Not all actions taken by Colorado in response to the COVID-19 pandemic have resulted in increased restrictions. On March 27, 2020 Governor Jared Polis issued Executive Order D 2020 019 “Ordering the Temporary Suspension of the Personal Appearance Requirement for Notarization due to the Presence of COVID-19” (“Executive Order”).
In the spirit of “social distancing” initiatives, the Executive Order “temporarily suspends the requirement to appear personally before notarial officers to perform notarizations and authorizes the Secretary of State to promulgate and issue temporary emergency rules to permit notarial officers to perform remote notarizations.” The Executive Order, however, expressly states that it does not affect “the rights or duties of parties to existing contracts of insurance or other private contracts that may require or anticipate in-person notarization of documents….”
On March 30, 2020 Colorado Secretary of State Jena Griswold issued emergency rules outlining the procedures and requirements for remote notarization in Colorado pursuant to the Executive Order (“Emergency Rules”). The Secretary of State’s Office has worked for several years on legislation permitting remote notary service, and the new emergency remote notary process “builds on this work.” The Emergency Rules are codified at 8 CCR 1505-11.
Emergency Rule 5 addresses remote notarization, and sets forth numerous specific and detailed requirements, including the following:
- Currently commissioned notary publics may only perform remote notarization for persons not in their physical presence if both the notary and the remote person are located in the state of Colorado at the time of the notarial act (Rules 5.2.1 & 5.2.3).
- Notary publics must use an electronic device or process that allows the notary and the remote person to “communicate with each other simultaneously by sight and sound” (i.e., videoconferencing, including phone applications) that will “record the entire communication” (Rule 5.1.6).
- Notary publics must also use a remote notarization system that enables them to verify the identity of the remote person (Rules 5.2.4(a) and 5.2.5).
- There are numerous requirements and disclosures that notary publics and remote persons must make on the audio-video recording of a remote notarization (Rule 5.2.8).
- After a notary public performs a remote notarization, the remote person must transmit a legible copy of the document by electronic means (i.e., fax or email) directly to the notary on the same day that the act took place, and the notary must notarize the transmitted copy of the document as soon as it is received and transmit it back to the remote person (Rule 5.2.9(a) & (b)).
- Notably, remote notarization cannot be used for wills unless:
- The original signed document is presented to the notary public within 15 calendar days of the date of the remote notarization; and
- Within three calendar days of receiving the signed document, the notary public confirms that the document is identical to the remotely notarized document, and affixes his or her signature and seal on to the original signed document, reflecting the date of the remote notarization.
(Rules 5.2.2(b) & 5.2.9(c)).
Notary publics who plan to perform remote notarizations should review the Emergency Rules in their entirety before doing so and assure that they have adopted a remote notarization system that fully complies with all of the requirements of the Emergency Rules. For more information on this topic, contact one of the attorneys at Cantafio & Song PLLC.