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Opinion: Remote notarization could be here to stay

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It has become painfully clear over the past few weeks of the COVID-19 era that the standard way of doing business has evolved. A new normal has taken over every aspect of our daily lives. Flexibility in how we approach our everyday procedures has become increasingly important across all industries. This reality, and the need to adapt to rapidly changing circumstances, recently led Missouri Gov. Mike Parson to implement important changes in the way legal documents – such as trusts, wills, deeds and health care directives – may now be signed, notarized and witnessed.

On April 6, the governor issued Executive Order 20-08, authorizing the remote signing of documents via audio-visual technology (e.g., Zoom or FaceTime) without the requirement that the signer be physically present before a notary or witnesses. This order remains effective through June 15, and is intended to ease the process of signing important documents while allowing individuals within our state to remain safely at home and protected from any potential health concerns. This new process will especially benefit those considered high-risk, such as nursing home residents.

Under the order, for an individual’s remote signature to be effective, several specific procedures must be followed. For example, both the individual and the notary must be physically present in Missouri at the time of signing. A copy of the signed documents must be sent to the notary by the signer within five business days. The software used in the virtual meeting must allow all parties to both see and hear each other, and the meeting must be held in real time (i.e., no recorded signings). And if the documents are being signed electronically rather than in paper form, the notary must be officially registered with the secretary of state as an “electronic notary public.” It is vital that these, and the other procedures outlined in the order, be followed to ensure the document is not later determined to be invalid.

While remote notarization is new to Missouri, it has been the law of 23 other U.S. states for the past several years. Virginia was the first to pass such a law in 2011. Since the rise of the current pandemic, 21 additional states, including Missouri, have issued emergency orders temporarily authorizing the use of remote notarization.

While the requirements for signing vary from state to state, the bottom line is that the traditionally crucial requirement of physical appearance before a third-party (the notary public) has been completely eliminated. This change has caused some to question whether the customary goals of preventing fraud and ensuring that a person’s signature is voluntary are being sacrificed in the name of efficiency and convenience.

However, regardless of one’s opinions on remote notarization, we must acknowledge that the process is now available in Missouri, at least temporarily, and has gained great traction throughout the country in the past decade. Local law offices already have assisted several clients in signing estate planning documents remotely, and many more such meetings are being scheduled each week. It is very likely that, due to the growing popularity of remote notarization in recent years, coupled with the public’s newfound familiarity with the procedure during the current pandemic, laws will be passed by the remaining 27 states within the next couple of years permanently authorizing the use of this innovative procedure. Remote meetings and signings will likely become commonplace in the legal industry as well as many others, creating even more ways to assist our clients and customers and provide added value. This could particularly be true for clients living outside of the immediate geographic area and will give all of us the ability to increase our consumer-base.

While our new normal will certainly take some time to get used to, we cannot afford to fail in taking advantage of the new procedures and opportunities that have arisen during this challenge to improve the way we assist our clients and customers. Remote notarization is just one of the opportunities that Missourians should take advantage of moving forward. I would encourage you to look for others.

Andy Peebles is an estate planning and business attorney with the law firm of Carnahan, Evans, Cantwell & Brown PC. He can be reached at apeebles@cecb.com.

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