2020 PA 246, 247, 248, and 249, which address remote witnessing, notarization, visitation, and electronic signatures, were signed by the governor on November 5, 2020, effective that date. This new legislation allows electronic signatures and remote witnessing, notarization, and visitation on the terms laid out in Governor Whitmer’s now-invalidated executive orders. See In re Certified Questions from the United States Dist Court, Western District of Michigan, Southern Division, No 161492, ___ Mich ___, ___ NW2d ___ (Oct 2, 2020). Here are the highlights:
Savings clause. The new legislation applies to any document executed on or after April 30, 2020, and before January 1, 2021. MCL 55.286c(4), 700.1202(4).
The rights and interests of one who relies in good faith and without actual notice that a document or instrument notarized, signed, or witnessed remotely under the new legislation was executed on or after April 30, 2020, and before January 1, 2021, but was not executed in accordance with the new legislation are not impaired, challenged, or terminated on that basis alone. MCL 55.286c(5)(b), 700.1202(2).
Notarization. 2020 PA 249 covers remote notarization and 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 and any required witnesses present satisfactory evidence of identity 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. 2020 PA 246 covers the remote signing and witnessing of the following documents (a nonexclusive list):
- a will
- a disclaimer, MCL 700.2903
- a funeral representative designation, MCL 700.3206(2)
- a parental appointment of a guadian for a minor, MCL 700.5202
- an appointment of a guardian for a legally incapacitated individual, MCL 700.5301
- a durable power of attorney, MCL 700.5501
- a patient advocate designation
Signing and 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.
MCL 700.1202(1). Compliance with the signing and witnessing requirement is presumed but may be overcome with clear and compelling evidence that the signer or witness intentionally failed to comply with the requirements. MCL 700.1202(3).
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. 2020 PA 246 adds new section MCL 700.5108a, which allows a guardian, guardian ad litem, or visitor to satisfy any requirement concerning a visit with a person under the law by conferring with the person using two-way real-time audiovisual technology. However, this section applies only until December 31, 2020.