Massachusetts Legislature Passes Remote Notarization Act

Once signed into law, the act will become effective immediately and is set to expire three business days after the termination of Governor Baker’s March 10, 2020 state of emergency declaration due to COVID-19.

The new law provides for remote notarization during the state of emergency, which would temporarily suspend the requirement under Massachusetts law that documents be signed in the physical presence of a notary public. This means that while the social distancing directives are in force, real estate transactions and vital legal documents such as wills, trusts, durable powers of attorney, health care proxies, and HIPAA authorizations signed and notarized remotely will be legally binding and enforceable. For practitioners and clients alike, the lack of remote notarization has halted the completion of these types of documents.

The highlights of the important provisions of the act are as follows:

• Each notary public who performs a remote notarization by videoconference must record the notarial act and retain the audio and video recording for 10 years.
• The following documents can be notarized only by a notary public who is either (i) a Massachusetts licensed attorney, or (ii) a paralegal under the direct supervision of a Massachusetts licensed attorney:
  • A document in the course of a closing transaction involving a mortgage or other conveyance of title to real estate;
  • Wills;
  • Nominations of Guardian or Conservator;
  • Caregiver Authorization Affidavits;
  • Trusts;
  • Durable Powers of Attorney;
  • Health Care Proxies; and
  • Authorizations under HIPAA.
• Please note that the act does not eliminate the need to have witnesses for certain documents.
• Any remote notarization performed using electronic video conferencing will be valid and effective for all legal purposes if performed under the following conditions:
  • The notary public observes the execution of the document by each principal (e.g., testator, settlor, etc.) and each credible witness;  
  • The notary public, each principal and each witness, if applicable, executing the document must be physically located in Massachusetts;
  • Each principal and each witness, if applicable, must swear or affirm that he or she is physically located in Massachusetts;
  • Each principal and each witness, if applicable, signing the document must disclose if any other person is present in the room and must make such other person viewable to the notary public;
  • The principals or witnesses seeking remote notarization must provide the notary public with a valid photo ID meeting the following additional requirements:
    • The photo ID must be visibly displayed during the videoconference.
    • A legible copy of the front and back image of the photo ID must be transmitted by fax or other electronic means to the notary public.
    • If the photo ID is a US or foreign passport book, the copy must include the front cover and page displaying his or her photograph, name, and signature.
    • If a principal or witness is not a US citizen, he or she must provide a valid passport or other government-issued ID or credential, stating his or her nationality or residence and bearing a photograph of his or her face and signature.
    • The notary public must retain a copy of the photo ID for 10 years.
  • The signature of any witness participating in the remote notarization videoconference and whose signature is notarized by the notary public pursuant to this act will be valid as if the witness had been physically present to sign.
  • Each principal and witness, if applicable, must transmit their signed document to the notary public by delivery service, courier, or other means in accordance with the notary public’s instructions.
• Upon completion of the process, the notary public may notarize the transmitted copy of the document.
• The document conforms to the requirements of this act even if the document is signed on multiple pages or multiple locations within Massachusetts.
• The notarial certificate attached to the executed document must include the following:
  • A recital indicating that the document was notarized remotely pursuant to this act;
  • The county in which the notary public was located at the time the notarization was completed; and
  • The date the notarization was completed, with an exception for mortgage financing transactions, allowing the date used to be the date stated within the body of the document even if it precedes the date of completion of the notarial act.
• The notary public must execute and maintain for a period of 10 years an affidavit confirming that the notary public has:
  • Received a copy of the current photo ID of each principal and witness, if applicable, and visually inspected such identification during the initial videoconference;
  • Obtained the verbal assent to the recording of the videoconference by each principal and witness, if applicable;
  • Taken the affirmations of each principal and witness, if applicable, as to his or her physical location in Massachusetts; and
  • Been informed and noted on the affidavit any person present in the room with the principal or witness and such person’s relationship to him or her.
• A failure to include the above confirmations in the notary public’s affidavit does not affect the validity or recordability of the executed document.
• If filing or recording any documents that have been remotely notarized, the notary public’s affidavit will not be required to be recorded or filed and a determination after signing that a principal or witness was outside of Massachusetts or did not accurately disclose the presence of others in the room during execution, will not affect title to real property conveyed by a third-party mortgagee or purchaser.
• The following documents will be complete once all original counterparts and the notary public’s affidavit are compiled:
  • Wills;
  • Nominations of Guardian or Conservator;
  • Caregiver Authorization Affidavits;
  • Trusts;
  • Durable Powers of Attorney;
  • Health Care Proxies; and
  • Authorizations under HIPAA.
• Any document notarized in the course of a closing transaction involving a mortgage or other real estate conveyance must undergo a second videoconference where each principal and witness, if applicable, verifies to the notary public that the document received is the same document executed during the initial videoconference.
• If this act is repealed, amended, or expires, it will not affect the validity of any remote notarizations done while this act was in effect.

For many practitioners, this act will relieve the pressure of coordinating the execution of documents signed in the actual presence of a notary public during this state of emergency.