WILMIC News & Risk Management Articles

Claims Digest: COVID-19 and Executing Documents

As society continues to grapple with the impact of the COVID-19 pandemic, in-person communications and transactions have proven to be quite challenging.

For example, several of WILMIC’s insured attorneys and others have questioned how to formally execute documents without being in the physical presence of the signatory. Some guidance has begun to take shape, and remote execution is now occurring.

Notarization Basics

Back in pre-pandemic 2015, Tom Watson wrote an article, Test Your Notary Public IQ  for Wisconsin Lawyer covering the basics of being a Notary Public. At that time, remote notarization was not allowed, and a brief quiz tested one’s knowledge of common requirements, such as:

  • A lawyer must submit an application to the Wisconsin Department of Financial Institutions (more information can be found at the WDFI’s website) before becoming a Notary Public.
  • As a Wisconsin notary public, you can perform notarial acts only in the state of Wisconsin.
  • Authentication – as opposed to notarization or acknowledgment – applies only to documents relating to lands in Wisconsin. (See Wis. Stat. § 706.06.)
  • Every official act of a notary should be attested by handwritten signature, and must include the notary’s seal or stamp.
  • Not everything is covered in the quiz, and, as discussed below, some of the law has now changed, including the authorization of Remote Online Notarization (RON).

Remote Execution of Documents

Prior to the COVID-19 pandemic, remote online notarization was not allowed. Since the implementation of state “lock downs” and social distancing, confusion and hesitancy have ensued when it comes to the formal execution of documents. WDFI issued emergency orders to allow for remote notarization, and on May 1, 2020, a new law, 2019 Wisconsin Act 125, went into effect to allow electronic Remote Online Notarization (RON) of documents.

Ok, so what is a “Remote Online Notarization (RON),” what training does a notary need to do prior to be able to accomplish a RON, and finally, what are RON limits?

Remote Online Notarization

Under Act 125, “…a remotely located individual may comply with s. 140.06 by using communication technology to appear before a notary public.” Wis. Stat. Sec. 140.145(2).

“‘Remotely located individual’ means an individual who is not in the physical presence of the notary public who performs a notarial act.” Wis. Stat. Sec. 140.145(1)(e). “‘Communication technology’ means an electronic device or process that satisfies all of the following: 1. The device or process allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound. 2. When necessary…, the device or process facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.” [Wis. Stat. Sec. 140.145(a)]

In other words, a signatory and the notary do not need to be in the physical presence of each other when the document is executed. The notary may use WDFI-approved online tools to notarize a document executed by the signatory at another location.

Currently, there are 5 known providers of “communication technology” approved by the WDFI:

  1. Notarize.com
  2. NotaryCam
  3. Pavaso
  4. DocVerify
  5. Nexsys

Training

The WDFI requires any notary wishing to perform RON to undergo training with the particular software platform they wish to use. The WDFI states, “That’s important, because [the providers’] platforms are capable of identity-proofing, credential verification, recording and retention, and other safeguards to ensure the integrity of the notarial process.”

Presently, Notarize.com and DocVerify (for notarizations of any type of document) and Pavaso (for real- estate transactions) are each offering online training opportunities for Wisconsin notaries. Once training is completed, these providers notify the WDFI that a notary is authorized to perform RON, and WDFI will maintain a database of notaries so authorized. WDFI also indicates that other providers may also be approved in the future.

Limits

RON is not without limits, and a notary is not able to accomplish any and all notary acts remotely. Specifically, Act 125 does not apply to:

(a) Any law governing the creation and execution of wills, codicils, or testamentary trusts.

(b) Any law governing the creation and execution of living trusts or trust amendments for personal use, not including a transaction, as defined in s. 137.11 (15).

(c) Any law governing the creation and execution of powers of attorney, not including a transaction, as defined in s. 137.11 (15).

(d) Any law governing the creation and execution of marital property agreements.

(e) Any law governing the creation and execution of powers of attorney for health care, declarations to physicians (living wills), and authorizations for use and disclosure of protected health care information.

Even with these limits, Act 125 provides for the efficient and effective execution of real estate documents and will help streamline transactions for businesses and individuals.

Conclusion

As we continue to encounter the challenges of a global pandemic, our reliance on technology will only increase. It is likely that ZOOM, Microsoft Teams, DocVerify and others will become a regular part of the practice of law. Many of these practices were inevitable, and the pandemic has accelerated their usage.

WILMIC will continue to monitor the issues, listen to insureds and provide guidance regarding these rapidly changing topics.

Matt Beier

Matt Beier is a Business Development Manager and a Claims Attorney with Wisconsin Lawyers Mutual Insurance Company (WILMIC), and works to investigate, evaluate and resolve claims as efficiently as possible. He can be contacted via e-mail or by calling (800) 373-3839 ext. 221.