09 April 2020

Executive Order 2020-41 Takes Notarization Digital

On April 8, 2020, Governor Whitmer signed Executive Order 2020‑41, which relaxes notarization requirements in Michigan until midnight on May 6, 2020.  Similar to the loosening of other laws under prior EOs, EO 2020‑41 suspends strict compliance with the Uniform Electronic Transactions Act (UETA), the Uniform Real Property Electronic Recording Act (URPERA), and the Michigan Law on Notarial Acts.  In short, that means signatures under UETA and URPERA may be electronic unless a physical signature is required by law, and the physical presence of an individual or witnesses in front of a notary public is no longer required.

The majority of the EO details specific requirements relative to notarization during the period the EO is effective.  Without reciting each and every requirement in the EO, there are three major aspects to remember.  First, the EO requires the use of audiovisual equipment, meaning all individuals involved must be able to communicate visually and audibly.  Those communications must be recorded and the record kept.  Second, signatures must be affixed in a tamper‑free manner to prevent alteration at a later time.  Third, the individual seeking the notarization must state that the individual is within the geographic boundaries of the state.  If the individual is not in Michigan, the individual must either (1) state the document is intended for filing relative to a matter before an entity subject to the jurisdiction of Michigan, or (2) the document involves property in Michigan or a transaction substantially connected to Michigan.

Of course, the usual requirements relative to proving one’s identity are not suspended – so individuals and witnesses must still display identification documentation (e.g., a valid state-issued photo identification) to the notary public.  And, the individual must ensure a legible copy of the document in question is provided to the notary public. There are a number of other, specific requirements applicable beyond the above, both for general notarization and for UETA and URPERA signatures – including requirement that financial institutions accept reception of same.

Miller Johnson recommends a full review of the EO, which is accessible here.