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George F. Bearup, J.D. Senior Legal Trust Advisor

9-Apr-20

Electronic Notarization in Michigan

Take-Away: In 2018 Michigan adopted a statute that authorizes electronic and remote notarizations of legal documents. However, not all states have such statutes. In light of the multiple nationwide ‘stay at home’ orders, there is now a Bill pending in the U.S. Senate that would authorize electronic and remote notarizations throughout the country in order to facilitate interstate commerce.

Background: The Michigan Notary Public Act (the Act) was amended in 2018 to authorize remote and electronic notarizations. [MCL 55.261 to 55.315.] This Act clarifies that a notarization act performed using a remote electronic notarization platform that otherwise satisfies the requirements of the law is presumed to satisfy any requirement under the Act that a notarization act be performed in the presence of a Notary. While the identity of person signing the document still needs to be confirmed, that confirmation can be accomplished electronically. Notarization under the Act can be for the citizens of all 50 states.

  • Identity Proofing Process:  The Act provides that a Notary must have satisfactory evidence of identity with regard to a notarization act identified and verified through an identity proofing process or service that is part of an approved remote electronic notarization platform. The person who is to sign must present an identity document that is verified through a credential analysis process or service that is part of a state-approved remote electronic notarization platform.
  • Approval Process: All electronic platforms must be approved by the Michigan Secretary of State and the Michigan Department of Technology, Management and Budget. In approving the vendors of such platforms, Michigan will take into consideration the standards and customs of other jurisdictions that allow remote electronic notarizations in the evaluation of a proposed electronic platform. These platforms must be able to verify the identity of the signer and enable the affixation of an electronic signature and notary seal using a secure key to the electronic documents. Accordingly, the platform that will be approved must be securely authenticated and tamper evident.
  • Notary Requirements: The Act contains several rules that govern a Notary who notarizes legal documents remotely and electronically.
  • Consent to Recordings: For example, the Notary may not use audio or visual recording devices without disclosing that an audio or visual recording is being made, and how it will be preserved. The person who signs the document must first consent to the recording. If the person refuses to provide their consent the Notary may refuse to follow through with the act of notarization.
  • Journal: The Notary is required to maintain a journal of those persons who signatures are notarized remotely and electronically. Only one jounal may be maintained for this purpose. The journal must be maintained in a tangible, permanent bound register, or in a manner that is tamper evident. The journal must be maintained by the Notary for up to ten (10) years. If the Notary ceases to be a notary, i.e. whose license is not renewed, must advise the Secretary of State where the journal will be maintained, or the journal must be surrendered by the former Notary to the Secretary of State.

Federal Bill: Senate Bill 3533 would authorize remote and electronic notarizations throughout the country as part of Congress’ constitututional authority to regulate and protect interstate commerce. Unfortunately, the Bill’s proposed name is Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020, or the seemingly redundant SECURE Act of 2020. We already have one SECURE Act to deal with, so hopefully if this federal Bill comes to fruition, it will carry with it a distinguishable name.

Conclusion: As we learn to work more remotely from our homes during this epic period in our country’s history, we can expect many more statutes that are designed to facilitate digital commerce, including electronic Wills, which is currently being studied by the State Bar of Michigan’s Probate and Estate Planning Section.