EMERGENCY UPDATE: In light of In re Certified Questions from the United States District Court, Western District of Michigan, Southern Division (Midwest Institute of Health, PLLC v Governor), Michigan Supreme Court Docket No 161492 (October 2, 2020), ICLE contributors Nathan Piwowarski and Howard Collens recommend immediately stopping the use of the Governor’s emergency Executive Orders to remotely witness and remotely notarize documents. The State Bar’s Elder Law and Disability Rights Section, and its Probate and Estate Planning Section continue to promote a legislative proposal to (1) ratify acts of remote witnessing and expanded remote notarization that occurred under the Executive Orders, and (2) allow for the continued use of remote witnessing and expanded notarization in Michigan. See recent legal update for more information on the ruling.
On September 29, 2020, Mich Exec Order No 2020-187 rescinded and replaced Mich Exec Order No 2020-173 . The new order contains all of the provisions of the original order and extends them to October 31, 2020.
Here are the highlights:
Notarization. The order provides that any notarial act required under Michigan law may be performed by a notary (with a valid commission) using two-way real-time audiovisual technology if the following conditions are met:
- The technology allows direct interaction between the individual, any witnesses, and the notary where all can communicate simultaneously by sight and sound.
- The technology can create an audio and visual recording of the complete notarial act that will be retained as a notarial record (MCL 55.286b(7)– (9)).
- The person seeking notary services presents valid photo ID to the notary during the video conference (if the person is not personally known to the notary).
- The person represents that they are physically in Michigan or that, if outside of Michigan,
- the record is intended for filing with or relates to a matter before a court, governmental entity, public official, or other entity subject to Michigan’s jurisdiction; or
- the matter involves property in Michigan or a transaction substantially connected with Michigan; and
- the notary has no actual knowledge that making the statement or signing the record is prohibited by the laws of the jurisdiction of the person’s location.
- The person, any witnesses, and the notary can put their signatures to the document so that any change or modification of the remote notarial act is tamper evident.
- The person mails, faxes, or emails a legible copy of the entire signed document to the notary on the same date it was signed.
- Once the notary receives the document with all necessary signatures, the notary notarizes the document and transmits it back to the person seeking notarization.
- The official date and time of the notarization is the date and time when the notary witnesses the signature via two-way real-time audiovisual technology.
Witnessing. Witnessing via two-way real-time audiovisual technology is allowed if the following conditions are met:
- The technology allows direct, contemporaneous interaction by sight and sound between the signer and the witnesses.
- The interaction between the signer and the witnesses is recorded and preserved by the signer for at least three years.
- The signer represents that they are physically in Michigan or that, if outside Michigan,
- the document is intended for filing with or relates to a matter before a court, governmental entity, public official, or other entity subject to Michigan’s jurisdiction; or
- the matter involves property in Michigan or a transaction substantially connected with Michigan.
- The signer states what document they are executing during the interaction.
- Each title page and signature page being witnessed is shown to the witnesses in a manner that is legible to the witnesses and every page is numbered to reflect the page number and the total number of pages in the document.
- Each act of signing is captured closely enough for the witnesses to observe.
- The signer transmits a legible copy of the entire signed document by fax, mail, or electronic means to the witnesses within 72 hours of execution.
- The witnesses sign the transmitted copy of the document within 72 hours of receipt and return the signed copy to the signer by fax, mail, or electronic means.
Signatures. Strict compliance with the Uniform Electronic Transactions Act and the Uniform Real Property Electronic Recording Act is suspended to permit the use of an electronic signature for a transaction when a signature is required under Michigan law (unless the law specifically mandates a physical signature).
Visitation. A guardian, guardian ad litem, or visitor may satisfy any requirement concerning a visit with a person under the law by conferring with the person using two-way real-time audiovisual technology.