Information about the new Massachusetts law on remote notarization during the COVID-19 state of emergency.
Scope of the Law.
On April 27, 2020, Massachusetts passed a remote notarization law. This law will be in effect during the COVID-19 state of emergency as declared by Governor Baker until, pursuant to his powers as Governor, he declares the state of emergency to have ended. It allows, under specific conditions and changes to the normal procedures, for a notary public to notarize the signatures of individuals via videoconference.
Family, Estate & Trust Law Dangers.
Certain areas of the legal practice are impacted directly by this law, and a mistake in the remote notarization of signatures could result in your document being deemed unenforceable. For example, many common documents in the family, estate, and trust law areas require that the notary be a lawyer. Also, documents must be executed and assembled in a particular fashion for the document to be effective and enforceable in the future.
Will a remote notarization performed before the law was passed be valid?
There is no language in the law that it will apply to remote notarizations performed prior the signing of the bill into law by the Governor, based on the available versions of the Senate and House Bills. The signed Act itself had not been published online as of this writing.
If you have had a document notarized remotely after the COVID-19 crisis but before the passage of this law, you should have that document re-notarized according to the procedure. Not only is there no language in the law stating that it is retroactive, but the very existence of a new law is a strong argument that remote notarizations performed before the law were not lawful.
Do you need a lawyer?
Certain documents under the new law, if consistent with the drafts publicly available, expressly require that a lawyer perform the remote notarization for "...any document requiring notarization and executed in the course of closing a transaction involving a mortgage or other conveyance of title to real estate or with respect to any will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy or authorization under the federal Health Insurance Portability and Accountability Act of 1996...."
Even if your document is not listed above, if you need to have a document notarized, I strongly recommend that you consider having a lawyer do it or, if your lawyer is not a notary, having a lawyer present during the notarization and follow up with the notary to make sure that it is done properly. As with most statutes, most of it is written in dense legalese. By retaining a lawyer to remotely notarize or coordinate remote notarization, that lawyer becomes legally responsible for making sure that it is done properly.
