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By: Kathleen Cusack
As stay-at-home orders increase in number, duration, and severity across the country, many businesses have moved to remote functions to avoid business interruption and limit in-person contact. Most states, though, require that notaries public acknowledge the signing of a document in person. Attorneys in many practice areas are routinely called upon to acknowledge documents. Even though attorneys providing services such as real estate closings or estate planning have been deemed in some states to be “essential” and are permitted to continue operations, they and their clients are understandably looking for alternatives to face-to-face meetings. One such alternative being considered is remote notarization, which utilizes audio-visual technology to see and communicate with a signor rather than being physically present with the signor. Currently, 23 states allow for remote notarization. Four other states have authorized plans for remote notarization in the future and ten states are considering legislation to allow for remote notarization. In addition, federal legislation regarding remote notarization was introduced on March 18, 2020, by Sen. Kevin Cramer (R, ND) in bill S.3533.
In response to COVID-19, several states that do not permit remote notarization are considering implementing temporary emergency measures to allow for it. Attorneys who plan to notarize documents remotely should take note of the language in their relevant insurance policies, including their errors and omissions (“E&O”) policy, to determine whether claims arising out of a document that was acknowledged remotely will be covered. Many E&O policies exclude from coverage claims that arise out of documents that were acknowledged when the signor was not present “in person”. Whether the term “in-person” will be interpreted to include signors that were present by audio-visual technology may depend on the insurance provider. Thus, for attorneys acknowledging documents remotely – even on a temporary basis – it is important to know whether their policy contains such exclusion and, if so, seek guidance on how the exclusion is being or has been interpreted.
You can review guidance for which states allow for remote notarization here. As stated herein, some of the states that do not currently allow for it are considering temporary emergency measures in direct response to COVID-19.
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