By: Andrew Thompson
Last year, the Florida Legislature passed House Bill 409 which, among other things, allows for (1) the performance of most notarial acts remotely, by using audio-visual technology and (2) the execution of electronic wills in Florida. The changes in the law that allow for remote notarization of documents went into effect on January 1, 2020. (The provisions regarding electronic wills will become effective July 1, 2020).
Even if you are not using remote notarization, there are changes relating to the notarization of documents to which you need to be aware. The form of notarial certificate that must be used when notarizing a signature has changed. This revised version of notarial certificate must be included on all documents notarized after January 1, 2020, even when the document is not notarized remotely. The certificate must now state “whether the signer personally appeared before the notary public at the time of the notarization by physical presence or by means of audio-video communication technology.” Notably, we have been made aware of instances where certain county clerk offices are refusing to record any document with a certificate that does not contain this required statement. As a result, if you perform notary services or are a party to documents that must be notarized, you need to be sure your documents are in compliance with this new law to avoid delays or problems in recording and enforcement of documents.
As for the actual remote notarization, a notary must qualify and be registered with the Florida Department of State as an “online notary public” in order to perform notarial acts remotely. A person designated as a Florida online notary public is subject to additional rules applicable to online notarizations and must follow other additional procedures. For example, an online notary public must maintain “one or more secure electronic journals of the online notarizations they perform” and preserve an “uninterrupted and unedited copy” of the recording of the audiovisual communication. Further, the online notary public must take certain steps to confirm the identity of the principal (the person whose signature the online notary is acknowledging electronically) and any witnesses before performing an online notarization.
After all parties have been authenticated, the online notary public and other parties will be connected by a recorded audio-visual communication similar to Skype or FaceTime. The online notary public must then lead the parties through a series of steps and communications designed to ensure the principal understands what is taking place and that that the principal is knowingly and voluntarily signing the document. Failing to comply with these procedures may be introduced as evidence to establish violations of Chapter 117 of the Florida Statutes, “or as an indication of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or for other evidentiary purposes.”
We expect that the rules and procedures for remote online notarization in Florida to change as notaries begin to utilize this option and online platforms become available. In the meantime, you must take care to ensure that any documents notarized on or after January 1, 2020 contain the required statement in the notarial certificate to comply with the revised statute. Section 117.05(13) of the Florida Statues has examples of the notary certificates to use in your documents. And of course, if you have any questions about the requirements of the new online notarization procedures or notarial certificate requirements, please do not hesitate to call us to discuss.
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