Emergency Remote Notary, Witnesses and Execution of Health Care Directives Without Witnesses During Emergency
[Editor’s note: We appreciate the substantial contributions of John H. Griffing of Griffing Leazer, PLLC in Gastonia and Kathleen R. Rodberg of McGuire Wood & Bissette in Asheville in preparing this post for timely publication. Please look for a separate post by Kathleen R. Rodberg on guardianship changes shortly.]
[Additional Writer and Editor’s note: When assisting clients with estate planning documents this statute does not alter legal precedent requiring original wet signatures and original wet notarizations on most documents. This blog only focuses on the steps a notary would take in completing a remote video notarization when an original wet signature is required. Please reference the provisions of G.S. 10B-25(e)(1) for direction on remote video notarization when an original wet signature and original wet notarization are not required for the document.]
Attorneys from the Elder and Special Needs Law Section of the North Carolina Bar Association in collaboration with NC NAELA, other sections of the North Carolina Bar Association and its leadership, other interested parties, and the North Carolina General Assembly have been working to introduce the legislation that passed on May 2, 2020, and was signed into law by Gov. Cooper on May 4, 2020, authorizing remote notarization, remote witnessing, and execution of health care directives without witnesses during the state of emergency. There were a lot of compromises. Ultimately, we have legislation that will aid you in providing safe assistance to your clients during the COVID-19 public health crisis.
As many of you know, there had been calls for the Governor or Chief Justice to enter orders to authorize remote notarization and witnessing. However, as the relevant statutes were reviewed, it was determined that such orders would not be sufficient to overturn the statutory “presence” requirements. Legislative correction turned out to be the best option to assure that documents executed under the emergency authority would not be later determined to be invalid.
So, what does the legislation allow and what are the steps required? The legislation provides for: 1) remote video notarization, 2) remote video witnessing, 3) execution of health care powers of attorney with only a notary, and 4) execution of living wills with only a notary: https://www.ncleg.gov/BillLookUp/2019/S704
Remote Video Notarization (10B-25 – Expires August 1, 2020):
Technology and Location Requirements:
A notary who is physically located in North Carolina is authorized to notarize any document, except election documents, using video conference technology with the following requirements: 1) The video conference technology must occur in real time; 2) it must have clear sight and sound; 3) it must be capable of recording or taking screen shots; and 4) principals must verify that they are physically present in North Carolina and identify the county where they are located.
Identification and Oath Requirements:
If the notary personally knows the principal, then he or she may rely on the video to verify the identity of the principal without additional identification. If the notary does not personally know the principal, then the identification can be based on one document that 1) is current or did not expire prior to March 10, 2020; 2) was issued by a federal, state, or tribal government; 3) bears an image of the principal’s face; and 4) has the principal’s signature and physical description.
The notary must use the video to observe the principal sign and the principal must state what document the principal is signing at the time of signature.
If the act requires an oath or affirmation, the notary shall administer the oath or affirmation using the video conference technology.
Verification of Signature Requirements:
Original Principal and Original Notary Signature. After signature, the principal shall transmit a copy of the signed document to the notary by electronic means (e.g. fax, scan or photo) on the same day it was signed and deliver the original signed document to the notary by mail or other physical method. The notary shall compare the original document with the electronic transmittal, notarize the original, date the notarization as of the date of the act observed using the video conference technology, and promptly transmit the original to the principal or the principal’s designee.
An acknowledgement for an emergency video notarization shall include:
- The North Carolina county where the notary was located during the video notarization;
- The North Carolina county where the principal stated he or she was located;
- The following statement: “I signed this notarial certificate on _________(Date) according to the emergency video notarization requirements contained in G.S. 10B-25.”
Notary Journal Requirements:
A notary must record the information in a notary journal that shall be retained for 10 years and may be maintained in electronic form. The journal shall include:
|
Time of signing |
Date of completion |
First and last name of principal |
Type of notarial act |
Type of document /proceeding |
Type of ID – issuing agency; identification number |
Type of video technology |
Could see and hear? (y / n) |
Names of persons with principal |
Remote Video Witnessing (10B-200 – Expires August 1, 2020):
A witness or attesting witness physically located in North Carolina is considered “in person” or “in the presence of” the principal signer if the video technology allows for direct, real-time audio and video interaction between each principal signer and witness. The attesting witness must sign the record while the video technology still allows for direct audio and video interaction between principal and witness.
The record must contain a statement as follows:
“The record was witnessed by _____________witness physically located in _________ County, North Carolina while the principal was physically located in __________ County, North Carolina pursuant to NCGS 10B-200.”
Execution of Health Care Power of Attorney (32A-16.1) and/or Living Will (90-321.1) – Expires the earlier of termination of state of emergency or August 1, 2020:
A Health Care Power of Attorney or Declaration of a Desire for a Natural Death can be validly executed if properly acknowledged before a notary. The witness requirement is temporarily suspended during this time period.
The notary acknowledgement must contain a statement indicating that the advance directive was signed in accordance with the procedures of NCGS 32A-16.1 (health care powers of attorney) or NCGS 90-321.1 (natural death declarations), but no specific language is provided in the bill. A statement that should satisfy the requirement is as follows:
“This instrument was executed in accordance with the procedures set forth in NCGS 32A-16.1 and/or NCGS 90-321.1.”