Bulletin: MD2021001

Dear Associates:

On June 15, 2021, Governor Larry Hogan issued Executive Order 21-06-15-01 terminating various emergency orders (You may read the order here). Thursday, July 1 will mark the beginning of a 45-day grace period, where certain regulations will continue to be relaxed to complete the administrative transition out of the pandemic. This includes such provisions as renewing driver’s licenses, winding down emergency health operations, and the moratorium on evictions related to COVID-19. 

Remote Notarization as of October 1, 2020: 

The requirements of remote notarizations, as allowed in this new law effective October 1, 2020, are different than those that are currently allowed under the Governor’s Order temporarily allowing remote notarizations during the COVID-19 state of emergency. Remote notarizations using technology primarily intended for video conferencing (such as Skype, Microsoft Teams, Google Meet, etc.) are not allowed under this new law.

Remote notary notification forms submitted during the COVID-19 state of emergency do not authorize a notary public to perform remote notarizations under this new law. A new remote notary notification form will be required. Before a notary public performs their initial remote notarial act under the new law effective October 1, 2020, the notary public shall notify the Secretary of State that the notary public will be performing notarial acts facilitated by communication technology and of the technologies the notary public intends to use. The Secretary of State will create a notification form to be submitted by the notary public to the Secretary of State to fulfill this requirement.

Remote Notarizations:

The new law legalizes notarial acts using communication technology for a remotely located individual. These notarial acts are better known as remote notarizations or remote online notarizations.

Under the new law, remote notarizations cannot be performed with respect to a will as defined in Section 1-101 of the Estates and Trusts Article, Annotated Code of Maryland or a trust instrument as defined in Section 14.5-103 of the Estates and Trusts Article, Annotated Code of Maryland.

Section 18-214 of the new law allows a notary public to perform a remote notarial act if the notary public can identify the remotely located individual in one of three ways:

(1) has personal knowledge of the identity of the remotely located individual;

(2) has satisfactory evidence of the identity of the remotely located individual by verification on oath or affirmation from a credible witness appearing before and identified by the notary public under Section 18-206(b) or as a remotely located individual; or

(3) has obtained satisfactory evidence of the identity of the remotely located individual by:

Remote presentation of an identification credential described in Section 18-206(b); 

Credential analysis of the identification credential; and 

Identity proofing of the individual.

Section 18-223 of the new law outlines requirements for knowledge-based identify proofing, credential analysis of an identification credential, and using secure communications technology. There are also requirements for how the records must be stored and for how long the records must be stored (10 years from the last entry in your journal).

Record Keeping Requirements for Notary Public:

Details of each notarial act performed by the notary public including, but not limited to:

The date and time of the notarial act, description of the record presented for notarization, name and address of the individuals for whom the notarial act is being performed, how the individuals were identified, and the fee charged. 

Identification of a signer (Sections 18-206):

A notary public must satisfactorily identify the person requesting a notarial act before performing the notarial act. This law provides a few options for identifying a signer, as follows:

Personal Knowledge; Government issued photo identification including; driver’s license, passport, consular identification, or government issued nondriver identification card or credible witness.

Competency:

The new law empowers a notary public to refuse to perform a notarial act if the notary is not satisfied that the individual executing the record is competent or has the capacity to execute the record or is not satisfied that the individual’s signature is knowingly and voluntarily made.

Types of Notarial Acts and Notarial Certificates:

This new law defines six (6) types of notarial acts performed by notaries public, and alters requirements for performing each of the following notarial acts:

Acknowledgment; Verification on oath or affirmation of a statement; Witness or attest to a signature; Certify or attest a copy of a record; Certify a tangible copy of an electronic record; Protest of a negotiable instrument.

The new law will require each notarial act to have a notarial certificate. Details on performance requirements for each act can be found in Section 18-204. Requirements for affixing notarial certificates are also found in this Section.

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