Client Update—Executive Order Authorizing Remote Notarizations

On April 8, 2020, Governor Janet Mills issued Executive Order 37 FY 19/20 (the “Order), authorizing the use of two-way audio-video communication technology by notary publics or other persons authorized to perform notarial acts (the “Notary”) to remotely notarize any document required to be acknowledged, witnessed, or notarized in person under Maine law, with some exceptions. To help provide our clients with up-to-date guidance, we have summarized the Order, its requirements, and how to conduct remote notarizations.

  • The Notary, the individual signing the document (the “Signatory”), and any witnesses must be physically located within the State of Maine and be able to contemporaneously interact by sight and sound in real time by use of a two-way audio-video communication technology.
  • The Notary must be provided with a copy of the document to be executed prior to the remote notarization occurring. If the document to be executed is a Will or a Power of Attorney, either the Notary or at least one witness must be an attorney licensed to practice in Maine.
  • The Notary must reasonably identify the Signatory by (i) personal knowledge, (ii) the Signatory’s presentation of a valid photo identification during the video conference; or (iii) the oath or affirmation of a witness. If the Notary is relying upon the oath or affirmation of a witness, then the Notary must reasonably identify the witness in accordance with either (i) or (ii) above, and the witness must be in the physical presence of the Notary or Signatory, or be able to simultaneously communicate with both the Notary and the Signatory via two-way audio-video communication.
  • The Notary, Signatory, and any witnesses must attest to being physically located in Maine, and the Signatory must affirmatively state what county they are located in.
  • The Notary must be able to view the entire space in which the Signatory and any witness is located. If any other person is present, that person must state their name while on video and in clear view of the Notary.
  • The Signatory must state what document they are signing, clearly and legibly show the Notary each page of the document, and then initial each page in the presence of the Notary and any witness.
  • The act of the Signatory signing and initialing the document must be captured sufficiently up close for the Notary to observe.
  • The Notary must create a recording of the audio-video communication and preserve it for a period of five years from the date of the notarial act. The recording must be provided to the Signatory or Secretary of State upon request.
  • Immediately after signing the document, the Signatory must transmit by fax or electronic means a legible copy of the signed document directly to the Notary and any witnesses. If it is not possible for the transmission to occur immediately, it must occur within 24 hours of the Signatory’s execution of the document.
  • Within 48 hours of the execution of the document, the Signatory must send the original document to the witness for that witness’ signature, or if there were no witnesses, to the Notary. The witness then has 48 hours to sign the document, and send it to the second witness, if applicable, or to the Notary. This process repeats for all applicable witnesses, each having 48 hours to sign the document and send it to the next witness or the Notary.
  • Once the Notary receives the original signed document, the Notary must compare the document with that transmitted to them immediately following execution, and if satisfied, notarize the original document within 48 hours of receipt, adding “Notarized (and/or Witnessed) remotely, in accordance with Executive Order 37 F/Y 19/20” below the Notary and/or witness signature lines. The official dates and times of the notarization and any witness signatures is deemed to be the time that the document was signed by the Signatory.

Exceptions: The Order does not authorize the remote acknowledgment of the following: (i) solemnization of marriages, (ii) administration of oaths to circulators of state or local initiatives/referendum petitions, (iii) nomination petitions of candidates for electoral office, and (iv) absentee ballots in state and local elections. In addition, the Order does not prevent persons from seeking to invalidate a record based on reasons not addressed in the Order, such as incapacity, absence of authority, or undue influence.

Further Guidance: The Order also authorizes the Secretary of State to issue further guidance consistent with the Order in order to further protect the integrity of the remote notarization process. It is unclear whether the Secretary of State is planning to issue such guidance at this time, but we will provide updates as new information becomes available.