Top 3 Potential Pitfalls in Michigan’s Remote Notary Executive Order
By Deborah S. Lapin and Corinne S. Rockoff
Many in Michigan were excited to see the Governor’s recent Executive Order 2020-41, effective April 8, 2020, which expanded capabilities for remote notarization in the state during the COVID-19 pandemic. This order will open the virtual doors for thousands of Michigan notaries who until now, had been forced to choose between carrying out their duties and staying safe from the coronavirus.
The upsides are clear on first glance at the Order, but the reality of implementing its requirements may be a little more challenging. With rules and regulations changing quickly, we’ve put together the Order’s top three requirements that newly-remote notaries are likely to miss.
- Same Day Transmission: Section 5(f) of the Order requires that the signatory transmit a copy of the entire signed document directly to the notary on the same day it was signed. That means that the signatory can’t sleep on it, and they can’t email over just the signature page. If you’re planning on mailing original signed documents, be sure that execution is completed before the mail is picked up for the day to meet this requirement.
- Tamper Evident Signature: The Order allows for electronic or other signature, but it places an important boundary on this option – signatures must be made in a manner that ensures that any later changes are tamper evident. Many technological options exist to create valid e-signatures that would meet this requirement, but a simple “/s/Signature” e-signature won’t do the trick here without some additional steps.
- Record and Maintain the Notarization: Notaries can utilize any technology that allows for two-way real-time audiovisual conferencing, but not just any FaceTime or Skype call will do. Section 5(b) of the Order requires that the videoconferencing platform be able to make a complete audio and video recording of the notarization. The notary is required to keep that recording as their record of the notarial act, which means that notaries should be cautious about how they store that video file to ensure that its loss doesn’t constitute non-compliance.
These are just a few of the requirements that the Executive Order lays out, so it’s key that any newly-virtual notaries in Michigan take a thorough read through its provisions to ensure that their online notarizations are valid. These steps may seem taxing, but with some guidance this order should help keep signatories and notaries safe during this challenging time.
Deborah S. Lapin
Shareholder, Financial Services and Real Property Litigation Group member
Phone: (248) 208-0709
Fax: (248) 208-0729
Corinne S. Rockoff
Associate and member of the firm’s Financial Services and Real Property Litigation Group.
Phone: (248) 827-1881
Fax: (248) 827-1882