(Original Article dated April 14, 2020)
UPDATE: By Executive Order 202.72 dated November 3, 2020, Governor Cuomo has further extended his prior orders permitting the use of audio-visual technology for notarization and witnessing, as provided below, through December 3, 2020. Specifically, the Governor stated, “I hereby continue the declaration of the State Disaster Emergency effective March 7, 2020, as set forth in Executive Order 202.” Executive Orders 202.13, 202.14, 202.18, 202.28, 202.38, 202.48, 202.55, 202.60, and 202.67 previously extended the expiration dates for the applicable Orders described below.
To assist notaries and the public, the New York Department of State has issued official guidelines (dated March 31, 2020) for implementing Governor Cuomo’s remote notarization order.
Amid the COVID-19 pandemic, certain states are adjusting rules by emergency executive order. In New York, executive orders have been issued to facilitate not only remote notarization, but now also remote witnessing.
By an order dated March 19, 2020, Gov. Andrew Cuomo relaxed New York’s notary requirements to permit use of “audio-video technology” through April 18 under specialized rules.
The executive order provides that “[a]ny notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:
- “The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
- The video conference must allow for direct interaction between the person and the Notary (e.g., no pre-recorded videos of the person signing);
- The person must affirmatively represent that he or she is physically situated in the State of New York;
- The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
- The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
- The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.”
In addition, by an order dated April 7, 2020, Gov. Cuomo relaxed New York’s requirement for witnessing the execution of wills, trusts, powers of attorney that include statutory gift riders, health care proxies, and statutory appointments of agents to control disposition of remains under specialized rules to permit the use of audio-video technology through May 7, 2020, provided that the following conditions are met:
- “The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
- The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
- The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
- The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
- The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.”
For more information regarding signing documents electronically and remote notarization and witnessing, see the alert “The COVID-19 Pandemic Raises the Importance of Understanding Whether and When Documents May Be Signed Electronically and Witnessed or Notarized Remotely.”
