This blog post now includes an April 15, 2020 update, that I set forth at the bottom of this original post. Immediately below is my original post.
Georgia Governor Kemp, on April 9, 2020, signed an Executive Order allowing lawyers (or a Notary under the supervision of the lawyer) to sign documents remotely as a Notary Public, with the following requirements:
(1) The lawyer as Notary (or his or her supervised Notary) participates as the Notary Public by a real-time audio-visual means (Zoom, etc.) along with the individual(s) whose documents need to be notarized;
(2) The Notary during the audio-visual meeting reasonably verifies the identity of the individual whose signature is being notarized;
(3) The Notary actually witnesses the person sign the documents while the Notary and individual are together connected to the audio-visual meeting;
(4) The Notary must physically be in Georgia while participating in the audio-visual meeting (see my additional comment further below about this participation point);
(5) The documents have to be physically delivered to the Notary on the same calendar day of the audio-visual signing so that the Notary can add his or her notary stamp and signature to the documents.
The Executive Order allowing this remote Notary set-up expires either when the Georgia Covid-19 State of Emergency ends, or if the set-up is otherwise terminated earlier.
Click here for a copy of this Georgia Executive Order.
My Additional Observations about this Executive Order
This Executive Order applies only to lawyers who are Notaries, or non-lawyer Notaries supervised by the lawyer. A non-lawyer Notary — but only if supervised by a lawyer during the audio-video meeting –can notarize documents under this remote order.
The remote set-up must include both audio and video. My reading of the Executive Order is that it does not apply merely to audio calls.
The Executive Order allows this remote audio-visual set-up for any act that can be performed by a Notary under the Georgia notary statutes, including a Notary attestation to a sworn statement; but, of course, for documents requiring a sworn oath, the Notary must take the individual’s oath over, and during, the audio-visual meeting.
The Notary must physically be in Georgia while participating in the audio-visual meeting. The Notary (whether lawyer or supervised Notary) must be a current, active Notary Public.
The lawyer (if not a Notary) along with his or her supervised Notary must each participate (but can be in different physical locations if necessary) in the audio-visual meeting so that the attorney can supervise the non-lawyer Notary as needed for the audio-visual documents, meeting, etc.
Finally, in my opinion, the following is an important soft spot in this Executive Order that warrants your attention.
Where Can the Individuals Signing the Document be Located?
The Executive Order does not address whether the individuals (other than the Notary) signing the documents must be present in Georgia during the audio-visual meeting.
IMPORTANT NOTE: The April 15 update below only partially touches on my concern about the location of the individuals signing the documents. The update appears to suggest the individuals and non-notary witnesses signing the documents “should” be present in Georgia during the audio-video call. The update reiterates the point that the Notary “must” be in Georgia during the audio-video call. I suggest readers continue to think about the concern I state below in situations where the individuals signing the documents are not in Georgia during the audio-video call.
This location-of-the-individuals remains, in my opinion, a gray area of the Executive Order. Assume, for example, the individuals signing the documents during the audio-video meeting are in New York; the Notary is a Georgia Notary physically in Georgia during the meeting.
In short, I am not comfortable recommending — in every instance — this Georgia Notary remote set-up when the individuals signing the document are not physically in Georgia during the audio-visual meeting. If the individuals are not physically in Georgia, there may later arise questions about whether the state law other than Georgia will recognize the Georgia remote notarization (e.g., if the document is a a sworn, notarized document, or governed by the law of a state other than Georgia). Arguably, other non-Georgia states should recognize the Georgia remote Notary order under the doctrine of comity, etc. But, I simply do not believe the answer is unequivocally clear so as to apply this Georgia remote notarization procedure in every situation.
Update Below 4.15.20 — Now Answers the Above Soft Spot
My above original version of this post is dated April 13, 2020. Today, April 15, 2020, the State Bar of Georgia issued additional clarifying details about this remote notary situation. The additional detail is very helpful and well-presented.
Click here for a link to the Georgia Bar additional material.
I do not summarize all of the additional material. But, below are five key points from this additional material that supplement my above post :
(1) The individuals signing the documents must be present in Georgia during the audio-video meeting (along with the Notary having to be present in Georgia for that meeting);
(2) The Notary who participates in the audio-video meeting does not have to be an employee or agent of the lawyer; but, in all cases with these audio-video meetings the lawyer must be present on the audio-video meeting so as to oversee and supervise the Notary;
(3) The Georgia State Bar recommends that any documents signed under this audio-video remote set-up include the following caption at the top of the document:
Notarized Pursuant to Executive Order 04.09.20.01
(4) And, that the Notary’s signature block include: “This [name of document] was notarized pursuant to Executive Order 04.09.20.01 using [insert technology name; Zoom, etc.] as real-time audio visual communication technology.”
(5) The additional material includes also an embedded link for suggestions from the Georgia Fiduciary Law Section about executing estate planning documents under the Executive Order. I highly recommend estate and trust lawyers read this additional information, which also includes well-stated, thorough recommendations.