MSBA Requests Emergency Order Allowing Remote Notarization
Monday, March 30, 2020
March 25, 2020
Governor Janet Mills
State of Maine
1 State House Station
Augusta, ME 04333
Re: Request for Emergency Order Allowing Remote Notarization
Dear Governor Mills:
Thank you for your leadership and decisive actions to keep Mainers safe during these challenging times. The members of the Maine State Bar Association appreciate these efforts.
I write to you on behalf of the Association with regard to Maine’s in-person notarization requirements and the need for a waiver of these requirements in order to comply with necessary social distancing requirements in the wake of the COVID-19 virus. Currently, Maine law requires notaries to perform in-person acknowledgements of an individual’s signature, but in the current environment where individuals are working from home and advised to remain separate, in-person notarization may not be safe in many instances. Hence, our request for a waiver of the in-person notarization requirement, as described further below.
As we know you understand, attorneys and the courts are essential during this time of crisis. The legal issues of Maine citizens do not stop now that we are in a pandemic: wills and powers of attorney still must be executed, depositions held, and oaths taken. If notarization activities are curtailed, however, due to the need for social distancing, these vital activities are placed at risk, which could work an injustice on many Mainers. For this reason, the Maine State Bar Association urges you to consider implementing a temporary emergency order amending the requirements found in 4 M.R.S. §§ 1013, 1015 to allow for acknowledgments at a safe physical distance while still maintaining notarization integrity throughout the duration of the civil emergency proclaimed as of March 15, 2020.
As far as what such an order might look like, we carefully reviewed similar orders recently issued by Governors for the states of New Hampshire and Florida (copies attached), and we believe the language below – drawn from these other states – would accomplish this goal in a manner that best maintains the underlying purpose of notarization:
1. Notwithstanding the provisions of Title 4, chapter 22, notaries and other persons qualified to administer an oath in the State of Maine may swear a witness and acknowledge signatures remotely by audio-video communication technology from a location within the State of Maine, if the notary
a. Communicates simultaneously by sight and sound with the witness;
b. Positively identifies the witness; and
c. Creates, either directly or through an agent, an audio-video recording of the notarization and retains a copy of the recording for the duration of the term of the notarial office, including renewals of that term.
2. If a witness is not located within the State of Maine, a witness may consent to being put on oath via audio-video communication technology by a person qualified to administer an oath in the State of Maine, if:
a. the record subject to acknowledgement is (i) intended either for filing in or in relation to a matter before a court, government entity, public official, or other individual or entity subject to the jurisdiction of the State of Maine; or (ii) related to property located within the territorial jurisdiction of the State of Maine or a transaction substantially connected to the State of Maine; and
b. the notary has no actual knowledge of any laws or regulations of the jurisdiction in which the witness is located that prohibit the witness’s acknowledgment of the statement or signature.
3. All rules of procedure, court orders, and opinions applicable to remote testimony, depositions, and other legal testimony, including the attestation of family law forms, that can be read to limit or prohibit the use of audio-video communications equipment to administer oaths remotely or to witness the attestation of family law forms, are hereby suspended, and will remain suspended until the expiration of these provisions.
Again, thank you for your efforts to help Maine people weather the storm of COVID-19, and we hope you will consider issuing an emergency order regarding notarial acts as described above.
If you have questions, need more information, or if our Association can be of assistance with regard to this or any other issue, please do not hesitate to let us know. Thank you for your consideration.
President, Board of Governors
cc: Chief Justice Leigh Saufley
Angela Armstrong, Executive Director, MSBA
1. NH Emergency Order #11 of Executive Order 2020-04, Temporary Authority to Perform Secure Remote Online Notarization (March 23, 2020).
2. FL Supreme Court, COVID-19 Emergency Procedures for the Administering of Oaths via Remote Audio-Video Communications Equipment, (March 18, 2020).