COVID-19 UPDATE: Governor Sununu Issues Emergency Order Allowing Remote Notarization

Notaries provide an invaluable service to New Hampshire residents – administering oaths, verifying signatures on official and legal documents, and certifying the genuineness of documents.

Historically, the essence of a notary’s services is in-person presence – of the witness, the document, or the party executing a document. The Notary Public and Justice of the Peace Manual states that “A person must be physically in the presence of the notarial officer for any notarial act to be performed in that person’s name.”

There is no exception under existing law for “video conference or other electronic means where the person making the act is at a physical location different from the notarial officer or otherwise not in the physical presence of the notarial officer.”

And “even where a notarial officer may work with and perform notarial acts regularly for another person, there are no exceptions to the legal requirement that the person be in the physical presence of the notary for each and every notarial act.”

In-person contact of all types has been severely restricted as part of the effort to contain and address the Covid-19 epidemic. Notaries were not excluded from these recommendations. And even if they were defined as an essential service, requiring personal presence for notary services may expose everyone involved in the transaction to avoidable risk.

On Monday, March 23, 2020, Governor Sununu issued Emergency Order 11 in an effort to address this important issue.

For the duration of the State of Emergency (as declared in Executive Order 2020-04), a notarial officer may “perform a notarization for an individual not in the physical presence of the notary officer” if the following requirements are met:

  1. The notary and their client can “communicate simultaneously by sight and sound;”
  2. The notary has verified the identity of the client through personal knowledge, two forms of identification, or the sworn identification of a third witness who is also participating in the audio-video communication, and are themselves known to the notary or possess the proper forms of identification;
  3. The notary creates an audio-visual “recording of the performance of the notarization” and keeps that recording for the duration of the notary’s authorization, or until earlier specified by State law;
  4. Once the client signs the document, they must mail the original to the notary, who will then certify and mark in the normal course with the official seal or stamp; and
  5. Even though the stamp is added later, the “official date and time of the notarization shall be” the moment the signature occurs on video.

Emergency Order 11 is careful to provide that nothing in the order prevents anyone from challenging a notarization for any existing reason or basis, including fraud or lack of capacity.

Note that unlike in-person transactions, the original document must make two trips through the mail (or other courier) before it can be used or filed. As a result, if you’re planning to use remote notarization, you should allocate sufficient time to allow for transit of the document.

If you’re facing an urgent deadline, an in-person notarization may be unavoidable. Although the Order says the document “shall” be mailed to the notary, it may also be possible to implement a hybrid system – execution performed via remote audio-video conference, and the document delivered and returned the same day.

Please reach out to your contacts at Orr & Reno with any questions, or if you need notary services under the emergency order.

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