On November 5, 2020, Governor Whitmer signed into law four bills that passed the Michigan House and Senate overwhelmingly that continue the practices of remote notarization, remote witnessing and remote visitation that were first permitted under Executive Orders issued since April 8, 2020. To reduce exposure to COVID-19, the Executive Orders encouraged the use of remote, 2-way real-time, audiovisual technology for signing, notarizing and witnessing of legal documents and for remote visitation by guardians and guardians ad litem.
These remote practices were halted and the validity of all legal documents executed under the Executives Orders after April 30
th were called into question by an Order of the Michigan Supreme Court on October 2, 2020. The Order concluded that the Governor lacked authority to declare a state of emergency or a state of disaster under Michigan’s Emergency Management Act (EMA) after April 30, 2020 and ruled that the Emergency Powers of the Governor Act (EPGA) violated the Michigan Constitution. The Supreme Court effectively terminated the continued validity of Governor Whitmer’s Executive Orders issued under the EMA and the EPGA since the Legislature refused to continue her Executive Orders after April 30, 2020.
House Bills 6294, 6295, 6296, and 6297 (PA 246’20, PA 247’20, PA 248’20, and PA 249’20) were given immediate effect and amend the following Michigan laws: the probate code (Estates and Protected Individuals Code), the Uniform Electronic Transactions Act, the Uniform Real Property Electronic Recording Act, and Michigan Law on Notarial Acts. The bills are effective retroactively from April 30, 2020 through December 31, 2020. The bills:
- reinstate use of 2-way real-time, audiovisual technology for remotely executing, notarizing and witnessing legal documents, including wills, durable powers of attorney, patient advocate designations, funeral representative designations, appointments by parents of guardians for minors, and deeds, provided strict procedures are followed as outlined in the bills;
- define 2-way real-time audiovisual technology;
- permit a guardian or guardian ad litem to fulfill her duty to visit with an individual in person by using remote visitation instead of in-person visits;
- permit each State department to send and accept electronic records and electronic signatures to and from other persons;
- encourage governmental agencies and officials of the state to use or permit the use of electronic records and electronic signatures to transact business, process applications, and recognize the validity of legal instruments, and when a notarized signature is required by a law of this state, to use a notary public who performs notarial acts electronically under the new law;
- apply the law’s use of remote signatures to the Uniform Commercial Code during this time frame (with some exceptions);
- direct registers of deeds to accept for recording electronic documents, or if a county’s register of deeds does not have equipment to accept an electronic document, to accept for recording a tangible copy of an electronic document properly notarized under Michigan’s notary law, as amended to allow remote notarization;
- direct financial institutions to accept documents or electronic documents recorded by a register of deeds under the amended laws permitting remotely signed and notarized documents; and
- extend the validity of notary public commissions that expire between March 1, 2020 and December 31, 2020 until December 31, 2020.
What is 2-way real-time, audiovisual technology?
Remote execution, notarization, witnessing, and visitation must be performed using 2-way real-time, audiovisual technology which is defined as procedures that allow for direct, contemporaneous interaction and communication by sight and sound between the signatory and the witnesses, or the notary and an individual seeking a notary’s services and any witnesses to the notarial act.
Requirements for executing and witnessing documents with this technology must be met, including:
- the interaction must be recorded and preserved for at least 3 years;
- the signatory must affirmatively represent their presence in Michigan or, if physically outside the state, that certain factors apply showing relevance of the document to the state of Michigan;
- the signatory must affirmatively state what document is being signed;
- each title page and signature page must be shown to the witnesses;
- specific page numbering must be followed (page x of y);
- the act of signing the document must be captured sufficiently up close so the witnesses can observe the signing;
- the signatory or her designee must transmit the document within 72 hours after it’s signed and the witnesses must sign and return the signed copy, within 72 hours after receipt, back to the signatory by fax, mail or electronic means; and
- the document must be in writing and readable as text.
Notarization of documents include additional requirements for 2-way real-time, audiovisual technology, including:
- the interaction must be recorded and preserved for at least 10 years;
- if the person seeking notarial services, or any required witness, is not known by the notary, satisfactory evidence of their identity must be presented during the video conference;
- signatures must be capable of being affixed in a manner rendering any change or modification of the remote online notarial act to be tamper evident;
- the signed document must be transmitted to the notary on the same day it was signed; and
- once received with all necessary signatures, the notary must notarize the record and transmit it back to the individual seeking the notarial services.
Effective date of notarial act; use of counterparts is convenient.
The effective date of the notarial act is the date which the notary witnessed the signing of the document through the 2-way real-time, audiovisual technology. Documents may be signed in counterparts, using separate pages for each signature, unless the document prohibits the use of counterparts. Using counterparts is useful in that it allows remote signatures and notarization while also allowing original signature pages to be gathered and combined at a later date, resulting in a final document that includes all original signatures.
The validity of documents signed and notarized under the Executive Orders are preserved.
The new witnessing law includes a savings clause that protects the rights and interests of persons who relied in good faith and without actual notice that a document, signed on or after April 30, 2020 and before January 1, 2021, was not executed in accordance with the signing and witnessing requirements of the new law.
The new notary law includes a savings clause providing that notarizations performed, on or after April 30, 2020 and before January 1, 2021, using the outlined procedures in the law, as amended, are valid. The right and interests of a person who relied in good faith and without actual notice that the record was executed on or after April 30, 2020 and before January 1, 2021 but was not executed or notarized in accordance with this section are not impaired, challenged, or terminated on that basis alone.
If a recent document was executed, witnessed, or notarized pursuant to Executive Orders
2020-41, 2020-74, 2020-131, 2020-158, 2020-173, 2020-187, the savings clauses in the new bills protect the validity of such documents since the new witnessing and notarization law incorporates the same procedures required by the Executive Orders.
Compliance is presumed but a document’s validity can be challenged.
Compliance with the new law is presumed. A document can be challenged and the presumption of compliance with the new law may be overcome by the presentation of clear and convincing evidence that the signatory or a witness, or a notary or the individual seeking the notary public’s service, intentionally failed to comply with the requirements of the new law.
All good things come to an end: Will that be so here or will the Legislature extend?
The current bills validate remote, use of 2-way real-time, audiovisual technology, for the execution, witnessing, and notarization of legal documents signed on or after April 30, 2020 and before January 1, 2021. This means that unless the law changes, December 31, 2020 is the last day that these new procedures can be used.
The Executive Orders and new law related to remote signatures, witnessing and notarization are based upon the need for the continued signing of important legal documents during the COVID-19 pandemic in a way that reduces exposure to the virus. Given the reality and uncertainty of this health crisis, many people are trying to execute and update important legal documents, particularly estate planning documents. As the year comes to an end, the legislature may determine that the pandemic is continuing and that the public has a continued need for the protection that remote execution, witnessing and notarization of legal documents provide. In that case, the new law will most likely be extended. As with many laws, additional changes may be made as we learn new ways to streamline and improve the process.
Marlaine C. Teahan is a subcommittee member of a joint initiative of the Elder Law and Disability Rights and the Probate and Estate Planning Sections of the State Bar of Michigan that worked on a legislative solution to replace the Executive Orders on remote execution, witnessing and notarization of documents. The subcommittee (led by Howard Collens and Nathan Piwowarski), the represented Sections and their lobbyists, and other stakeholders were instrumental in the passage of the new bills. Representative Lightner, the bills’ sponsor, and the leadership in the Legislature recognized the importance of these issues and worked quickly with all stakeholders to respond to the developing crisis and pass these laws out of the Legislature for signature by the Governor. Marlaine can be reached at firstname.lastname@example.org or 517.377.0869.