1. Clarifies that in order to qualify for an Ohio Notary Public commission, an applicant shall demonstrate that the applicant:
  a. Is (at least) eighteen years of age;
  b. Is a legal resident of Ohio or, an attorney admitted to practice law in Ohio with a principal place of business or the person’s primary practice in Ohio;
  c. Has obtained and submitted a criminal records check report completed within the preceding six months* and in accordance with Sec. 147.022, Ohio Rev. Code, demonstrating that the applicant has not been convicted of or pleaded guilty or no contest to a disqualifying offense, or any offense under an existing or former law of Ohio, any other state, or the United States that is substantially equivalent to such a disqualifying offense;
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*Information on accessing, completing and forwarding the form(s) needed to obtain a criminal records check will be provided to Notary commission applicants by the Secretary of State. The Secretary shall not accept a commission application that includes a criminal records check that is more than six months old.
  d. Has successfully completed an educational program and passed a test administered by entities authorized by the Secretary of State pursuant to Sec. 147.021, Ohio Rev. Code.

NOTE – Qualification Exemptions ONLY for Attorneys Licensed to Practice in Ohio.
• Not required to obtain a criminal records check as a condition of qualifying for an Ohio Notary Public commission.
• Exempt from both the education and testing requirements, IF commissioned as an Ohio Notary Public prior to the effective date of amended Sec. 147.01, Ohio Rev. Code.
• Exempt from the testing requirement but NOT exempt from the education requirement If seeking an Ohio Notary Public commission after the effective date of amended Sec. 147.01, Ohio Rev. Code.

2. Moves responsibility for processing of Notary Public applications and issuing commissions from the county courts of common pleas, to the Secretary of State. Further requires that commission application submissions (new and renewing) to the Secretary of State, and Notaries’ status change notifications submitted to the Secretary of State (name/address change, resignation, criminal convictions during the commission term), shall be done electronically.
3. Provides that a Notary commission set to expire shall not be renewed unless the Notary submits, through the entities authorized to provide education and testing services (see Sec. 147.03): a new criminal records check report; a fee not to exceed $60 (set by rule of the Secretary of State); a renewal application on a form prescribed by the Secretary of State.
4. Allows a Notary Public to apply for commission renewal beginning three months prior to the Notary’s commission expiration date. Further provides that if a Notary’s commission expires before a renewal application has been submitted, the Secretary shall not renew the expired commission but shall allow the person to apply for a new commission.
5. Requires the Secretary of State to establish a fee of not more than $150 to be paid by each applicant for a Notary Public commission. Requires the fee to be remitted by the applicant/Notary Public to the authorized entity that administered the educational program and test, and a portion of the fee (not to exceed $15) to be remitted to the Secretary of State. Requires the Secretary of State to adopt rules to establish the actual commission fee as well as what portion of the fee (not to exceed $15) shall be remitted to the Secretary, and what portion a Notary who is an attorney shall remit to the entity that administered the applicant’s educational program.
6. Requires a Notary Public—including a Ohio attorney-Notary Public--to inform the Secretary of State of being convicted of or pleading guilty or no contest to: any disqualifying offense (as defined in Sec. 147.011, Ohio Rev. Code); or any offense under an existing or former law of Ohio, any other state, or the United States that is substantially equivalent to a disqualifying offense.
7. Provides the Secretary of State with authority to investigate possible violations of Chapter 147, Ohio Rev. Code. The Secretary may investigate based on belief that a violation has occurred or upon a signed complaint from any person.
8. Provides for the Secretary to hold a disciplinary hearing if deemed appropriate after an investigation.
9. Authorizes the Secretary, after holding an administrative hearing and concluding that a violation of Chapter 147 has occurred, to do any of the following:
a. Revoke the Notary Public's commission;
b. Suspend the Notary Public 's commission for a specified period of time or until fulfillment of a condition, such as retraining, or both;
c. Issue a letter of admonition that shall be placed in the notary public's record.
10. Prohibits a person whose Notary commission has been revoked from applying for a subsequent Notary commission.
11. Allows the Secretary of State to adopt rules to establish procedures for investigations, hearings regarding violations of Chapter 147 and disciplinary actions.

Notary Public Seal
See amended Sec. 147.04; enacted Sec. 147.041
1. Requires a Notary Public to obtain a seal before entering into the performance of any official duties. Retains language allowing an Ohio Notary Public to use either an ink stamp or embossing seal as his or her seal of office.
2. Clarifies the dimensions of the circle (at least three-quarters of an inch, but no larger than one inch) inside of which the Ohio Coat of Arms must appear on the seal.
3. Provides that a Notary Public commissioned prior to the effective date of Sec. 147.041 may continue to use a seal that met the requirements of Sec. 147.04 and that was in the Notary’s possession before that effective date.

Official Notary Database Records
See amended Sec. 147.01 and enacted Sec. 147.051 Ohio Rev. Code
1. Charges the Secretary of State with creating and maintaining an online database of Ohio Notaries Public, on a publicly accessible web site that provides the following information on each Notary Public:
  a. A verification of the authority and good standing of the individual to perform notarial acts;
  b. Whether the notary is registered to perform online notarizations, as defined in Sec. 147.60, Ohio Rev. Code;
  c. A description of any administrative or disciplinary action taken against the notary.

Definitions
See enacted Sec. 147.011, Ohio Rev. Code
Defines the following terms:
1. "Acknowledgment" - a notarial act in which the signer of the notarized document acknowledges all of the following:
  a. That the signer has signed the document;
  b. That the signer understands the document;
  c. That the signer is aware of the consequences of executing the document by signing it.
2. "Criminal records check" - has the same meaning as in section 109.572 of the Revised Code.
3. "Disqualifying offense" - a crime of moral turpitude as defined in section 4776.10 of the Revised Code and a violation of a provision of Chapter 2913 of the Revised Code.
4. "Jurat" - a notarial act in which both of the following are met:
  a. The signer of the notarized document is required to give an oath or affirmation that the statement in the notarized document is true and correct;
  b. The signer signs the notarized document in the presence of a Notary Public.
5. "Notarial certificate" - the part of, or attachment to, a document that is completed by the Notary Public and upon which the Notary Public places the Notary Public's signature and seal.

Notary Education Program, Testing
See amended Sec. 147.01 and enacted Sec. 147.021, Ohio Rev. Code
1. Clarifies that the entities authorized by the Secretary of State pursuant to Sec. 147.021 or 147.63, Ohio Rev. Code, shall administer the educational program and required test or course of instruction and examination, as applicable.
2. Allows the Secretary of State to authorize an educational program to be completed online.
3. Requires the Secretary of State to adopt rules (pursuant to Chapter 119, Ohio Rev. Code) establishing standards and curricula for the educational program and addressing matters including the entities authorized to administer the educational program and the required test; subject matter to be included in the standards and curricula of the program; and provisions and content of the required test. Rule requirements affecting the educational program and test must be established in coordination with the entities authorized to administer the program and test.
4. Specifies certain entities that shall be included among those authorized to administer the educational program and test.

Authorized Notarial Acts; Notarial Practices; Fees
See amended Sec. 147.07; amended Sec. 147.08; and enacted Sec. 147.59, Ohio Rev. Code
1. Retains the authorized notarial duties of taking acknowledgments, administering oaths and affirmations (including jurats), and taking/certifying depositions. Eliminates the authority for an Ohio Notary Public to receive, make and record protests. (Note: The requirement to record every protest in an official register is also repealed.)
2. Establishes the requirements for a notarial act involving an individual with limited (or no) physical ability to sign a document, who directs a designated alternative signer to sign on the individual’s behalf. The designated alternative signer must be an individual other than the officiating Notary Public.
3. Establishes increased fees a Notary may charge for official acts:
  a. Up to five dollars for any notarial act that is not an online notarization ;
  b. For an online notarization, up to twenty-five dollars.
4. Prohibits a Notary who performs an online notarization and charges the allowed $25 fee from also charging the $5 fee allowed for a notarial act that is not an online notarization.
5. Prohibits calculating fees charged for notarial acts on a per-signature basis.
6. Authorizes charging of a reasonable travel fee which must be agreed to by the Notary and the principal (person receiving the notarial act) prior to the notarial act.
7. Authorizes the Secretary of State to adopt rules to increase the Notary fees authorized under Sec. 147.08.

Notarial Certificates
See enacted Sec. 147.542; amended Sec. 147.55; enacted Sec. 147.551; enacted Sec. 147.59; enacted Sec. 147.64; and enacted Sec. 147.66, Ohio Rev. Code
1. Requires a Notary Public to provide a completed notarial certificate for every notarial act the Notary performs. Provides the following standards for notarial certificates.
2. Requires that for an acknowledgment and a jurat, the corresponding notarial certificate shall indicate the type of notarization being performed.
3. Requires that if a notarial certificate incorrectly indicates the type of notarization performed, the Notary Public shall provide a correct certificate at no charge to the person signing in question.
4. Requires that with regard to a notarial act, a certificate for an acknowledgment notarial act shall clearly state that no oath or affirmation was administered to the signer; and a jurat certificate shall clearly state that an oath or affirmation was administered to the signer.
5. Provides for use of the notarial certificate that correctly reflects the act performed, by prohibiting a Notary Public’s use of an acknowledgment certificate when an oath or affirmation was administered by the Notary; and prohibiting a Notary Public’s use of a jurat certificate when no oath or affirmation was administered.
6. Specifies the means by which a notarial certificate required under Sec. 147.542 may be provided:
  a. Preprinting on a notarial document;
  b. Ink stamp;
  c. Handwritten note;
  d. A separate, attached document.
7. Provides the required information elements to be shown on a notarial certificate:
  a. The state and county—venue—where the notarization is being performed;
  b. The wording of the acknowledgment or jurat in question;
  c. The date on which the notarial act was performed;
  d. The signature of the notary, exactly as shown on the notary's commission;
  e. The notary's printed name, displayed below the notary's signature or inked stamp;
  f. The notary's notarial seal and commission expiration date.
8. Requires that the notarial certificate for an electronic notarization performed by a Notary Public pursuant to Sec. 147.591; and the notarial certificate for an online notarization performed by an Online Notary Public pursuant to Secs. 147.60 through 147.66; shall each include a statement as to how the notarization was performed (electronic notarization or online notarization, as appropriate). Further requires that an Online Notary Public must attach his or her electronic signature and electronic seal to the notarial certificate of an electronic document in a manner that is capable of independent verification and makes evident any subsequent change or modification to the electronic document.
9. Authorizes a Notary Public to explain to a signer the difference between an acknowledgment and a jurat, but prohibits any non-attorney Notary from advising the person on the type of notarial act that best suits a situation.
10. Amends statutory short-form certificate examples.
11. Establishes a statutory short-form certificate example for a jurat.
12. Provides that, for a notarial act involving an individual with limited (or no) physical ability to sign who designates an alternative individual to sign on his/her behalf, the notarial certificate must give the name of the alternative signer and state that the document was signed pursuant to Sec. 147.59 at the direction of the designating individual.
13. Requires the Secretary of State to include, in the rules adopted under Sec. 147.62, Ohio Rev. Code (pertaining to online notarizations), modified forms of notarial certificates for any notarial act that is an online notarization.

Prohibited Acts
See enacted Sec. 147.141, Ohio Rev. Code
1. Establishes an extensive list of acts that an Ohio Notary Public may not perform or commit. A Notary Public:
  a. Shall not perform a notarial act regarding a record or document executed by the notary;
  b. Shall not notarize the notary's own signature;
  c. Shall not take the notary's own deposition;
  d. Shall not perform a notarial act if the notary has a conflict of interest regarding the transaction in question;
  e. Shall not certify* that a document is either of the following:
     i. An original document;
     ii. A true copy of another record.

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*SB 263 provides that this prohibition shall not be construed to prevent a Notary Public from notarizing another person’s written statement in which the person is certifying that a document held by the person is a true copy of an original document. This is sometimes referred to as a “certification of copy by document custodian.” This prohibition does not apply to an Online Notary’s certification of a record from his or her own electronic journal.
  f. Shall not use a name or initial in signing certificates other than that by which the Notary Public is commissioned;
  g. Shall not sign notarial certificates using a facsimile signature stamp unless the Notary Public has a physical disability that limits or prohibits the notary's ability to make a written signature and unless the notary has first submitted written notice to the Secretary of State with an example of the facsimile signature stamp;
  h. Shall not affix the notary's signature to a blank form of an affidavit or certificate of acknowledgment and deliver that form to another person with the intent that it be used as an affidavit or acknowledgment;
  i. Shall not take the acknowledgment of, or administer an oath or affirmation to, a person who the Notary Public knows to have been adjudicated mentally incompetent by a court of competent jurisdiction, if the acknowledgment or oath or affirmation necessitates the exercise of a right that has been removed;
  j. Shall not notarize a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of the document at the time of notarization;
  k. Shall not alter anything in a written instrument after it has been signed by anyone;
  l. Shall not amend or alter a notarial certificate after the notarization is complete;
  m. Shall not notarize a signature on a document if the document is incomplete or blank;
n  . Shall not notarize a signature on a document if it appears that the signer may be unduly influenced or coerced so as to be restricted from or compromised in exercising the person's own free will when signing the document;

  o. Shall not take an acknowledgment of execution in lieu of an oath or affirmation if an oath or affirmation is required;
  p. Shall not determine the validity of a power of attorney document or any other form designating a representative capacity, such as trustee, authorized officer, agent, personal representative, or guardian, unless that notary is an attorney licensed to practice law in this state.
2. Provides that "conflict of interest" as used in Sec. 147.141(A)(4) means either of the following:
  a. The notary has a direct financial or other interest in the transaction in question, excluding the fees authorized under this Chapter.
  b. The notary is named, individually or as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, lessor, or lessee, or as a party in some other capacity to the transaction.
3. Provides additional prohibited acts in other bill sections dealing with immigration matters, unlicensed practice of law and notarial certificates.

Immigration Matters; Unlicensed Practice of Law
See enacted Sec. 147.142 and enacted Sec. 147.542, Ohio Rev. Code
1. Provides the acts that a Notary Public who is not a licensed attorney in Ohio may not perform. A Notary Public who is not a licensed attorney in Ohio:

  a. May not represent or advertise himself or herself as an immigration consultant or an expert in immigration matters.
  b. May not provide any service that constitutes the unauthorized practice of law in violation of Sec. 4705.07 of the Ohio Revised Code.
  c. May not state or imply that the Notary Public is an attorney licensed to practice law in this state.
  d. May not solicit or accept compensation to prepare documents for or otherwise represent the interest of another person in a judicial or administrative proceeding, including a proceeding relating to immigration to the United States, United States citizenship, or related matters.
  e. May not solicit or accept compensation to obtain relief of any kind on behalf of another from any officer, agency, or employee of Ohio or of the United States.
  f. May not use the phrase "notario" or "notario publico" to advertise the services of a Notary Public, whether by sign, pamphlet, stationery, or other written communication, or by radio, television, or other non-written communication.
  g. May not advise a person on the type of notarial act that best suits a situation.

Electronic Notarization; Online Notarization
See enacted Secs. 147.591, 147.60, 147.61, 147.62, 147.63, 147.631, 147.64, 147.65, and 147.66, Ohio Rev. Code
1. Defines key terms used in Sections 147.61 through 147.66, Ohio Rev. Code:
  a. "Appear in person" - being in the same physical location as another person and being close enough to hear, communicate with, and exchange tangible identification credentials with that individual. "Appear in person" also means being in a different location as another person and interacting with that individual by means of live two-way, audio-video communication.
  b. "Credential analysis" - a process or service operating according to standards adopted by the Secretary of State under section 147.62 of the Revised Code through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources.
  c. "Electronic" - relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  d. "Electronic document" - information that is created, generated, sent, communicated, received, or stored in an electronic medium and is retrievable in perceivable form.
  e. "Electronic seal" - information within a notarized electronic document to which all of the following apply:
     i. The information confirms the Notary Public's name, jurisdiction, and commission expiration date.
     ii. The information generally corresponds to the contents, layout, and format of the Notary Public's seal for use on paper documents, as required under section 147.04 of the Revised Code.
  f. "Electronic signature" - an electronic sound, symbol, or process attached to or logically associated with an electronic document and executed or adopted by a natural person with the intent to sign the electronic document.
  g. "Identity proofing" - a process or service operating according to standards adopted by the Secretary of State under section 147.62 of the Revised Code through which a third person affirms the identity of a natural person through the review of personal information from public and proprietary data sources.
  h. "Notarial act" - the performance of a function authorized under sections 147.07 and 147.51 of the Revised Code. "Notarial act" does not include the taking or certifying of depositions.
  i. "Online notarization" - a notarial act performed by means of live two-way video and audio conference technology that conforms to the standards adopted by the Secretary of State under section 147.62 of the Revised Code.
  j. "Online Notary Public" - a Notary Public who has been duly appointed and commissioned under section 147.01 of the Revised Code and has received authorization by the Secretary of State under section 147.63 of the Revised Code to perform online notarizations.
  k. "Principal" - a natural person whose electronic signature is notarized in an online notarization, or the natural person taking an oath or affirmation from the Online Notary Public. "Principal" does not include a natural person taking an oath or giving an affirmation in the capacity of a witness for the online notarization.
  l. "Remote presentation" - transmission to an Online Notary Public through live two-way video and audio conference technology of an image of a government-issued identification credential that is of sufficient quality to enable the Online Notary Public to identify the principal seeking the Online Notary Public's services and to perform credential analysis.
  m. "Territory of the United States" - the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.
2. Provides that, as used in Sec. 147.591, Ohio Rev. Code, the following terms have the same meanings as in Sec. 147.60, Ohio Rev. Code: “electronic document”; “electronic seal”; “electronic signature”; and “online notarization.”
3. Authorizes any Ohio Notary Public to obtain an electronic seal and an electronic signature for the purposes of notarizing electronic documents under Sec. 147.591, Ohio Rev. Code. Requires a Notary Public’s compliance with Sec. 147.66, Ohio Rev. Code, with regard to the electronic seal and electronic signature.
4. Establishes that Sections 167.60 through 147.66, Ohio Rev. Code, apply to online notarizations and online Notaries Public. Further establishes that to the extent that a provision of Sections 147.60 through 147.66, Ohio Rev. Code conflicts with another provision of Chapter 147 or other applicable law, Sections 147.60 through 147.66 supersede the other provision.
5. Establishes that an electronic document that is signed with an electronic signature in the physical presence of the Notary Public, and notarized with an electronic seal, shall be considered an original document.
6. Provides for the acceptance by county auditors, engineers and recorders of a printed copy of a document that was executed electronically by the parties and acknowledged or sworn before a Notary Public, when such acceptance is for purposes of approval, transfer and recording to the same extent as any other document that is submitted by an electronic recording method. Such a document shall not be rejected solely because it contains electronic signatures or an electronic notarization, if that document contains the notarial certificate required by Sec. 147.542, Ohio Rev. Code and the notification required by that section when a document is notarized electronically or online.
7. Establishes that when all the requirements of Sec. 147.59(A) pertaining to an individual’s use of a designated alternative signer are met, an individual may use a designated alternative signer for purposes of an online notarial act.
8. Authorizes those duly appointed and commissioned Ohio Notaries Public who are also residents of Ohio to apply to the Secretary of State for authorization to act as an Online Notary Public during the term of that Notary’s commission. Such application will be on a form prescribed by the Secretary. In making the application the applicant must demonstrate to the satisfaction of the Secretary that the applicant will comply with the Secretary’s adopted standards pertaining to online notarization, and that the applicant is otherwise qualified to be an Online Notary.
9. Requires individuals seeking authorization to act as an Online Notary Public to first successfully complete a course of instruction approved by the Secretary of State, and pass an examination based on the course. Specifies minimum course content requirements. Authorizes the course to be taken in conjunction with the educational program required under Sec. 147.021, Ohio Rev. Code for a Notary Public commission.
10. Authorizes the Secretary of State to charge a fee for the Online Notary course and examination to each person seeking an Online Notary Public authorization. Specifies that the Notary Public taking the Online Notary course and examination shall remit applicable fees to the authorized entity administering the course and examination, and to the Secretary of State. Requires the Secretary of State to establish by rule the portion of fees payable to the authorized entity, and those payable to the Secretary of State.
11. Prohibits the Secretary of State from charging a fee to a Notary Public who is obtaining an electronic seal and signature solely for the purpose of conducting electronic notarizations that are not online notarizations.
12. Requires the Secretary of State to approve one business entity, comprised of bar associations with statewide scope and regional presence that have expertise and experience in notary laws and processes, to provide the course and administer the examination to become an online notary.
13. Requires the application for authorization to act as an Online Notary Public to be transmitted electronically to the Secretary of State, and prescribes the information that the application shall include.
14. Provides that the Secretary of State may deny an application for an Online Notary Public authorization if any of the required information is missing or incorrect on the application form. Further provides that the Secretary may also deny an application for Online Notary Public authorization if the applicant identifies on the application an online notarization technology that does not conform to the Secretary’s standards established pursuant to Sec. 147.62, Ohio Rev. Code.
15. Provides that the Online Notary Public authorization for a non-attorney Notary Public shall expire when the Notary Public’s commission expires or is revoked pursuant to the relevant sections of Ohio’s Notary Public law. Further provides that the Online Notary Public authorization for a non-attorney Notary Public shall be renewed when the Notary Public’s commission is renewed; renewal requires the Notary to submit the following to the Secretary of State (through the “one business entity” noted above):
  a. A fee, set by the Secretary of State, of not more than four times the fee prescribed in Sec. 147.031(B)(2) of the Revised Code;
  b. An application for renewal on a form prescribed by the secretary;
  c. Evidence of having completed continuing education, pursuant to rules that shall be adopted by the Secretary of State and that will address continuing education requirements for an Online Notary Public authorization.
16. Requires the Secretary of State to adopt rules addressing continuing education requirements for holding an Online Notary Public authorization; such rules must specify the hours of continuing education required and may specify continuing education content. Prohibits the Secretary of State from renewing an online notarization authorization unless the applicant has completed the continuing education required under the administrative rules adopted by the Secretary of State.
17. Provides that the Online Notary Public authorization for a Notary Public who is an Ohio attorney shall expire on the earlier of five years after the date authorization is granted or when the attorney’s term of office as a Notary Public ends. Further provides that an Ohio attorney-Online Notary Public may apply to renew the authorization three months prior to the authorization’s expiration date.
18. Provides that if an Online Notary Public’s online notarization authorization expires before the Notary submits the application for renewal, the Secretary of State shall not renew the expired authorization but shall permit that person to apply for a new Online Notary Public authorization.
19. Expressly authorizes performance of an online notarization by use of audio-video communication that complies with the Notary Public Modernization Act and any other rules adopted by the Secretary of State, for any principal located within the territory of the United States.
20. Authorizes performance of an online notarization for a principal located outside the territory of the United States, but only if these conditions are met:
  a. The act is not known by the Online Notary Public to be prohibited in the jurisdiction in which the principal is physically located at the time of the act.
  b. The record meets any of the following:
     i. Is part of, or pertains to, a matter that is to be filed with or is before a court, governmental entity, or other entity located in the territorial jurisdiction of the United States;
     ii. Involves real or personal property located in the territorial jurisdiction of the United States;
     iii. Is part of, or pertains to, a transaction substantially connected with the United States.
21. Requires that, for an Ohio Online Notary Public to perform an online notarization, the Notary must be a resident of Ohio (a requirement of qualifying as an Online Notary Public); and must be physically located within the geographic boundaries of Ohio at the time of the online notarization.
22. Authorizes an Online Notary Public to perform any authorized notarial acts as an online notarization, EXCEPT the taking or certifying of a deposition (performing this particular act as an online notarization is expressly prohibited).
23. Requires that if an online notarization requires a principal to appear before an Online Notary Public, the principal shall appear in person before the Notary (see Definitions) and the principal and Notary shall each sign the record with an electronic signature.*
*NOTE: This requirement for both the principal and Notary to use an electronic signature clarifies that online notarizations shall be performed only with regard to electronic records.
24. Requires an Online Notary Public performing an online notarization to determine, from personal knowledge or satisfactory evidence of identity, that the principal appearing before the Notary by means of audio-video communication is the individual that he or she purports to be.
25. Establishes what constitutes satisfactory evidence of identity of a principal appearing before an Online Notary by means of audio-video communications. Either:
  a. All of the following (items i through iii):
     i. Remote presentation by the principal of a government- issued identification credential, including a passport or driver's license, that contains the signature and photograph of the principal; and
     ii. Credential analysis of the identification credentials provided; and
     iii. Identity proofing (see Definitions) of the principal.

 Or:
  b. Verification by one or more credible witnesses who appear in person before the notary and who can be identified by either personal knowledge or all of the following (items i through iii):
     i. Presentation of a government-issued identification credential, including a passport or driver's license, that contains the signature and photograph of the witness; and
     ii. Credential analysis of the identification credentials provided; and
     iii. Identity proofing of the witness.
26. Establishes that an electronic document notarized through an online notarization shall be considered an original document.
27. Requires the Secretary of State to adopt rules under Chapter 119, Ohio Rev. Code necessary to implement, set and maintain standards for online notarization and online Notaries Public. The rules shall address, at a minimum, all of the following:
  a. The standards, procedures, application forms, and fees for the authorization of a Notary Public to act as an Online Notary Public;
  b. The means of performing online notarizations;
  c. Standards for the technology to be used in online notarizations;
  d. Standards for remote presentation, credential analysis, and identity proofing;
  e. Standards for the retention of records relating to online notarizations;
  f. The modification of forms of notarial certificates for any notarial act that is an online notarization;
  g. Standards and requirements for the termination of a Notary Public 's authorization to perform online notarizations.
28. Addresses the following with regard to the technology used by an Online Notary Public to perform an online notarization:
  a. Provides that nothing in Sec. 147.63, Ohio Rev. Code shall be construed as prohibiting an Online Notary Public from receiving, installing and utilizing a software update to the online notarization technology that the Notary has reported (to the Secretary of State) that he/she will use, provided the software update does not result in a materially different technology than that reported.
  b. Requires an Online Notary Public to inform the Secretary of State (on a form prescribed by the Secretary) of the intent to change either the hardware or software that the Notary intends to use to perform online notarizations.
  c. Allows the Secretary of State to suspend or revoke an Online Notary Public’s authorization if the Secretary determines that new hardware or software the Notary reports he or she intends to use does not meet standards prescribed in the Secretary’s administrative rules.

Electronic Journal Required, Online Notarial Acts
See enacted Sec. 147.65, Ohio Rev. Code
1. Requires an Online Notary Public to maintain one or more electronic journals in which the Online Notary Public records, in chronological order, all online notarizations that the Online Notary Public performs
.*
*Senate Bill 263 does not require Notary recordkeeping (journaling) for paper-based or electronic notarial acts performed with the signer physically present before the Notary, but this practice is strongly recommended by the American Society of Notaries. We recommend that Notaries wishing to keep records of all notarial acts performed should maintain a separate electronic journal in which only online notarizations are recorded.
2. Repeals the requirement that a Notary Public record any protests performed in an official register (necessitated by repeal of an Ohio Notary Public’s authority to receive, make and record protests).
3. Requires an Online Notary Public, who renews his or her authorization to notarize electronically, to use a new electronic journal to record online notarizations beginning on the date the renewal is effective.
4. Requires an electronic journal for online notarizations to enable access by a password or other secure means of authentication, and be in a tamper-evident format complying with rules adopted by the Secretary of State.
5. Provides the minimum information that must be recorded in the electronic journal, for every online notarization:
a. The date and time of the notarial act;
b. The type of notarial act;
c. The title or a description of the record being notarized, if any;
d. The electronic signature of each principal;
e. The printed full name and address of each principal;
f. If identification of the principal is based on personal knowledge, a statement to that effect;
g. If identification of the principal is based on satisfactory evidence of identity pursuant to division (E)(2) of section 147.64 of the Revised Code, a description of the evidence relied upon, including the date of issuance or expiration of any identification credential presented;
h. If identification of the principal is based on a credible witness or witnesses, the name of the witness or witnesses;
i. If the notarization was not performed at the Online Notary Public's business address, the address where the notarization was performed;
j. A description of the online notarization system used;
k. The fee, if any, charged by the notary;
l. The name of the jurisdiction in which the principal was located at the time of the online notarization;
m. The [audio-video communication] recording upon which the identification of the principal is based, as required under Sec. 147.65(D)(3), Ohio Rev. Code;
n. Any other information required by the Secretary of State.
6. Prohibits an Online Notary Public from recording a Social Security Number in the electronic journal.

Security and Storage of Online Notarization Records
See enacted Sec. 147.65 and enacted Sec. 147.66, Ohio Rev. Code
1. Requires that, except in the case of an Online Notary Public’s resignation, revocation or expiration of authorization, an Online Notary Public’s electronic journal and audio-video recordings shall be maintained by the Notary during the [entire] term of the Online Notary’s authorization to perform online notarizations.
2. Prohibits an employer of an Online Notary Public from retaining the Notary’s electronic journal when the Notary’s employment ceases, unless the retention is due to an agreement the Notary Public may make with a current or former employer to act as a third party that keeps and stores the Notary’s electronic journal (subject to rules of the Secretary of State).

3. Authorizes an Online Notary Public to use a third party to keep and store the electronic journal, and requires the Secretary of State to adopt rules that set standards pertaining to the use of such a third party.
4. Provides detailed notification requirements for third parties keeping and storing electronic journals for Online Notaries Public; such notifications relate to unauthorized access, modification, transfer, duplication, use or loss of any electronic journals in the third party’s possession or control. Charges the Online Notary Public with notification responsibilities, if notice has not already been given, in the case of unauthorized access, modification, transfer, duplication, use or loss of the Online Notary Public’s electronic journal (and official electronic signature or electronic seal).
5. Specifies action relating to an electronic journal that an Online Notary Public must take upon the Notary’s resignation, revocation or expiration without renewal of his or her authorization to perform online notarizations. Upon these occurrences the Online Notary Public must transmit the electronic journal to the Secretary of State, or to a repository approved by the Secretary. This requirement does not apply to electronic journals that, as of the date of the resignation or expiration, were no longer kept in accordance with Sec. 147.65(F), Ohio Rev. Code. The Online Notary’s electronic journal must be maintained by the Secretary or the repository for ten years. The Online Notary must report, to the Secretary of State, the location of any electronic journal transmitted to a repository.
6. Requires, upon the death or adjudicated incompetence of a current or former Notary Public, certain persons to transmit an Online Notary Public’s electronic journal to the Secretary of State or to a repository approved by the Secretary. These persons are the executor or administrator of the Online Notary Public’s estate; the Notary’s guardian; or any other person knowingly in possession of the Online Notary’s electronic journal.
7. Requires an Online Notary Public; or the Notary’s personal representative or guardian; or the administrator or executor of the Notary’s estate; to provide the Secretary of State with instructions for accessing any electronic journal maintained or stored by the Online Notary Public in the event of the Notary’s commission resignation, revocation, or expiration without renewal, if the person possesses such instructions. This requirement must also be met by any of those persons in the event of the Notary’s death or adjudicated incompetence.
8. Allows an Online Notary Public to meet all applicable repository requirements of Chapter 147, Ohio Rev. Code or rules of the Secretary of State, by using any current or former employer that is approved as a repository by the Secretary of State.

Inspection of Journal Records
See enacted Sec. 147.65, Ohio Rev. Code
1. Authorizes an Online Notary Public to certify copies made from his or her electronic journal, and clarifies that this act would not violate the prohibition against an Ohio Notary Public certifying a record to be an original or a true copy of another record.
2. Provides that any person may inspect or request a copy of an entry or entries in an Online Notary Public’s journal provided that all the following conditions are met:
  a. The person specifies the month, year, type of record, and name of the principal for the
  b. notarial act, in a signed tangible [paper] or electronic request.
  c. The notary does not surrender possession or control of the journal.
  d. The person is shown or given a copy of only the entry or entries specified.
  e. A separate new entry is made in the journal, explaining the circumstances of the request and noting any related act of copy certification by the Online Notary Public.
3. Allows an Online Notary Public to deny access to his or her journal or entries if the Notary has a reasonable and explainable belief that a person requesting information from the journal has a criminal or other inappropriate purpose.

4. Requires an attorney-Online Notary to only allow inspection of his or her journal, or to provide a journal-entry copy, if the requesting party was a principal in the transaction(s) to which the journal entry or entries apply, or only if the requesting party is acting on a principal’s behalf. Allows an attorney-Online Notary to deny journal inspection, or receipt of any journal entry copy, based on attorney-client privilege.
5. In the case of a journal that has been transferred from an attorney-Online Notary Public to the Secretary of State or to an approved repository, requires the Secretary of State or the repository to only allow inspection of a journal or provide a journal-entry copy if the requesting party was a principal in the transaction(s) related to the journal entry or entries, or if the requesting party is acting on a principal’s behalf.
6. Provides that a journal may be examined and copied without restriction by a law enforcement officer (as defined in Sec. 2901.01, Ohio Rev. Code) in the course of an official investigation, subpoenaed by court order, or surrendered at the direction of the Secretary of State, except that an attorney-Online Notary may object to the examination or copying of the attorney-Online Notary’s journal based on attorney-client privilege.

Integrity and Security of Online Notarization
See enacted Sec. 147.65and enacted Sec. 147.66, Ohio Rev. Code
1. Requires an Online Notary Public to do all of the following:
  a. Take reasonable steps to ensure the integrity, security, and authenticity of online notarizations;
  b. Take reasonable steps to ensure that the two-way, audio-video communication used in an online notarization is secure from unauthorized interception;
  c. Create and maintain, pursuant to Sec. 147.65, a complete recording of the audio-video communication that is the basis for identification of a principal for each online notarization;
  d. Maintain a backup for the required electronic journal and audio-video recordings;
  e. Safeguard the electronic journal and all other notarial records by doing all of the following:
     i. Not allowing the electronic journal to be used by another notary;
     ii. Creating the audio-video recording required under Sec. 147.65(D)(3) in a tamper-evident electronic format complying with the rules of the Secretary of State adopted under Sec. 147.62, Ohio Rev. Code;
     iii. Protecting the electronic journal and audio-video recordings from unauthorized use.
  f. Surrender or destroy the electronic journal and all other notarial records only by rule of law, by court order, or at the direction of the Secretary of State;
  g. Not surrender the electronic journal to an employer upon termination of employment.
2. Requires an Online Notary Public to take reasonable steps to ensure that any device or software used to create an official electronic signature is current and has not been recalled or declared vulnerable by the device or software's manufacturer, seller, or developer.
3. Requires an Online Notary Public to do both of the following:

  a. Except as provided in Sec. 147.65(D)(5)(b) of the Revised Code, keep the Online Notary Public's electronic journal, official electronic signature, and electronic seal secure and under the Online Notary Public 's exclusive control;
  b. Use the Online Notary Public's official electronic signature and electronic seal only for
performing online notarizations or notarizations pursuant to section 147.591 of the Revised Code.
4. Prohibits an Online Notary Public from allowing another person to use the Online Notary Public's electronic journal, official electronic signature, or electronic seal.

Additional Provisions
See enacted Sec. 147.031and enacted Sec. 147.032, Ohio Rev. Code
1. Provides that a commission for a Notary Public appointed prior to the effective date of Sec. 147.031, Ohio Rev. Code, remains valid until that commission’s expiration date, but clarifies that a Notary Public commission issued to an attorney shall be governed by Sec. 147.03 of the Revised Code.
2. Authorizes the Secretary of State to establish an advisory board to discuss matters related to Notary law and procedures. The board would meet as deemed necessary by the Secretary.
 

RHODE ISLAND - HB 7080
Eff. 07.01.2019
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Enacts the Uniform Real Property Electronic Recording Act, by creating Chapter 13.2 in Title 34 (“Property”) of Rhode Island General Laws.  Authorizes electronic notarization of real property documents that are eligible for recording in Rhode Island’s land records.  Authorizes a city or town clerk/recorder of deeds, at the clerk’s/recorder’s option, to accept electronic documents for recording real property and land records and to index and store those documents.  Requires the continued acceptance of paper documents for recording, and entries for both electronic and paper documents to be made in the same index.

1. Provides that:

• A “document” under the Act may be tangible (paper) or electronic.
• An electronic document satisfying the requirements of URPERA also satisfies any other law requiring that as a condition for recording, a document must be an original, in writing, or on paper or other tangible medium.
• If a law requires, as a condition for recording, that a document be signed, the requirement is satisfied by an electronic signature ― an electronic sound, symbol or process attached to or logically associated with a document by a person with the intent to sign the document.
• A Notary Public may electronically notarize an electronic document to be filed for recording in Maryland’s land records.  A Notary Public’s electronic signature, attached to or logically associated with an electronic document along with all other information required in the performance of a notarial act, meets any requirement that a document be notarized, acknowledged, verified, witnessed or made under oath.  A physical or electronic image of a stamp, impression or seal need not accompany an electronic signature
.

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RHODE ISLAND - HB 7502 Sub A (SB 2560 Sub A)
Effective 01.01.2019
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Summary:  Repeals current state statutes concerning Notaries Public, and adopts an amended version of the Revised Uniform Law on Notarial Acts (RULONA). Authorizes defined notarial acts to be performed on “tangible” (paper) or electronic “records” (documents) by a Notary Public or other authorized individual. Provides requirements for authorized notarial acts, for identifying signers, for a Notary Public’s official stamp, and for a Notary Public’s notification to the commissioning agency (the Office of the Secretary State) of the intent to notarize electronically. Makes various conforming amendments.
 
1. Defined terms include:
  a. “Notarial officer” – a Notary Public OR other individual authorized to perform notarial acts.
  b. “Notary Public” – an individual commissioned by the Governor of Rhode Island to perform notarial acts.
  c. “Record” - information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form (i.e., “record” means a paper or electronic document).
  d. “Signature” - a tangible symbol (for example, a wet-ink scrawl) or an electronic signature that evidences the signing of a record.

  e. “Electronic signature” – an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.
  f. “Sign” – To execute or adopt a tangible symbol; or to attach to or logically associate with the record an electronic symbol, sound, or process; and to do so with present intent to authenticate or adopt a record.
  g. “Notarial act” – an act, whether performed relative to a tangible (i.e., paper) or electronic record, that a Rhode Island notarial officer is authorized to perform. The term includes taking an acknowledgment; administering an oath or affirmation; taking a verification on oath or affirmation; witnessing or attesting a signature; certifying or attesting a copy; noting a protest of a negotiable instrument; transacting, doing and finishing all matters and things relating to protests and protesting bills of exchange and promissory notes and all other matters within their office required by law; and taking depositions pursuant to law.
  h. “Official stamp” – a physical image affixed to a tangible record or an electronic image attached to or logically associated with an electronic record.
  i. “Stamping device” – a physical device capable of affixing an official stamp upon a tangible record; or an electronic device or process capable of attaching to or logically associating an official stamp with an electronic record. 
 
 
2. The RULONA specifies requirements for the performance of authorized notarial acts:
  a. Personal appearance required:  If a notarial act relates to a statement made in or a signature executed upon a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.
  b. When taking an acknowledgment, the notarial officer shall determine, from personal knowledge or satisfactory evidence of identity, that the individual appearing before the officer and making the acknowledgment has the identity claimed and that the signature on the record is the individual’s signature.
  c. When taking a verification of a statement upon oath or affirmation, the notarial officer shall determine, from personal knowledge or satisfactory evidence, that the individual appearing before the officer and making the verification has the identity claimed and that the signature on the statement verified is the individual’s signature.
  d. When witnessing or attesting a signature, the notarial officer shall determine, from personal knowledge or satisfactory evidence of identity, that the individual appearing before the officer and signing the record has the identity claimed.

3. Methods of identifying individuals for whom a notarial act is being performed are:
   a. Personal knowledge – a notarial officer has personal knowledge of the identity of an individual appearing for a notarial act, if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty about the legal identity of the individual.
   b. Satisfactory evidence of identity – the notarial officer can identity the individual appearing for a notarial act by means of:
      i. A passport, driver’s license, or government-issued non-driver identification card that is current or expired not more than three (3) years before performance of the notarial act; or
      ii. Another form of government identification issued to the individual, which is current or expired not more than three (3) years before performance of the notarial act, contains the signature or a photograph of the individual, and is satisfactory to the notarial officer

A notarial officer may require an individual appearing for a notarial act to provide additional information or identification credentials necessary to assure the notarial officer of the identity of the individual.
 
4. A Rhode Island notarial officer may refuse to perform a notarial act if:
   a. The notarial officer is not satisfied that the individual executing the record is competent or has the capacity to execute the record; or
   b. The notarial officer is not satisfied that the individual’s signature is knowingly and voluntarily made.

A notarial officer cannot refuse to perform a notarial act if refusal is prohibited by any other Maine law.

5. The official stamp of a Rhode Island Notary Public must:
   a. Include the Notary Public’s name, the words “Notary Public,” jurisdiction, and other information required by the rules of the commissioning agency; and
   b. Be capable of being copied together with the record to which it is affixed or attached, or with which it is logically associated.

 
Notarial officers who are members of the Rhode Island General Assembly may notarize a record without use of a stamp on the General Assembly floor, during open session.
 
6. A Rhode Island Notary Public wishing to notarize electronically may select one or more tamper-evident technologies for such purpose. A Notary Public cannot be required to electronically notarize with a technology that the Notary has not selected.
 
7. Before performing his or her initial electronic notarial act, a Notary Public must notify the Office of the Secretary of State that he or she will be notarizing electronically, and identify the technology he or she has chosen to use. If the Secretary’s Office has established standards for approval of technology, the Notary’s chosen technology must conform to the standards. If the technology conforms to the standards, the Secretary’s Office shall approve its use.

8. Prohibited acts, most of which appear in Rhode Island’s Executive Order on Notary Public Standards of Conduct, have been codifed by HB 7502 Sub A and include the following.
   a. Acting solely under a commission as a Rhode Island Notary Public, a Notary:
       i. May not assist persons in drafting legal records, give legal advice, or otherwise practice law;
       ii. May not act as an immigration consultant or an expert on immigration matters;
       iii. May not represent a person in a judicial or administrative proceeding relating to immigration
       iv. to the United States, United States citizenship, or related matters;
       v. May not receive compensation for performing any of the activities listed above;
       vi. May not engage in false or deceptive advertising.
       vii. May not use the term “notario” or “notario publico” unless the Notary Public is also an attorney licensed to practice law in Rhode Island.
       viii. May not withhold access to or possession of an original record provided by a person seeking performance of a notarial act, except as otherwise allowed by law.
       ix. May not advertise or represent that the Notary Public may assist persons in drafting legal records, give legal advice, or otherwise practice law. If a notary public who is not an attorney licensed to  practice law in this state in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media, and the Internet, the notary public shall include the following statement, or an alternate statement authorized or required by the commissioning agency, in the advertisement or representation, prominently and in each language used in the advertisement or representation: "I am not an attorney licensed to practice law in this state. I am not licensed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities." If the form of advertisement or representation is not broadcast media, print media, or the Internet and does not permit inclusion of the statement required by this subsection because of size, it must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.
   b. In addition, a notary public, other than an attorney licensed to practice law in this state, may not  advertise or represent that the notary public may assist persons in drafting legal records, give legal advice, or otherwise practice law. If a notary public who is not an attorney licensed to practice law in this state in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media, and the Internet, the notary public shall include the following statement, or an alternate statement authorized or required by the commissioning agency, in the advertisement or representation, prominently and in each language used in the advertisement or representation: "I am not an attorney licensed to practice law in this state. I am not licensed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities." If the form of advertisement or representation is not broadcast media, print media, or the Internet and does not permit inclusion of the statement required by this subsection because of size, it must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed.

9. Provisions concerning Notary Public commission qualifications and appointment are as follows.
   a. To qualify for a commission as a Rhode Island Notary Public, an applicant must:
       i. Be at least eighteen (18) years of age;
       ii. Be a citizen or permanent legal resident of the United States;
       iii. Be a resident of or have a place of employment or practice in this state;
       iv. Be able to read and write English;
       v. Not be disqualified to receive a commission under § 42-30.1-16; and
       vi. Demonstrate sufficient knowledge of the powers and duties pursuant to the requirements of Rhode Island’s Notary Public laws (Title 42, Chapter 30.1, RULONA).
   b. Members in good standing of the Rhode Island Bar Association, and Rhode Island certified public accountants, regardless of residence, may continue under the newly revised Notary laws to be appointed a Notary Public upon application and presentment of a certified copy of their certificate of admission to the Bar or certificate of public accountancy.

   c. Every state senator, state representative, member of a city or town council, chief, deputy, and assistant clerk of   any state court, clerks of the board of canvassers and workers' compensation court, municipal clerks and the board of canvassers registrar are eligible to be appointed as a Notary Public following election, appointment or hiring, as applicable. They must make application and present reasonable evidence of office or employment. They will retain appointment throughout their uninterrupted duration and term of office, appointment or employment. These individuals are not required to pay an application fee but must complete a Notary Public oath of office. If they are reappointed or continue in office, they need not take a new Notary Public oath of office.  (Under previous law, these individuals needed only to file a certificate of engagement with the Secretary of State in order to exercise notarial powers.)
   d. Each state and local policy department chief of police may identify, in writing, two police officers to be commissioned as Notaries Public.
   e. Under RULONA, Rhode Island Notary Public applicants must execute an oath of office in order to be commissioned.

   f. Upon full compliance with the requirements for qualification and application, the Governor will issue an applicant a Rhode Island Notary Public commission for a four-year term.
   g. A Notary Public whose commission expires may, for 30 days, continue to officiate on their expired commission. (They must stop officiating on their expired commission immediately upon reappointment under a new commission term, or upon expiration of the 30 days.)

10. Under the RULONA, the Governor may deny, refuse to renew, revoke or suspend a Notary Public; or condition commissioning of an individual as a Notary Public, specified reasons.
   a. Reasons are:

       i. any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a notary public, including without limitation:
        • Failure to comply with the provisions of RULONA;
        • A fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission as a notary public submitted to the commissioning officer and/or agency;
        • A conviction of the applicant or notary public of any crime which involves fraud, dishonesty, or deceit; provided that in determining whether to deny, refuse to renew, revoke, suspend or condition the commission, the commissioning officer shall consider such factors as the seriousness of the crime; whether the crime relates directly to the training and skills needed for the commission of a notary public; how much time has elapsed since the crime was committed; and the applicant's actions and conduct since the crime was committed;
        • A finding against, or admission of liability by, the applicant or notary public in any legal proceeding or disciplinary action based on the applicant's or notary public's fraud, dishonesty, or deceit;
        • Use of false or misleading advertising or representation by the notary public representing that the notary public has a duty, right, or privilege that the notary public does not have;

        • Denial, refusal to renew, revocation, suspension, or conditioning of a notary public commission in another state; or
        • Termination or revocation of a certificate of admission to the Rhode Island bar or a certificate of public accountancy.  
   b. If the commissioning officer denies, refuses to renew, revokes, suspends, or imposes conditions on a commission as a notary public, the applicant or notary public is entitled to timely notice and hearing in accordance with chapter 35 of title 42.
   c. The authority of the commissioning officer to deny, refuse to renew, suspend, revoke, or impose conditions on a commission as a notary public does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law.

 
11. Additional provisions of HB 7502 Sub A include:
   a. An individual who is physically unable to sign a record may direct another individual who is not the notarial officer to sign the physically-unable individual’s name on the record. The notarial officer must insert “Signature affixed by (name of other individual) at the direction of (name of individual),” or words of similar meaning.
   b. The Office of the Secretary of State is required to maintain an electronic database of Rhode Island Notaries Public through which the active status (“authority to perform notarial acts) of a Notary Public commission may be verified, and that indicates whether a Notary Public has notified the Secretary of State that he/she will be performing electronic notarial acts.
 

SOUTH CAROLINA - HB 3243
Signed 05.16.2019; effective 08.01.2019
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Establishes a uniform filing fee of $10 to be collected by clerks of court, registers of deeds, or county treasurers; such fee to be for specified documents or actions including the filing or recording of a Notary Public commission.
 

SOUTH DAKOTA - HB 1272
Eff. 07.01.2019
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Authorizes remote online notarization in The Mount Rushmore State. Amends Chapter 18-1 (“Notaries Public”), South Dakota Codified Laws, by creating new sections and amending existing sections.

1. Creates these definitions:
  • “Acknowledgment” - a declaration by a person before a notarial officer that the person has signed a document for the purpose stated in the document and, if the document is signed by a representative who is:
  • An authorized officer, agent, partner, trustee, or other representative of a person other than a natural person;
  • A public officer, personal representative, guardian, or other representative in the capacity stated in a document;
  • An attorney-in-fact for a natural person; or
  • An authorized representative of another person in any other capacity, that the representative signed the document with proper authority and signed it as the act of the person identified in the document.
  • “Communication technology” - an electronic device or process that allows a notarial officer and a person not in the physical presence of the notarial officer to communicate with each other simultaneously by sight and sound.
  • “Notarial act” - an act that a notarial officer may perform under the laws of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument.
  • “Notarial officer” - a Notary Public or other person authorized to perform a notarial act.
  • “Verification on oath or affirmation” - a declaration, made by a person on oath or affirmation before a notarial officer, that a statement in a document is true.

2. Authorizes a notarial officer of South Dakota (includes a Notary Public) who is located in South Dakota to use communication technology to perform a notarial act executed on a document by a person appearing before the notarial officer but not in the officer’s physical presence, if the notarial officer:
  • Has personal knowledge of the identity of a person through dealings sufficient to provide reasonable certainty that the person has the identity being claimed;
  • Affixes the notarial officer's signature to the original tangible document executed by the person;
  • Indicates in the notarial certificate the remote location of the person executing the document;
  • Indicates in the notarial certificate that the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of communication technology; and
  • Is able reasonably to confirm that the document before the notarial officer is the same document in which the person made the statement or on which the person executed a signature.

3. Amends existing provisions to require all notarial officers to have and use a seal of office. The seal shall contain at least (a) the notarial officer’s name; (b) the works, South Dakota; (c) the words, Notary Public; and (d) a border surrounding the imprint. The seal may be a rubber stamp or a physical device capable of affixing to or embossing on a tangible (paper) document. The Secretary of State shall approve the type of seal.

4. Requires a notarial officer to indicate below the seal (where it is placed on a notarial certificate) the date on which the officer’s commission expires.

5. Clarifies language dealing with a Notary’s agency for a party to a transaction. A Notary Public with a direct or indirect personal interest, or who is a stockholder, officer, agent, attorney or employee of any other person or party to the transaction, may make any certificate, take any acknowledgment, administer any oath or do any other official acts as a Notary Public with the same legal force and effect as if he or she had no interest, provided the instrument or document does not show on its face that the Notary is a principal party to the instrument or document.

6. Provides that a notarial officer (not only a Notary Public) guilty of a Class 2 misdemeanor for affixing his or her official signature to any document when the parties to the transaction have not personally appeared, either “in-person” (physically) or by means of communication technology as provided in HB 1272.

7. Establishes that an acknowledgment of an instrument performed in the presence of a person making the acknowledgment must not be taken unless the (notarial) officer knows or has satisfactory evidence on oath or affirmation of a credible witness that the acknowledging person is the individual described in and who executed the instrument; or if executed by a corporation, that the acknowledging person is an officer of the corporation authorized to execute the instrument.

8. Makes various conforming amendments.
 

TENNESSEE - Emergency Administrative Rule, Online Notarization
Effective 04.15.2019; expires 10.12.2019
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Establishes emergency rules to implement Tennessee’s recently enacted Online Notary Public Act.

Online Notary Commission
1. Establishes that a Notary Public who has been properly commissioned to conduct online notarizations may complete authorized notarial acts by means of electronic interactive two-way audio and video communication that meets the requirements established in the rule. 
2. Clarifies that an online notarization may not be performed by an individual who has not been commissioned as an Online Notary Public by the Department of State.
3. Establishes that terms used in the rules have the same definitions as those in Tennessee Code Annotated §§8-16-302. 

4. Allows a person who has previously been commissioned as a Notary Public by a county legislative body, and who meets statutory qualifications for commissioning as a Tennessee Notary Public, to apply for a commission as an Online Notary Public. 
5. Specifies that an applicant must submit to the Department of State, Division of Business Services the prescribed application form including:
  • The applicant’s legal name as listed in the records of the county where the applicant is commissioned as a notary public;
  • The applicant’s physical address in this state, as is on record with the clerk of the county in which the notary is commissioned, which includes the street address, city, state, and zip code. The applicant may provide a post office box number for purposes of receiving mail from the Department of State, but must also provide a physical address;
  • A valid email address for the applicant;
  • A valid telephone number for the applicant;
  • The county in this state where the applicant was commissioned as a notary public;
  • The date the applicant was commissioned as a notary public;
  • The date the applicant’s commission is set to expire;
  • The name of the vendor and electronic technology or technologies to be used in attaching or logically associating an electronic notarial certificate, signature, and seal to an electronic document;
  • The name of the vendor and electronic technology or technologies to be used in conducting identity proofing and credential analysis;
  • A copy of the applicant’s unique electronic notarial certificate (otherwise known as a digital certificate) or other technology for rendering a notarized electronic document tamper-evident;
  • A copy of the applicant’s unique electronic seal, in a file format acceptable to the Department (the name on the Online Notary Public seal must match the name as stated on the application and under which the applicant will be commissioned and will perform all notarial acts);
  • A copy of any necessary instructions or techniques supplied by a vendor that allow the online notary public’s [unique] electronic notarial certificate and seal to be read and authenticated;
  • A copy of any necessary instructions or techniques supplied by a vendor that allow the online notary public to conduct identity proofing and credential analysis;
  • An explanation of the methods and/or technology by which the online notary public will maintain and store the secure electronic records of all electronic documents notarized by the online notary public in accordance with Rule 1360-07-03-.03(8);
  • A certification confirming that the applicant will comply with the following standards prescribed by the Secretary of State; and
  • An application fee of $75.00.
6. Provides that Online Notary Public applications may be submitted online to the Department of State via the Department’s online portal at sos.tn.gov.
7. Requires the Secretary of State to issue an Online Notary Public commission to a qualified applicant who meets the eligibility requirements stated in the administrative rules, has submitted a properly completed and executed application and has submitted the required application fee. 
8. Further requires the Secretary of State to issue Online Notary Public identification numbers, to be provided to all principals for whom the Online Notary performs and notarial act and to be used for reference in all communications between the Online Notary and the Department of State.
9. Establishes that an Online Notary Public commission will terminate on the same date on which the county Notary Public commission terminates, unless the county Notary Public commission is extended AND the Online Notary Public submits an application for renewal that is approved. 
10. Provides that renewal applications for Online Notary Public shall be filed in the same manner (to the Secretary of State) and using the same form as if filing the initial Online Notary commission application.  Requires an Online Notary renewal application to be received by the Secretary of State no later than the expiration date of the Online Notary’s current commission. Establishes that eligibility for renewal of an Online Notary commission shall be determined by the same standards as for an initial Online Notary commission, and that a determination of eligibility for renewal is not bound by prior determinations of eligibility.
11. Provides that an Online Notary Public may change his or her Online Notary Public commissioned name by notifying the Secretary of State using the prescribed form. Requires that the notification include a copy of a court order or other document verifying the name change, as well as updated copies of the Online Notary’s [unique] electronic notarial certificate, electronic signature and electronic seal that show the updated name. Requires an Online Notary Public to first ensure that he or she has appropriately executed a name change with respect to his or her traditional Notary Public commission in the county in which it was issued, before updating the Online Notary Public commissioned name.
12. Establishes that an Online Notary Public who changes his or her address such that the Online Notary no longer qualifies for either a traditional Notary Public commission or an Online Notary Public commission has vacated the office of Online Notary Public and must surrender the Online Notary commission to the Secretary of State.
13. Requires the Secretary of State to terminate the commission of any Online Notary Public whom the Secretary determines has not complied with Tennessee Code Annotated Title 8, Chapter 16 or related administrative rules.

Performance of Online Notarial Acts
NOTE:  The rule establishes “unique electronic notarial certificate” to mean the Online Notary Public’s digital certificate (a technological means of creating an electronic signature).  The rule differentiates “unique electronic notarial certificate” from “electronic notarial certificate” (the notary’s official certificate/statement on the notarized document).
1. Allows an Online Notary Public to perform authorized online notarial acts relating to electronic documents only if the principal personally appears before the Online Notary at the time of the notarization; such personal appearance may be by means of an electronic two-way audio and video communication.
2. Requires an Online Notary Public at the time of performing an online notarial act using electronic interactive two-way audio and video communications to be physically located within Tennessee, without regard to whether the principal is physically located in Tennessee at the time of the online notarization.
3. Charges an Online Notary Public with requiring a principal to demonstrate, to the satisfaction of the Online Notary, that the principal is not under duress and is not otherwise being coerced to complete the transaction.  Authorizes an Online Notary Public to refuse to perform a notarial act when the Online Notary Public has reasonable grounds to believe that the principal is acting under coercion or undue influence.
4. Requires an Online Notary Public to verify the identity of a principal at the time that the signature is taken by means of two-way video and audio conference technology, and allows the principal’s identity to be verified by:
  • The Online Notary Public’s personal knowledge of the principal; or by
  • Remote presentation by the principal of a non-military, government-issued credential, which is an identification card or other document issued by the United States government, any state government, or a passport issued by a foreign government that has been stamped by the United States immigration and naturalization service, and which is unexpired, contains the signature and a photograph of the principal, and which is capable of credential analysis in accordance with Rule 1360-07-03-.05.
  • Credential analysis of the credential provided by the principal as set forth in Rule 1360-07-03-.05; and
  • Identity proofing of the principal as set forth in Rule 1360-07-03-.05.
5. Prohibits an Online Notary Public from basing identification merely on familiarity with a principal’s electronic signature or an electronic verification process that authenticates the principal’s electronic signature, when the principal does not personally appear before the Online Notary Public.
6. Mandates that an Online Notary Public refuse to complete performance of a notarial act where:
  • The online notary public has reasonable grounds to believe that the principal is acting under coercion or undue influence;
  • The online notary public is unable to verify the identity of the principal using the means and the standards identified in these rules;
  • The online notary public becomes aware that the security of the two-way audio visual transmission is not secure;
  • The signature of the principal cannot be attached to the electronic document; or
  • The online notary public’s [unique] electronic notarial certificate and seal cannot be attached to the electronic document using an electronic technology which renders any subsequent change or modification to the document evident.
7. Requires an Online Notary Public to complete and attach, to all written notarial acts, an electronic notarial certificate that identifies the principal, the date of notarization, the state and county in which the notarization was performed, that the notarial act was an online notarization, and the type of notarial act performed.
8. Requires an Online Notary Public to sign an electronic notarial certificate by affixing or logically associating his or her unique electronic notarial certificate, unique electronic signature, and electronic seal in a manner capable of independent verification and that renders (makes) any subsequent change or modification to the electronic document, evident.
9. Mandates that the electronic notarial certificate for an online notarization must contain:
  • a notation that the notarization is an online notarization. Allows the Online Notary to satisfy this mandate by affixing his/her [electronic] seal to the electronic notarial certificate;
  • a statement that the principal “personally appeared before me by audio-video communication” or “personally appeared by audio-video communication” or “before me appeared by audio-video communication.”

Online Notary Public’s Electronic Signature, Seal
1. Requires an Online Notary Public to use the same unique electronic signature and unique electronic seal for all online notarial acts performed by the Online Notary.
2. Mandates that the Online Notary Public’s unique electronic notarial certificate, electronic signature and electronic seal must remain within the Online Notary’s exclusive control (including control by means of a password) at all times, and shall be used only for the purpose of performing online notarial acts.
3. Requires that the name on the Online Notary Public seal must match the name, as stated on the application, under which the Online Notary Public is commissioned and performs all notarial acts.
4. Requires an Online Notary Public to use an electronic seal that substantially conforms to the following design:  a circular seal with the Online Notary Public’s name as it appears on the commission printed at the top, the county of election printed at the bottom, the words “State of Tennessee Notary Public” or “Tennessee Notary Public” printed in the center, and the words “Online Notary Public” printed below, followed by the Online Notary Public’s identification number. Requires the electronic seal to also be accompanied by a statement of the date upon which the Online Notary Public’s commission expires. Provides a sample seal format.
5. Mandates the Online Notary Public’s use of technology from a third-party provider who has provided the Online Notary Public with evidence of its ability to provide an electronic technology standard that utilizes Public Key Infrastructure (PKI) technology from a X.509-compliant, PKI service provider.
6. Requires the Online Notary Public to provide any necessary instruction or techniques supplied by a vendor that allow the Online Notary’s [unique] electronic notarial certificate and seal to be read and authenticated.
7. Establishes that the Online Notary Public shall notify the Department of State of any new of additional technology or signature and/or seal if at any time the Online Notary adopts a new or additional technology or vendor with which to perform online notarial acts. Requires an Online Notary to also provide any additional information that may be requested by the Department of State.
8. Mandates that an Online Notary Public who replaces or changes a [unique] electronic notarial certificate or electronic seal during the Online Notary Public’s commission term shall provide an updated copy of the [unique] electronic notarial certificate or electronic seal to the Secretary of State prior to conducting any notarial acts using the updated [unique] electronic notarial certificate or electronic seal.

Online Notarization – Allowable Fee
1. Authorizes an Online Notary Public, or the Online Notary Public’s employer, to charge a fee not exceeding $25 for performing each online notarization.

Standards for Online Notarization and Related Technologies
2. Mandates that identity proofing and credential analysis (procedures for positively identifying the principal in an online notarization) must be performed by a third party who has provided evidence to the Online Notary Public that the third party can satisfy Tennessee’s statutory requirements.
3. Defines a credential as a non-military identification card or other document issued by the United States government or any state government; or a passport issued by a foreign government that has been stamped by the United States Immigration and Naturalization Service. 
4. Establishes that a valid credential for purposes of identifying a principal in an online notarization must be unexpired and contain the photograph and signature of the principal. 
5. Defines credential analysis as the process by which the validity of a non-military government-issued identification credential is verified, and that is performed utilizing public and proprietary data sources to verify the credential presented by the principal.

6. Establishes that credential analysis shall, at a minimum:
  • Use automated processes to aid the online notary public in verifying the identity of a principal;
  • Ensure that the credential passes an authenticity test, consistent with sound commercial practices that:
   a. Use appropriate technologies to confirm the integrity of visual, physical or cryptographic security features;
   b. Use appropriate technologies to confirm that the credential is not fraudulent or inappropriately modified;
   c. Use reasonable efforts to utilize information held or published by the issuing source or authoritative source(s), as made generally available for commercial purposes, to confirm the validity of personal details and credential details; and,
   d. Provide output of the authenticity test to the online notary public; and
  • Enable the online notary public to visually compare the following for consistency:  the information and photo presented on the credential itself and the principal as viewed by the online notary public in real time through audio-visual transmission.
7. Defines identity proofing as the process by which the identity of an individual is affirmed by a third party through review of public and proprietary data sources, and establishes that identify proofing is performed through dynamic knowledge-based authentication (KBA) meeting the following requirements:
  • The principal must answer a quiz consisting of a minimum of five (5) questions related to the principal’s personal history or identity, formulated from public and proprietary data sources;
  • Each question must have a minimum of five (5) possible answer choices;
  • At least 80% of questions must be answered correctly;
  • All questions must be answered within two (2) minutes;

  • If the principal fails in his or her first attempt, the principal may retake the quiz one time within 24 hours;
  • During the second attempt, a minimum of 60% of the prior questions must be replaced; and
  • If the principal fails in his or her second attempt, the principal is not permitted to retry with the same online notary public for a period of 24 hours.
8. Requires a principal who must exit the [identity proofing] workflow to restart the identity proofing and credential analysis from the beginning and meet the requirements stated in the rule.
9. Requires an online notarization system used to perform online notarial acts by means of two-way audio-video communication to:
  • Provide for continuous, synchronous audio-visual feeds;
  • Provide sufficient video resolution and audio clarity to enable the online notary public and the principal to see and speak with each other simultaneously through live, real time transmission;
  • Provide sufficient captured image resolution for credential analysis to be performed in accordance with these rules;
  • Include a means of authentication that reasonably ensures only authorized parties have access to the audio video communication;
  • Provide some manner of ensuring that the electronic record presented for online notarization is the same record electronically signed by the principal;
  • Be capable of securely creating and storing or transmitting securely to be stored an electronic recording of the audio-video communication, keeping confidential the questions asked as part of any identity proofing quiz and the means and methods used to generate the credential analysis output; and
  • Provide reasonable security measures to prevent unauthorized access to:
   a. The live transmission of the audio-video communication;
   b. A recording of the audio-video communication;
   c. The verification methods and credentials used to verify the identity of the principal; and
   d. The electronic documents presented for online notarization.

Records of Online Notarial Acts
1. Requires an Online Notary Public, or his/her properly designated custodian or repository, to keep a secure electronic record of all electronic documents notarized by the Online Notary. Requires that the secure electronic record of each online notarial act must contain all the following:
  • The date and time of the notarization;
  • The type of notarial act;
  • The type, the title, or a description of the electronic document or proceeding;
  • The printed name and address of each principal involved in the transaction or proceeding;
  • Evidence of the identity of each principal involved in the transaction or proceeding in the form of:
   a. A statement that the principal(s) is personally known to the online notary public;
or both
   b. A notation of the type of identification document provided to the online notary public for each principal; and
   c. A notation that the principal(s) completed identity proofing and credential analysis procedures described by Rule 1360-07-03-.05 and both were satisfactory to verify the identity of the principal(s);
  • A recording of any video and audio conference that is the basis for satisfactory evidence of identity and a notation of the type of identification presented as evidence;
and
  • The fee, if any, charged for the notarization.
2. Establishes that an Online Notary Public should refrain from recording, or obscure from the recording, any identification number assigned to the principal by a governmental agency or by the United States, and any other number(s) that could be used to identify the principal.
3. Requires that records of online notarizations must be retained, in a safe and secure manner, for at least five years after the date of the notarization, transaction or proceeding. Requires an Online Notary Public to retain a backup of the electronic records for the same period. Mandates that the original and backup records shall be protected from unauthorized use. Permits an Online Notary Public to elect to store such records with a custodian or repository and that such records may be stored separately from [the Notary’s] journal if the corresponding journal entry cross-references the place of storage and described the manner of records storage.

Security Considerations
1. Prohibits an Online Notary Public from disclosing any access information used to affix the Online Notary Public’s [unique] electronic notarial certificate, signature and seal, except when requested by the Secretary of State, law enforcement, the courts or pursuant to an agreement between the Online Notary Public and an electronic documentation preparation and transmission vendor (requires such an agreement to have in place reasonable precautions to prevent the unauthorized release of access information).
2. Establishes that an Online Notary Public should take specified actions regarding the security of online transactions and related personally identifying information or government-issued identification numbers. 
3. Charges an Online Notary Public with taking reasonable steps to ensure that the two-way video and audio communication used is encrypted during transmission and secure from unauthorized interception.

Online Notary Commission Responsibilities
1. Requires an Online Notary Public to notify the Secretary of State of any change in address within 15 days of the date of the change, using the prescribed form.
2. Requires an Online Notary Public who elects at any time during a commission term to use a new vendor or technology or technologies for attaching or logically associating a [unique] electronic notarial certificate, signature and seal to an electronic document, or for conducting identity proofing and credential analysis, to provide specified information on the new vendor, technology or technologies to the Secretary of State. Requires the information to be provided to the Secretary of State prior to the Online Notary Public conducting any notarial acts using the new vendor or technology or technologies.

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TENNESSEE - SB 1758
Most provisions effective 07.01.2019; effective immediately for administrative and rulemaking purposes.
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Creates the Online Notary Public Act (“the Act”) in Tennessee Code Annotated, Title 8, Chapter 16 and provides amended language for Tennessee Code Annotated (T.C.A.) Section 66-22-101, Section 8-16-112 and Section 8 16 114.

1. Rewrites T.C.A. Section 66-22-101 to address the concepts of original signature and personal appearance.
  • Provides that a “person’s original signature” includes an electronic signature as defined in Section 8 16-302 (of the newly enacted Online Notary Public Act).
  • Establishes that, subject to requirements of law, a person may personally appear before an Online Notary Public by appearing physically before the Online Notary; or appearing by means of an interactive two-way audio and video communication that meets the requirements of rules promulgated by the Secretary of State.
  • Requires an officer taking an acknowledgment to indicate in the notarial certificate (“acknowledgment form”) whether the principal personally appeared by means of an interactive two-way audio video communication pursuant to (amended) T.C.A. Section 66-22-101, Subdivision (c)(2). Such appearance and the notarial certificate shall be deemed compliant if the acknowledging officer amends the acknowledgment forms provided in T.C.A. Sections 6-22-107, 6-22-108 and 66-22-114 to read “personally appeared before me by audio-video communication” or “personally appeared by audio-video communication” or “before me appear by audio-video communication” rather than “personally appeared before me” or “personally appeared” or “before me appear.”

2. Amends T.C.A. Section 8-16-112 and 8-16-114 by adding new language recognizing electronic Notary Public signatures and electronic Notary Public seals.
  • Provides that the requirement of a Notary Public’s signature in ink or by the Notary’s hand and a seal is satisfied if an electronic signature or digitized image of a wet signature of the person authorized to perform that act, and all other information required to be included, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature.
  • Provides that the requirement of an official seal of office or stamp imprinted in color ink is satisfied by an electronically transmitted document, if the document legibly reproduces the required elements of the seal.  A physical or electronic image of a stamp, impression or seal need not accompany an electronic signature.

3. Provides these essential definitions in the Online Notary Public Act:
  • "Appear” or "appearance" or "personally appear” means:
    a. Appearing physically before a Notary Public; or
    b. Appearing before an Online Notary Public by means of an interactive two-way audio and video communication that meets the online notarization requirements under rules promulgated by the Secretary of State.
  • "Credential analysis" ― a process or service operating as outlined in rules promulgated by the Secretary of State, through which a third person affirms the validity of a government-issued identification credential through review of public and proprietary data sources.
  • "Electronic" ― relating to technology having electrical, digital, magnetic, wireless, optical,  electromagnetic, or similar capabilities.
  • "Electronic document" ― information that is created, generated, sent, communicated, received, or stored by electronic means.
  • "Electronic notarial certificate" ― the portion of a notarized electronic document that is completed by an Online Notary Public and contains the following:
    a. The Online Notary Public's electronic signature, electronic seal, title, and commission expiration date;
    b. Other information required by the Secretary of State in rule concerning the date and place of the online notarization; and

    c. The facts attested to or certified by the Online Notary Public in the particular notarization.
  • "Electronic seal" ― information within a notarized electronic document that confirms the Online Notary Public's name, jurisdiction, identifying number, and commission expiration date and generally corresponds to information in notary seals used on paper documents.
  • "Electronic signature" ― an electronic sound, symbol, or process attached to or logically associated with an electronic document and executed or adopted by a person with the intent to sign the electronic document.
  • "ldentity proofing" ― a process or service operating according to criteria as outlined in rules promulgated by the Secretary of State, through which a third person affirms the identity of an individual through review of personal information in public and proprietary data sources.
  • "Notarial act" ― the performance by an Online Notary Public of a function authorized under Section 8 16 112.
  • "Online notarization" ― a notarial act performed by means of two-way video and audio conference technology that meets the standards adopted under T.C.A. Section 8-16-305.
  • “Online Notary Public” ― a Notary Public who is a commissioned Notary Public and has been additionally commissioned to perform online notarizations as outlined in the Act.
  • "Principal" means an individual:
    a. Whose electronic signature is notarized in an online notarization; or
    b. Who appears before and provides an acknowledgement of or takes an oath or affirmation from the Online Notary Public but not in the capacity of a witness for the online notarization.
  • "Remote presentation" ― transmission to the Online Notary Public through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the Online Notary Public to:
    a. ldentify the individual seeking the Online Notary Public's services;
    b. Perform credential analysis.

4. Requires the Secretary of State to promulgate rules to implement the Act and facilitate online notarizations. 
  • Further requires the Secretary of State by rule to promulgate standards for online notarization, including credential analysis and identity proofing. Authorizes the Secretary of State to confer with other appropriate agencies on matters relating to equipment, security and technological aspects of the online notarization standards.

5. Establishes qualifications and application requirements for an Online Notary Public commission.
  • Provides that a commissioned Tennessee Notary Public may apply to the Secretary of State for an Online Notary Public commission, pursuant to the Act.
  • Establishes that a person qualifies to be commissioned as an Online Notary Public by:
(1) Satisfying the qualification requirements for appointment as a Notary Public under T.C.A. Title 8, Chapter 16, Part 1; (2) submitting to the Secretary of State an application prescribed by the Secretary; and (3) satisfying the Secretary that the person/applicant is qualified.
  • Specifies the information that must be included on and with an application for Online Notary Public commission, including any other information deemed necessary by the Secretary of State as well as a certification that the applicant will comply with the Secretary’s online notarization standards. Allows the Secretary to charge a fee for an Online Notary Public commission application, such amount not to exceed administration costs.

6. Prescribes the authority, powers and responsibilities of an Online Notary Public and requirements for performance of online notarial acts.
  • Provides that an Online Notary Public is a Notary Public for purposes of T.C.A. Title 8, Chapter 16; is subject-to and must be appointed and commissioned as a Notary Public under Chapter 16; may perform notarial acts as provided in Part 1 of Chapter 16; and may perform an online notarization without regard to the physical location of the principal, if the Notary is physically located in Tennessee for performance of the online notarization.
  • Charges the Online Notary Public with taking reasonable steps to ensure that two-way video and audio communication used in an online notarization is secure from unauthorized interception.
  • Restricts an Online Notary Public’s use of his or her electronic signature to performance of online notarizations only.
  • Requires an Online Notary Public to attach his or her electronic signature and electronic seal to an electronic notarial certificate in a manner that is capable of independent verification and that makes evident any subsequent change or modification to the notarization electronic document.
  • Establishes that in performing an online notarization, an Online Notary Public shall verify the identity of a person creating an electronic signature—at the time the electronic signature is taken—by use of two-way video and audio conference technology that meets the requirements of the Act and rules promulgated by the Secretary of State.  Further provides that identity may be verified by: 
    a. The Online Notary Public's personal knowledge of the person creating the electronic signature, or
    b. Remote presentation by the person creating the electronic signature of a government-issued identification credential, including a passport or driver’s license, that contains the signature and a photograph of the person; credential analysis of said credential; and identity proofing of the person creating the electronic signature.

  • Requires that an electronic notarial certificate for an online notarization must include a notation that the notarization is an online notarization.
  • Allows an Online Notary Public or the Notary’s employer to charge a fee not to exceed $25 each for performing an online notarization in addition to any other fees authorized under T.C.A. Title 8, Chapter 16.

7. Establishes requirements related to security of an Online Notary Public’s electronic signature and seal and addresses wrongful possession of an Online Notary Public’s related software or hardware.
  • Requires an Online Notary Public to take reasonable steps to ensure that any registered device to create his or her electronic signature is current and has not been revoked or terminated by the device’s issuing or registering authority.
  • Requires the Online Notary Public to keep his or her electronic record, electronic signature and electronic seal secure and under the Notary’s exclusive control.  Provides that exclusive control includes access protection through use of passwords or codes under the Notary’s control. 
  • Prohibits an Online Notary Public from allowing another person to use the Notary’s electronic record, electronic signature or electronic seal.
  • Requires an Online Notary Public to immediately notify an appropriate law enforcement agency and the Secretary of State of the theft or vandalism of the Online Notary Public’s electronic record, electronic signature, or electronic seal. Requires an Online Notary Public to immediately notify the Secretary of State of the loss, or use by another person, of the Notary’s electronic record, electronic signature or electronic seal.
  • Establishes that it is a Class D felony for a person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software or hardware enabling an Online Notary Public to affix an official electronic signature or electronic seal.

8. Establishes online notarization recordkeeping requirements.
  • Requires an Online Notary Public to keep a secure electronic record of online notarizations he or she performs.
  • Allows the secure electronic record to be kept in one or more electronic journals.
  • Requires every record of an online notarization to contain:  (1) the date and time of the notarization;  (2) the type of notarial act; (3) the type, the title, or a description of the electronic document or proceeding; (4) the printed name and address of each principal involved in the transaction or proceeding; (5) evidence of identity of each principal involved in the transaction or proceeding (by personal knowledge, an identification document provided to the Online Notary Public, an identity verification if applicable, or the printed name and address of each credible witness swearing to or affirming the person's identity and a description of the credible witness’ type of identification document if not personally known); (6) a recording of any video and audio conference that is the basis for satisfactory evidence of identity and a notation of the type of identification presented as evidence; and (7) the fee, if any, charged for the notarization.
  • Requires an Online Notary Public to take reasonable steps to: (1) ensure the integrity, security, and authenticity of online notarizations; (2) maintain a backup for the electronic record; and (3) protect the backup record from unauthorized use.

  • Requires the electronic record to be maintained for at least five (5) years after the date of the transaction or proceeding requiring notarization. Allows the Online Notary Public, a guardian or personal representative of an incapacitated or deceased Notary to arrange by agreement the use of a repository that will maintain the records in compliance with any rules established by the Secretary of State.

9. Establishes that the validity of a Tennessee Online Notary Public’s online notarization, performed in accordance with T.C.A. Title 8, Chapter 16, shall be determined by applying the laws of Tennessee.

10. Provides for the termination of an Online Notary Public’s commission and required action.
  • Requires the Secretary of State to terminate an Online Notary Public’s commission for failure to comply with T.C.A. Title 8, Chapter 16.
  • Mandates that an Online Notary Public whose commission terminates shall destroy the coding, disk, certificate, card, software or password that enables electronic affixation of the Notary’s official electronic signature or seal.  The Online Notary Public must certify compliance with this requirement in accordance with the Secretary of State’s rules. A former Online Notary Public who is recommissioned as an Online Notary with the same electronic signature and seal within 3 months after the former commission terminated is not required to destroy these items.
 
 

TEXAS - HB 4181
Signed and immediately effective 06.14.2019
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Amends Section 602.002, Texas Government Code, to expand the list of individuals statutorily authorized to administer an oath and give a certificate of such fact to include the Secretary of the Senate or the Chief Clerk of the House of Representatives.
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TEXAS - SB 2128
Signed 06.10.2019; effective 09.01.2019
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Provides for recordation of a paper or tangible copy of an electronic record (document) in the Lone Star State.

Amends current Property Code law addressing recordation of a paper record, by establishing that a tangible copy of an electronic record (document) that has been declared a true and correct copy of the electronic record by a Notary Public, or other officer authorized to take an acknowledgment or proof of a written instrument under Section 121.001, Civil Practices and Remedies Code, may be recorded and may serve as notice of such document.

Adds a new Section 12.0013 to Texas’s Property Code, “Recordation of Paper or Tangible Copy of Electronic Record,” as follows.

Definitions
1. "Document" – information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
2. "Electronic," "electronic record," and "electronic signature" – have the meanings assigned by Section 322.002, Texas Business & Commerce Code.

Requirements, Recordation of a Tangible Copy of an Electronic Record
1. Requires a Texas county clerk to record a paper or tangible copy of an electronic record that meets all other state law requirements for recordation into Texas property records, if the paper or tangible copy of the electronic record:
  (a) Contains an image of an electronic signature or signatures that are acknowledged, sworn to with a jurat, or proved according to law; and
  (b) Has been declared by a Notary Public or other officer who may take an acknowledgment or proof under Section 121.001, Civil Practice and Remedies Code, to be a true and correct copy of the electronic record as provided by Subsection (d).
2. Establishes that a document that is a paper or tangible copy of an electronic record and is printed and declared to be true and correct copy as set forth in SB 2128 satisfies any requirement of law that, as a condition of recording, the document must:
  (a) Be an original or be in writing;
  (b) Be signed or contain an original signature, if the document contains an image of an electronic signature of the person required to sign the document; and
  (c) Be notarized, acknowledged, verified, witnessed, made under oath, sworn to with a jurat, or proved according to law, if the document contains an image of an electronic signature of the person authorized to perform that act and all other information required to be included.
3. Provides that a Notary Public or other officer who may take an acknowledgment or proof under Texas law may declare that a paper or tangible copy of an electronic record is a true and correct copy of an electronic record by executing and attaching an official seal to a tangible paper declaration under penalty of perjury; and affixing or attaching the declaration to the printed paper or tangible copy of an electronic record.
4. Provides the form (wording) of such declaration (“Declaration of Authenticity”).
5. Establishes that the recorder’s index entry for a paper document that is a tangible copy of an electronic record declared to be a true and correct copy pursuant to Texas Property Code must contain the names of the grantors and grantees.
 

UTAH - HB 52
Signed 3-25-19; effective 11-1-19
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Revises Utah’s Notaries Public Reform Act to authorize remote online notarization in the Beehive State. 

Definitions
1. Adds new, key terms to the Act and amends existing terms; new language is underlined.
  a. "Before me" – means that an individual appears in the presence of the Notary.
  b. "Electronic recording" – the audio and video recording, described in Utah Code §46-1-3.6 Subsection (3), of a remote notarization.
  c. "Electronic seal" – an electronic version of the seal described in Utah Code §46-1-16, that conforms with rules made under Utah Code §46-1-3.7 Subsection (1)(d), that a Remote Notary may attach to a notarial certificate to complete a remote notarization.
  d. "In the presence of the Notary" – means that an individual:
   i. is physically present with the Notary in close enough proximity to see and hear the Notary; or
   ii. communicates with a Remote Notary by means of an electronic device or process that:
      • allows the individual and Remote Notary to communicate with one another simultaneously by sight and sound; and complies with rules made under Utah Code §46 1-3.7.
  e. "Notarial certificate" –the affidavit described in Utah Code §46-1-6.5 that is:
    i. a part of or attached to a notarized document; and
    ii. completed by the Notary and bears the Notary's signature and official seal.
  f. "Notary" – an individual commissioned to perform notarial acts under this chapter. "Notary" includes a Remote Notary.

  g. "Official seal" – the seal described in Utah Code Section 46-1-16 that a Notary may attach to a notarial certificate to complete a notarization.  "Official seal" includes an electronic seal.
  h. "Remote notarization" – a notarial act performed by a Remote Notary in accordance with this chapter for an individual who is not in the physical presence of the Remote Notary at the time the Remote Notary performs the notarial act.
  i. "Remote Notary" – a notary that holds an active Remote Notary certification under Utah Code § 46-1-3.5.
  j. "Satisfactory evidence of identity" means:
    i. For both an in-person and remote notarization, identification of an individual based on:
     • subject to Utah Code §46-1-2, Subsection (19)(b), valid personal identification with the individual's photograph, signature, and physical description that the United States government, any state within the United States, or a foreign government issues;
     • subject to Utah Code §46-1-2, Subsection (19)(b), a valid passport that any nation issues; or
     • the oath or affirmation of a credible person who is personally known to the Notary and who personally knows the individual; and
    • for a remote notarization only, a third party's affirmation of an individual's identity in accordance with rules made under Utah Code §46-1-3.7 by means of:
   > dynamic knowledge-based authentication, which may include requiring the individual to answer questions about the individual's personal information obtained from public or proprietary data sources; or
    > analysis of the individual's biometric data, which may include facial recognition, voiceprint analysis, or fingerprint analysis.
  k. "Satisfactory evidence of identity" for a remote notarization requires the identification described in Utah Code §46-1-2, Subsection (19)(a)(i)(A) or passport described in Utah Code §46-1-2, Subsection  (19)(a)(i)(B) to be verified through public or proprietary data sources in accordance with rules made under Utah Code §46-1-3.7.
  l. "Signature witnessing" – a notarial act in which an individual:
    i. appears in the presence of the Notary and presents a document;
    ii. provides the Notary satisfactory evidence of the individual's identity, or is personally known to the Notary; and
    iii. signs the document in the presence of the Notary.

Qualifications, Notary Public and Remote Notary Public
1. Amends statutory qualifications for a Utah Notary Public commission, by adding the requirement of a criminal background check performed by the Department of Human Resource Management, the results of which will be reported to the Lieutenant Governor.

2. Clarifies that a Utah Notary Public may not perform a notarial act for another individual who is outside the state, unless the Notary is also a Remote Notary performing a remote notarization in accordance with Utah’s Notaries Public Reform act

3. Establishes Remote Notary qualifications.
  a. Allows a commissioned Utah Notary Public, or an individual applying for a Utah Notary Public commission, to apply to the Lieutenant Governor for a Remote Notary certification.
  b. Provides that the Lieutenant Governor shall certify an individual to perform remote notarizations as a Remote Notary if the individual:
    i. complies with Utah Code §45-1-3 to become a commissioned Notary;
    ii. submits to the Lieutenant Governor (on the form created by the Lieutenant Governor) a correctly completed application for a Remote Notary certification; and
    iii. pays to the Lieutenant Governor the application fee described in Subsection (4).

4. Specifies certain information on and requirements for the Remote Notary application.

5. Allows the Lieutenant Governor to establish and charge a Remote Notary application fee.

6. Clarifies that a Utah Notary Public commission is not effective until the Lieutenant Governor approves the applicant’s Notary oath of office and bond filed with the Lieutenant Governor.

7. Clarifies that, in addition to requirements stated in existing law, a Utah Remote Notary certification is not effective until:
  a. the Notary named in the Remote Notary certification files evidence, with the Lieutenant Governor, that the Notary has obtained $5000 of additional bond coverage (in addition to the $5000 bond coverage required for his or her Notary Public commission) executed by a licensed surety, that begins on the individual’s Remote Notary certification effective date and ends on the Remote Notary’s (regular) Notary Public commission expiration date;
  b. the licensed surety conditions payment of bond funds to any person upon the Remote Notary’s misconduct while acting in the scope of the Remote Notary’s commission (certification); and
  c. the Lieutenant Governor approves the additional bond coverage obtained for the Remote Notary certification.

Official Seal, Official Signature
1. Requires a Notary Public to keep an official seal, and requires that each official seal used for an in-person notarization shall be in purple ink.

2. Updates multiple statutory references to “seal” and “notarial seal” by amending to “official seal.”  Requires every rendering of the official seal on a notarial certificate to be sharp, legible, and photographically reproducible, and be near the Notary’s official signature.

3. Clarifies existing law by emphatically prohibiting a Notary Public’s use of the Notary’s title or official seal to endorse or promote any product, service, content or other offering. 

4. Clarifies that a person may not provide an official seal to an individual claiming to be a Utah Notary, unless the individual presents a copy of the individual’s notarial commission, attached to a notarized declaration.  Makes technical amendments to the statutory form of the notarized declaration.  Clarifies that is a class B misdemeanor for a person to provide, create, obtain or possess an official seal in violation of Utah Code §46 1 17.

5. Requires a Remote Notary to keep an electronic seal and electronic signature.  Requires each official seal used for a remote notarization to be rendered in black.  Establishes that a Notary’s official seal, electronic seal or electronic signature may not be used by any other person, except that a Remote Notary may allow a person that provides the Remote Notary an electronic seal under Utah Code §45-1-17 to act as guardian over the electronic seal.

6. Prohibits an individual from creating, obtaining or possessing an electronic seal unless the individual is a Remote Notary, but clarifies that it is not a violation of this prohibition if a person is a business that creates, obtains or possesses an electronic seal for the sole purpose of providing the electronic seal to a certified Remote Notary

7. Requires a person that is acting as guardian of a Remote Notary’s electronic seal to store the seal in a secure manner that prevents any person from:
  a. Accessing the seal, other than the guardian and the Remote Notary named on the seal; or
  b. Using the seal to perform a notarization, other than the Remote Notary named on the seal.

8. Authorizes a guardian of a Remote Notary’s electronic seal to access and use the seal of the Remote Notary:
  a. for a purpose solely related to completing, in accordance with Utah’s Notaries Public Reform Act, the notarization by the Notary for which the seal is accessed or used;
  b. for a purpose solely related to complying with the requirements to obtain, store, and protect the seal under Utah’s Notaries Public Reform Act; or
  c. if required under court order.

9. Requires a Notary who resigns or whose commission expires or is revoked to destroy the Notary’s official seal and certificate. Requires a Remote Notary who resigns or whose commission expires or is revoked to destroy any coding, disk, certificate, card, software, or password that enables the Remote Notary to affix the Remote Notary’s electronic signature or electronic seal to a notarial certificate; the former Remote Notary must certify to the Lieutenant Governor, in writing and within 10 days after the day on which the Notary resigns or the Notary’s commission expires or is revoked, that the former Remote Notary has complied with this requirement.

10. Establishes that it is a class B misdemeanor for a person who, without authorization, knowingly obtains, conceals, damages, or destroys the certificate, disk, coding, card, program, software, or hardware enabling a Remote Notary to affix an official electronic signature or electronic seal to an electronic record.

11. Requires a Remote Notary to immediately notify the Lieutenant Governor if the Notary becomes aware that the Notary’s electronic signature, electronic seal, electronic journal or information from the journal has been lost, stolen or used unlawfully.

Remote Notarial Acts
1. Establishes that a certified Utah Remote Notary may perform a remote notarization only if the Remote Notary is physically located in Utah.

2. Clarifies that the statutory prohibition against a Notary Public performing a notarial act for another individual who is outside of Utah does not pertain to a remote notarization performed in accordance with Utah’s Notaries Public Reform Act

3. Requires a Utah Remote Notary performing a remote notarization, for an individual not personally known, to establish at the time of the notarization satisfactory evidence of identity of the individual by:
  a. communicating with the individual using an electronic device or process that:
    i. allows the individual and Remote Notary to communicate with one another simultaneously by sight and sound; and
    ii. complies with rules made under Section 46-1-3.7; and
  b. requiring the individual to transmit to the Remote Notary an image of a form of identification described in Utah Code §46-1-2, Subsection (17)(a)(i)(A) or a passport described in Utah Code §46-1-2 Subsection (17)(a)(i)(B) that is of sufficient quality for the Remote Notary to establish satisfactory evidence of identity.

4. Requires a Remote Notary performing a remote notarization to attach the Remote Notary’s electronic signature and electronic seal to an electronic notarial certificate in a manner that makes evident any subsequent change or modification to the notarial certificate or any electronic record, that is part of the notarization, to which the notarial certificate is attached.

5. Requires a Utah Remote Notary to ensure that a notarial certificate for a remote notarization performed by the Remote Notary includes a statement that the notarization was performed remotely.

6. Requires a Utah Remote Notary to create an audio and video recording of the performance of each remote notarization, and to store the recording in accordance with Utah Code §46-1-14 and §46-1-15.

7. Requires a Utah Remote Notary to take reasonable steps, consistent with industry standards, to ensure that any non-public data transmitted or stored in connection with a remote notarization performed by the Notary is secure from unauthorized interception or disclosure.

8. Provides that, notwithstanding any other provision of law, a remote notarization lawfully performed under Utah’s Notaries Public Reform Act satisfies any provision of state law that requires an individual to personally appear before, or be in the presence of, a Notary at the time the Notary performs a notarial act.

9. Authorizes the Director of Elections in the Office of the Lieutenant Governor to make administrative rules regarding standards for and types of:
  a. electronic software and hardware that a Remote Notary may use to:
    i. perform a remote notarization; and
    ii. keep an electronic journal under Section 46-1-13;
  b. public and proprietary data sources that a Remote Notary may use to establish satisfactory evidence of identity under Subsection 46-1-2(17)(b);
  c. dynamic knowledge-based authentication or biometric data analysis that a Remote Notary may use to establish satisfactory evidence of identity under Subsection 46-1-2(17)(a)(ii); and
  d. electronic seals a Remote Notary may use to complete an electronic notarial certificate.

10. Requires the Director of Elections, when making such administrative rules, to review and consider standards recommended by one or more national organizations that address the governance or operation of notaries.

Maximum Fees for Notarial Acts
1. Increases the maximum fees a Utah Notary Public may charge for the following notarial acts that are NOT performed remotely:
  a. For an acknowledgment -- $10 per signature.
  b. For a certified copy -- $10 per page certified.
  c. For a jurat -- $10 per signature.
  d. For an oath or affirmation without a signature -- $10 per person.
  e. For each signature witnessing --  $10.

2. Establishes a maximum fee of $25 that a Remote Notary may charge for an acknowledgment, certified copy, jurat, oath or affirmation without a signature or signature witnessing that a Remote Notary performs as part of a remote notarization.

3. Increases the fee a Notary Public may charge per individual for each set of forms relating to a change of that individual’s immigration status, from no more than $5 to no more than $10. Clarifies that this fee limitation applies regardless of whether the Notary is acting as a Notary, but does not apply to a licensed attorney who is also a Notary rendering professional services regarding immigration matters.

Secure Electronic Journal Required for Remote Notarizations; Recording of Remote Notarizations
1. Requires a Remote Notary to keep a secure electronic journal of each remote notarization the Notary performs.

2. Requires a Remote Notary to record the following information in the secure electronic journal for each notarial act (a Notary Public performing notarial acts that are NOT remote notarizations “may” record this information in a journal):
  a. the date and time of day of the notarial act;
  b. the type of notarial act;
  c. the type title, or a description of the document, electronic record, or proceeding that is the subject of the notarial act;

  d. the signature and printed name and address of each individual for whom a notarial act is performed;
  e. the evidence of identity of each individual for whom a notarial act is performed, in the form of:
    i. a statement that the person is personally known to the Notary;
    ii. a description of the identification document and the identification document's issuing agency, serial or identification number, and date of issuance or expiration;
    iii. the signature and printed name and address of a credible witness swearing or affirming to the person's identity; or
    iv. if used for a remote notarization, a description of the dynamic knowledge-based authentication or biometric data analysis that was used to provide satisfactory evidence of identity under Utah Code §46-1-2, Subsection (17)(a)(ii); and
f. the fee, if any, the Notary charged for the notarial act.

3. Allows a Notary to record in the journal a description of the circumstances under which the Notary refused to perform a complete notarial act.

4. Requires a Remote Notary to include with the journal a copy of the electronic recording of the remote notarization. Establishes that the electronic recording is not a public record and is not a part of the Notary’s journal.

5. Requires a Remote Notary to maintain or ensure that the Notary’s designated custodian under Utah Code §45-1-15, Subsection (2)(b)(i) maintains for a period of five years the journal information for each remote notarization performed, and the electronic recording of each remote notarization performed.

6. Requires a Remote Notary to:
  a. ensure that the Remote Notary’s electronic journal and electronic recording of each remote notarization performed is a secure and authentic record of the notarizations that the Notary performs;
  b. maintain a backup electronic journal and electronic recording; and
  c. protect the backup electronic journal and electronic recording from unauthorized access or use.

7. Allows a Remote Notary to designate the following as a custodian of the Remote Notary’s electronic journal and electronic recording:
  a. the Remote Notary’s employer that employs the Remote Notary to perform notarizations (except that such employer may not require the Notary to surrender the journal or electronic recording upon termination of the Notary’s employment); or
  b. an electronic repository that grants the Remote Notary sole access to the electronic journal and electronic recording, and that does not allow the person who operates the electronic repository or any other person to access the journal, information in the journal, or the electronic recording for any purpose, except that an electronic repository may access an electronic journal, information contained in an electronic journal, and the electronic recording:
    i. for a purpose solely related to completing, in accordance with Utah’s Notaries Public Reform Act, the notarization for which the journal or information in the journal is accessed;
    ii. for a purpose solely related to complying with the requirements to retain and store records under Utah’s Notaries Public Reform Act; or
    iii. if required under a court order.

Miscellaneous
1. Makes various technical and conforming changes.

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UTAH - HB 408
Eff. 05.14.2019
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Addresses an employer’s liability, under certain circumstances, for an employee Notary’s misconduct.

1. Provides that an employer of a Notary Public is also liable for damages proximately caused by the Notary’s misconduct in performing a notarization if:
  • the Notary Public was acting within the course and scope of the Notary’s employment; and
  • the employer had knowledge of, consented to, or permitted the misconduct.
 

VERMONT - HB 104
Signed 05.30.2019; effective 07.01.2019
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Amends Vermont Statutes by making this state’s Notaries subject to regulation by the Office of Professional Regulation, within the Office of the Secretary of State. Clarifies the regulatory role the Office of Professional Regulation will have over Notaries. Addresses matters relative to town clerks and their authority to perform certain acknowledgments and oaths. Revises not-yet-effective provisions of Vermont’s Revised Uniform Law on Notarial Acts.  (The RULONA was enacted in 2018 and is effective July 1, 2019.)

1. Revises RULONA’s definition of “notarial officer” to mean an individual authorized to perform a notarial act under authority and within the jurisdiction of another state; under authority and within the jurisdiction of a federally recognized Indian tribe; under authority of federal law; under authority and within the jurisdiction of a foreign state or constituent unit of the foreign state; or under authority of a multinational or international governmental organization

2. Revises RULONA provisions concerning judiciary- and law enforcement-related employees.
  • Judiciary-related employees. Clarifies which persons named in subdivision (2)(A) of RULONA Section 5305 are considered to be judiciary-related employees. These persons must apply for a Notary Public commission in order to exercise notarial powers. They are exempted from paying a fee for issuance of a commission. Their Notary commission is not considered to be a license (a defined term; see below). 
  • Law enforcement-related employees. Clarifies which persons named in subdivision (2)(B) of RULONA Section 5305 are considered to be law enforcement-related employees.  When these persons are acting within the scope of their official duties, they are commissioned as a Vermont Notary Public as a matter of law, exempt from all requirements of the RULONA including the requirement to pay a fee for issuance of a commission. Their notarial acts identifying that they are a person who is exempt under this section of RULONA shall establish as a matter of law that they are commissioned as a Notary Public for the purpose of acting within the scope of their official duties. 

3. Clarifies that 26 V.S.A. §5305(a)(3) defines “official duties.”

4. Includes Vermont’s Notaries Public among the boards or professions under (“attached to”) Vermont’s Office of Professional Regulation (OPR), within the Office of the Secretary of State. Defines “license” to include any certification, registration, permit, commission or other official authorization to undertake a regulated activity.  Defines “licensee” to include any person to whom a license has been issued by a board or the Director of OPR.

5. Increases possible civil penalties against a person practicing a regulated profession without authority (from not more than $1000 to not more than $5000); or against an employer permitting such unauthorized practice.

6. Expands the types of conduct that constitute unprofessional conduct, by establishing that unprofessional conduct includes sexual harassment; or exploitation of a patient, client, or consumer; or doing so to a coworker in a manner that threatens the health, safety or welfare of patients, clients, or consumers; failing to maintain professional boundaries; or violating a patient, client or consumer’s reasonable expectation of privacy.

7. Increases the maximum possible administrative penalty following a hearing and finding of unprofessional conduct, from $1000 to $5000 for each unprofessional conduct violation.

8. Requires OPR to “warn” (notice) and conduct an open meeting including advisors, program staff and interested members of the public at least once per year for each profession with 500 or fewer active licensees; and at least twice per year for each profession with more than 500 active licensees (Under RULONA, the Secretary of State must appoint two Notaries Public to serve as advisors in matters relating to notarial acts.)

9. Requires town clerks to be commissioned as a Notary Public under Vermont law (26 V.S.A. Chapter 103) in order to take acknowledgments of deeds and other instruments within their respective counties. Clarifies that town clerks need not be commissioned as a Notary Public in order to administer oaths within their respective counties. Establishes that a town clerk and his or her assistants may perform notarial acts as Notaries Public throughout the town clerk’s county, provided they comply with all requirements of the RULONA (except paying a fee for issuance of a commission); their notarial acts shall be considered to be within the scope of their official duties.

10. Allows each town clerk to designate from among his or her staff at least one Notary Public to be available to perform notarial acts for the public in the town clerk’s office during normal business hours, free of charge. Requires each such designee to be commissioned as a Vermont Notary Public, and exempts them from the Notary Public application fee.

11. Exempts justices of the peace from paying a fee for issuance of a Notary Public commission.

12. Establishes that nothing in RULONA’s Section 5305 is intended to prohibit prosecution of a person for unauthorized practice of a regulated profession under Vermont law.

13. Clarifies that RULONA’s Section 5361, Notarial Acts in This State; Authority to Perform, pertains to a notarial act as defined in RULONA’s Section 5304(7)(A).
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VERMONT - HB 526
Most provisions effective 7-1-19; see effective date comments at end of bill summary
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Enacts Vermont’s Uniform Law on Notarial Acts (“the Act”; term used throughout this summary) by adding Chapter 103 to Title 26 of Vermont Statutes Annotated.  Amends provisions of Vermont’s Property Code (Title 27), and repeals provisions in other Code Titles.

1. Creates the following definitions:
  • “Acknowledgment” ― a declaration by an individual before a Notary Public that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record.
  • “Certificate” or “notarial certificate” ― the part of, or attachment to, a notarized document that is completed by a Notary Public, bears the required information set forth in Section 5367 of the Act, and states the facts attested to or certified by the Notary Public in a particular notarization.
  • “Commission term” ― the two-year period commencing on February 1 and continuing through January 31 of the second year following the commencement of the term.
  • “Electronic” ― relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

  • “Electronic signature” ― an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record.
  • “In a representative capacity” ― acting as:
    a. an authorized officer, agent, partner, trustee, or other representative for a person other than an individual;
    b. a public officer, personal representative, guardian, administrator, executor, trustee, or other representative, in the capacity stated in a record;
    c. an agent or attorney-in-fact for a principal; or
    d. an authorized representative of another in any other capacity.
  • “Notarial act” ― an act, whether performed with respect to a tangible or an electronic record, that a Notary Public may perform under the law of this State. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, attesting a signature, and noting a protest of a negotiable instrument.  “Notarial act” does not include a corporate officer attesting to another corporate officer’s signature in the ordinary course of the corporation’s business. (Nothing in the Act shall be construed to require the use of a Notary Public to witness a signature that is allowed by law to be witnessed by an individual who is not a Notary Public.)
  • “Notarial officer” ― a Notary Public or other individual authorized to perform a notarial act.
  • “Notary Public” ― an individual commissioned to perform a notarial act by the Office.
  • “Office” ― the Office of Professional Regulation within the Office of the Secretary of State.
  • “Official stamp” ― a physical image affixed to or embossed on a tangible record or an electronic process, seal, or image or electronic information attached to or logically associated with an electronic record.
  • “Person” ― an individual, corporation, business trust, statutory trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  • “Record” ― information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  • “Sign” ― means with present intent to authenticate or adopt a record:
    a. to execute or adopt a tangible symbol; or
    b. to attach to or logically associate with the record an electronic symbol, sound, or process.
  • “Signature” ― a tangible symbol or an electronic signature that evidences the signing of a record.
  • “Stamping device” ― a physical device capable of affixing to or embossing on a tangible record an official stamp; or an electronic device or process capable of attaching to or logically associating with an electronic record an official stamp.
  • “State” ― a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  • “Verification on oath or affirmation” ― a declaration, made by an individual on oath or affirmation before a Notary Public, that a statement in a record is true.

2. Establishes provisions dealing with commissioning and related requirements.
  • Provides qualifications for obtaining a Notary Public commission:  be at least 18 years of age; be a citizen or permanent legal resident of the United States; be a resident of or have a place of employment or practice in Vermont; not be disqualified to receive a commission under Section 5342 of the Act; pass a Secretary of State-approved basic examination based on the statutes, rules and ethics of Vermont notarial law.
  • Requires applicants to comply with, and provide information required by, rules adopted by the Office (Professional Regulation within the Office of the Secretary of State), and pay the application fee.
  • Requires an applicant to execute an oath of office and submit it to the Office before a Notary Public commission may be issued.

  • Provides that the Office shall issue a Notary Public commission to applicants who have complied with commissioning requirements.  Clarifies that the commission authorizes the Notary Public to perform notarial acts, and does not provide the Notary Public with any immunity or benefit conferred by Vermont law on public officials or employees.
  • Sets a commission issuance fee of $15.
  • Provides grounds for the Office to deny, refuse to renew, revoke, suspend or impose a condition on a Notary Public’s commission.  Also provides for the applicant’s or Notary Public’s entitlement to timely notice and hearing in accordance with Vermont law.
  • Requires the Office to biennially provide a commission renewal notice to each Notary Public.
  • Requires a Notary Public seeking commission renewal to complete, during the preceding two-year period, continuing education approved by the Office.  Requires the Office, with the advice of advisor appointees, to establish by rule the guidelines and criteria for continuing education credit.

3. Provides requirements for an official stamp and the stamping device.
  • Requires, for notarial acts regarding a tangible record, that a Notary Public use an official stamp affixed to or embossed on the notarial certificate; or alternately, the Notary Public shall clearly print or type his or her name and commission number on the certificate.
  • For notarial acts regarding an electronic record, provides a Notary Public the option of using an official stamp attached to or logically associated with the certificate IF the certificate is signed and dated by the Notary Public; identifies the jurisdiction where the notarial act was performed; and contains the Notary Public’s title of office.
  • Requires a Notary Public’s official stamp to include the Notary Public’s name, jurisdiction and other information required by the Office; and be capable of being copied together with the record to which it is affixed to attached, or with which it is logically associated.
  • Establishes a Notary Public’s responsibility for the security of his or her stamping device, and prohibits the Notary Public from allowing another individual to use the device to perform a notarial act.
  • Requires a Notary Public or his/her personal representative or guardian to promptly notify the Office upon discovering that the Notary Public’s stamping device or lost or stolen.

4. Authorizes a Notary Public to perform notarial acts in Vermont, establishes authorized notarial acts regarding tangible and electronic records, and sets forth requirements and procedures for performing them.
  • Authorizes a commissioned Notary Public of Vermont to perform, in Vermont, a notarial act authorized by the Act or other law of Vermont.
  • Authorizes a Notary Public to perform notarial acts on tangible and electronic records. 
  • Establishes that the signature and title of an individual performing a notarial act in Vermont are prima facie evidence that the signature is genuine and that the individual holds the designated title.
  • Provides the requirements for performance of the following notarial acts: taking an acknowledgment; taking a verification of a statement on oath or affirmation; attesting a signature; making or noting a protest.
  • Requires that if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the Notary Public.
  • Provides that personal appearance is satisfied if the Notary Public and the person executing the signature are in the same physical place; or the Notary Public and the person are communicating through a secure communication link using protocols and standards prescribed in rules adopted by the Secretary of State pursuant to the rulemaking authority granted by the Act.
  • Establishes that a Notary Public has personal knowledge of the identity of an individual appearing before the Notary if the individual is personally known to the Notary through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  • Establishes that a Notary Public has satisfactory evidence of the identity of an individual appearing before the Notary if the Notary can identify the individual (1) by means of a passport, driver’s license, or government issued non-driver identification card which is current or expired not more than three years before performance of the notarial act; or another form of government identification issued to an individual, which is current or expired not more than three years before performance of the notarial act, contains the signature or a photograph of the individual, and is satisfactory to the officer; or (2) by a verification on oath or affirmation of a credible witness personally appearing before the officer and known to the officer or whom the officer can identify on the basis of a passport, driver’s license, or government issued non-driver identification card, which is current or expired not more than three years before performance of the notarial act.
  • Allows a Notary Public to require an individual to provide additional information or identification credentials necessary to assure the Notary of the individual’s identity.
  • Authorizes an individual who is physically unable to sign a record to direct an individual other than the Notary Public to sign the individual’s name on the record, and requires the Notary Public to insert “Signature affixed by (name of other individual) at the direction of (name of individual)” or words of similar import.
  • Requires a notarial act to be evidenced by a certificate, which must:  (a) be executed contemporaneously with performance of the notarial act; (b) be signed and dated by the Notary Public who must sign in the same manner as on file with the Office; (c) identify the jurisdiction [venue] in which the notarial act is performed; (d) contain the title of office of the Notary Public; and (e) indicate the date of expiration of the Notary’s commission.  
  • Establishes that a notarial certificate is sufficient if it meets the requirements of the Act’s Section 5367, subsections (a) and (b) and:  it is in a short form provided in Section 5368 of the Act; it is in a form otherwise permitted by Vermont law; it is in a form permitted by law applicable to the jurisdiction in which the notarial act was performed; or it sets forth the actions of the Notary Public and the actions are sufficient to meet the requirements of the notarial act as provided in Sections 5362-5364 of the Act, or other Vermont law.
  • Prohibits a Notary Public from affixing to the certificate, or logically associating with the certificate, his or her signature until the notarial act has been performed. 
  • Requires, for notarial acts regarding a tangible record, that a Notary Public use an official stamp affixed to or embossed on the notarial certificate; or alternately, the Notary Public shall clearly print or type his or her name and commission number on the certificate.
  • For notarial acts regarding an electronic record, provides a Notary Public the option of using an official stamp attached to or logically associated with the certificate IF the certificate is signed and dated by the Notary Public; identifies the jurisdiction where the notarial act was performed; and contains the Notary Public’s title of office.
  • Requires a notarial certificate to be part of, or securely attached to, a tangible record. Requires a certificate to be affixed to, or logically associated with, an electronic record. Requires a Notary Public to conform to any standards established by the Office for attaching, affixing or logically associating the certificate with the record.
  • Provides that by executing a notarial certificate, a Notary Public certifies that the Notary has complied with the requirements and made the determinations specified in the Act’s Section 5363-5365.
  • Authorizes a Notary Public to refuse to perform a notarial act if he or she is not satisfied that: (a) the individual executing the record is competent or has the capacity to execute the record; or (b) the individual’s signature is knowingly and voluntarily made. Allows a Notary Public to refuse to perform a notarial act unless refusal is prohibited by law other than the Act.

5. Authorizes the Office to adopt rules which may prescribe the manner of performing notarial acts regarding tangible and electronic records (electronic notarization and remote online notarization).
  • Establishes that neither electronic notarization nor remote online notarization shall be allowed in Vermont until the Secretary of State has adopted rules and prescribed standards.
  • Prohibits adopted rules regarding electronic notarization and remote online notarization from being technology-specific. 
  • Requires the Office, in adopting, amending or repealing such rules consistent with the Act, to consider the most recent standards promulgated by national bodies such as the National Association of Secretaries of State; standards, practices and customs of other jurisdictions with substantially similar enactments; and the views of government officials and entities and other interested persons.

6. Specifies prohibited acts by a person and Notary Public, and sanctions.
  • Prohibits a Notary Public from performing a notarial act regarding a record to which the Notary Public or the Notary Public’s spouse is a party, or in which either the Notary or spouse has a direct beneficial interest. Provides that a notarial act performed in violation of this prohibition is voidable.
  • Prohibits a person from:
    a. Performing or attempting to perform a notarial act, or holding him- or herself out as being able to do so in Vermont, without first being commissioned.
    b. Using in connection with the person’s name any letters, words, or insignia indicating or implying that the person is a Notary Public unless commissioned in accordance with this chapter.
    c. Performing or attempting to perform a notarial act while his or her commission has been revoked or suspended
    d. Withholding access to or possession of an original record provided by a person seeking performance of a notarial act, except as otherwise allowed by law.
  • Subjects persons who violate the prohibitions set forth in the Act’s Sec. 5345 to a fine of not more than $5,000 or imprisonment for not more than one year, or both. 
  • Provides that prosecution may occur upon complaint of the Attorney General or a State’s Attorney and shall not act as a bar to civil or administrative proceedings involving the same conduct.
  • Establishes that a Notary Public commission shall not authorize an individual to assist a person in drafting legal records, give legal advice, or otherwise practice law.

7. Addresses the validity of a notarial act.
  • Establishes that, except as provided in the Act’s Section 5372(b), a Notary Public’s failure to perform a duty or meet a requirement specified in the Act shall not impair the marketability of title or invalidate a notarial act or a certification evidencing the notarial act.
  • Provides that an acknowledgment containing an inaccurate or expired Notary Public commission expiration date shall not be invalidated if it can be established that on the date the acknowledgment was taken, the Notary Public’s commission was active. Further provides that the validity of a notarial act performed under the Act shall not prevent an aggrieved person from pursuing invalidation of the record or transaction that is the subject of the notarial act, or from seeking remedies based on either Vermont law other than the Act, or law of the United States.
  • Allows a Notary Public whose original notarial act is defective to cure the act (“execute a writing correcting any defect”), under oath and before a different Notary Public. Upon its recording, the corrective document will correct any deficiency and ratify the original written evidence of acknowledgment as of the date the acknowledgment was originally taken.
  • Provides for the recordability of a document conveying an interest in real property and, despite any provision of law to the contrary, establishes that such documents if recorded are sufficient for record notice to third parties, notwithstanding a Notary Public’s failure to perform any duty or meet any requirement specified in the Act.

  • Clarifies that the Act’s provisions addressing the validity of a notarial act do not validate a purported notarial act performed by an individual who has no authority to perform notarial acts.

8. Authorizes electronic notarization in Vermont and requires a Notary Public to notify the Office of the intent to electronically notarize, but also establishes that neither electronic notarization nor remote online notarization shall be allowed in Vermont until the Secretary of State has adopted rules and prescribed standards.  (Also see Item 5 above regarding rules adopted by the Office.)
  • Allows a Notary Public (note this permission does not apply to notarial officers) to select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. A chosen technology must be approved by the Office pursuant to rules established by the Office.
  • Prohibits a person from requiring a Notary Public to perform an electronic notarial act with a technology the Notary Public has not selected.
  • Requires a Notary Public, before performing his or her initial notarial act on an electronic record (electronically notarize), to notify the Office that the Notary will be performing electronic notarizations. The Notary Public must also identify the technology he or she intends to use (from the Office’s list of approved technologies). 
  • Provides that if the Office has established, by rule, standards for approval of technology, the technology shall conform to the standards. If the technology conforms to the standards, the Office shall approve the use of the technology.

9. Establishes mandatory duties of the Secretary of State’s Office (“the Office”) and provides for other authorized activities
  • Requires the Office to provide general information to Notary Public commission applicants; administer commission issuance fees; explain appeal procedures to Notaries Public and applicants; explain complaint procedures to the public; and receive applications for commissioning, review applications, and grant and renew commissions when appropriate under the Act.
  • Requires the Secretary of State to appoint two Notaries Public to serve as advisors in matters relating to notarial acts.  Stipulates that one advisor shall be a licensed attorney selected from a list of at least three provided by the Vermont Bar Association. Advisors serve at the pleasure of the Secretary.
  • Provides that advisors shall be appointed for staggered five-year terms, and that one of the initial appointments shall be for less than a five-year term.
  • Requires each advisor-appointee to have at least three year of experience as a Notary Public during the period immediately preceding appointment by the Secretary, and to be actively commissioned in Vermont and remain in good standing during incumbency.
  • Requires the Office to seek the advice of advisor appointees in carrying out the provisions of the Act. 
  • Authorizes the Office, with the advice of advisor appointees, to adopt rules to implement the Act. Provides the scope of such rules, which includes (but is not limited to) the manner of performing notarial acts regarding tangible and electronic records; provisions to prevent fraud or mistake in the performance of notarial acts; and technology-neutral standards for remote online notarization.
  • Requires the Office to maintain an electronic database of Notaries Public that a person may use to verify the authority of a Notary Public, and that indicates whether a Notary Public has notified the Office that he or she will be performing electronic notarizations.

10. Establishes those persons (individuals) who, when “acting within the scope of their official duties” (defined), are exempt from all the requirements of the Act except as follows
  • applying for a commission as set forth in Section 5341(a), (b)(1)-(3), (c), (d) and (e); and
  • paying the commission issuance fee prescribed in Section 5324, unless specifically exempted from doing so by Section 5305, subsection (c). 

11. Additional provisions:
  • Addresses evidence of authenticity of notarial acts performed in Vermont (apostilles, certificates of authority).
  • Provides extensive language affirming cross-jurisdictional recognition of notarial acts.
  • Establishes the applicability of HB 526 to notarial acts performed on or after the Act’s effective date; and to Notaries Public performing notarial acts on and after the Act’s effective date. Provides that a Notary Public commission in effect on the Act’s effective shall continue until its expiration date. Requires a Notary Public who applies for a renewal commission on or after HB 526’s effective date to comply with the provisions of the Act.

  • Affirms the validity or effect of a notarial act performed prior to the Act’s effective date.
  • Repeals the following sections of Vermont statutes (Vermont Statutes Annotated):  24 V.S.A. Chapter 5, Subchapter 9 (Notaries Public); 27 V.S.A. Section 379 (conveyance of real estate; execution and acknowledgment; acknowledgment out of state); 32 V.S.A. §1403(b) (county clerk; Notaries Public without charge or fee); 32 V.S.A. §1436 (fee for certification of appointment as Notary Public); and 32 V.S.A. §1759 (Notaries Public fees).

12. Provides effective dates.
  • The Act is effective on July 1, 2019, except that:
    a. The bill section detailing effective dates took effect upon passage of HB 526;
    b. The Office of Professional Regulation was authorized to adopt rules in advance of assuming the Notary application processing and commissioning duties from Vermont’s assistant judges and county clerks;
    c. The examination requirement for new Notary Public applicants and the continuing education requirement for renewing Notary Public applicants (Sections 5341(b)(5) and 5343(b) of the Act) are effective February 1, 2021 and apply to applicants for the Notary Public commission terms that begin on that date.
 

WEST VIRGINIA - SB 199
Eff. 03.09.2019

Provides the Legislature’s approval of an administrative rule, filed by the Secretary of State, to repeal sections of West Virginia’s Code of State rules dealing with the surety bond, which is no longer statutorily required.  

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WEST VIRGINIA - SB 669
Eff. 06.07.2019
View this bill

Authorizes the Secretary of State to appoint “out-of-state commissioners,” who may take acknowledgments of deeds and other writings to be admitted for recording in West Virginia, whether the commissioner is within or in any place outside of West Virginia.  Authorizes commissioners to also administer oaths and take affidavits or depositions within West Virginia when such oaths, affidavits or depositions are for use in West Virginia.

1. Provides qualifications and application requirements for appointment as an out-of-state commissioner.
  • To qualify, a person must be currently commissioned as a West Virginia Notary Public.  Application for appointment as an out-of-state commissioner is made to the Secretary of State, in the form and manner prescribed by the Secretary.  Information that must be included in the application is specified, as are other application requirements such as the oath of office and $500 application fee.  (The application fee may be refunded in full or in part for commission denial due to a good-faith mistake by the applicant.)
  • Provides that the Secretary of State may deny, refuse to renew, revoke, suspend or impose a condition on the commission of an out-of-state commissioner for any act or omission that demonstrates the individual’s lack of honesty, integrity, competence or reliability to perform his or her duties, and states examples of such acts or omissions.

2. Establishes a 10-year term of office for out-of-state commissioners.

3. Clarifies that out-of-state commissioners (who are also commissioned West Virginia Notaries Public) are subject to “all requirements, duties, prohibitions, penalties, and procedures” set forth in West Virginia’s Revised Uniform Law on Notarial Acts.

4. The certificate of an out of state commissioner:
  • must be authenticated by his or her signature and official seal
  • shall reflect (in the venue) where the acknowledgment was taken

5. An out-of-state commissioner must have an official seal, specified to be a rubber stamp containing the words “Official Seal,” “Commissioner for West Virginia” and “My Commissioner Expires” with the date of commission expiration; the commissioner’s name exactly as written in his/her official signature; and the commissioner’s city and state of residence.  A stamped imprint of the seal and sample of the commissioner’s official signature must be filed with the Secretary of State.

6. Prohibits out-of-state commissioners from:
  • assisting persons in drafting legal records, giving legal advice, or otherwise practicing law;
  • acting as an immigration consultant or an expert on immigration matters; or
  • representing a person in a judicial proceeding relating to immigration to the United States, U.S. citizenship or related matters.

7. Clarifies that the above prohibited acts shall not be construed to prohibit the practice of law by a duly licensed attorney.

8. Authorizes the Secretary of State to propose rules to implement the new statutes created by SB 669.

9. Requires the Secretary of State to include all active out-of-state commissioners in its database of Notaries Public, and clearly distinguish commissioners from Notaries Public.

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