Governor Mills issues Executive Order lifting in–person requirements for certain notarial acts and acknowledgements

On Wednesday, April 8, 2020, Governor Mills issued Executive Order 37 (EO 37), An Order Temporarily Modifying Certain In-Person Notarizations and Acknowledgement Requirements. This order relaxes certain legal requirements that may make it easier for MEREDA members to execute and close deals during the COVID-19 pandemic.

Specifically, EO 37 suspends the requirement that a person whose oath is being taken and the notary and any witnesses be physically present at the same location with some exceptions. This change is intended to enable notaries and witnesses to perform services over video conference by establishing a number of requirements which must be satisfied to result in a valid notarization. EO 37 also authorizes the Secretary of State to issue additional guidance, but it remains to be seen whether that will happen.

The following is an overview of some key requirements and exceptions in the Order. There are additional specific requirements in the Order and we strongly recommend members review all requirements carefully or speak with an attorney to ensure compliance.

Requirement Highlights

Some of the requirements include that:

• The signatory, the notary and any witnesses must be physically present in Maine when performing the notarial act;
• The notarization must allow for direct contemporaneous interaction between the parties via two-way audio-video communication technology;
• The signatory must initial each page of the document and send an electronic image of each page as well as the hard copy of the document to the witness or to the notary, if no witness was required;
• The witnesses and notary have to meet certain timeframes to complete the notarization, which will be deemed to have occurred on the date of the contemporaneous interaction; and
• A recording of the contemporaneous interaction must be preserved for 5 years.

EO 37 will ensure that documents notarized “in the presence and hearing” of a signatory, in compliance with this order will be deemed to have been notarized in the presence and hearing of the signatory.

The order also provides that notarization will not be deemed invalid or impaired if one of these conditions is not met, so long as the notarization was performed in substantial compliance with the order.

EXCEPTIONS

EO 37 does not apply to the following notarial acts:

• Solemnizing marriages;
• Administering oaths to circulators of state or local direct initiative or referendum petitions and nomination petitions of candidates for electoral office; or
• Absentee ballots in state and local elections.

EO 37 does not change any other requirements under Maine law pertaining to the taking of sworn statements and acknowledgements.  Unless it is sooner amended or rescinded, this order will expire 30 days after the COVID-19 state of emergency terminates – in a proclamation issued April 14, Governor Mills extended the state of emergency to May 15, 2020.