How to Notarize Documents and Administer Oaths During the Coronavirus Crisis

Mar 21, 2020 | Elijah B. Van Camp

Many businesses rely on notarization of documents as part of their day-to-day practice.  This has typically required customers, clients and employees to formally sign official documents in the physical presence of a notary public, who then certifies the document.  However, given current health guidelines and social distancing efforts, in-person notarization doesn’t make sense for many businesses.  Financial institutions, real-estate companies, and law firms, among other impacted businesses, should be aware of their options to obtain notarizations remotely.  Keep in mind that these topics are rapidly evolving due to the COVID-19 public health emergency. 

Remote Online Notarization

A number of states have recently passed laws allowing for remote online notarization, where none of the parties need to be in the same room with each other, and documents can be notarized through a completely online process.  This includes at least Wisconsin, Minnesota, Virginia, Texas, Nevada, Montana, Ohio and Tennessee.  Governor Tony Evers just signed Wisconsin’s version of such a law, 2019 Wisconsin Act 125, at the beginning of March 2020.  The text of the law can be found at Wis. Stat. § 140.145.  Originally, Act 125 was not scheduled to go into effect until May 1, 2020.  However, as of March 18, 2020, the Wisconsin Department of Financial Institutions (DFI) announced that remote online notarization is available immediatey due to the COVID-19 public health emergency.  In part, DFI has provided the following emergency guidance:

Under current law, a person seeking notarization must “appear[] before” a notary public, and certain types of notarized documents (like wills and health care powers of attorney) must be signed in the “presence” or “conscious presence” of witnesses.  Those statutes don’t specify whether the appearance must be in person.  We “avoid statutory interpretations that lead to absurd results,” and it would be absurd to construe those statutes to require in-person appearances in the time of a global pandemic.  People’s lives are at stake.

Many states around the country already permit notarizations to be performed remotely by trained online notaries who utilize regulated remote notary technology providers.  During this unprecedented crisis, Wisconsin will permit them as well.

Notably, DFI’s emergency guidance appears to permit remote notarization in more circumstances than are contemplated by Wisconsin’s Act 125.  Section 140.145 of the Wisconsin Statutes specifically excludes remote online notarization in certain categories, including:

  •  Administration of oaths in depositions;
  • The creation and execution of wills, codicils, or testamentary trusts;
  • The creation and execution of living trusts or trust amendments for personal use;
  • The creation and execution of powers of attorney;
  • The creation and execution of powers of attorney for health care, living wills, and authorizations for use and disclosure of protected health care information.

However, given that the law is not yet in effect, and DFI’s emergency authorization and recognition that “[p]eople’s lives are at stake,” it appears that remote online notarization will be permitted in a broad variety of contexts.  This authorization is not limitless, however, and may be impacted by additional requirements for certain documents.  DFI’s emergency guidance provides a note of caution:

You still need to comply with the legal requirements for the document you need to notarize.  A document that needs additional witnesses or an attorney when notarized in person still needs them to be present wen the document is notarized online; the only difference is they can now participate remotely via an approved provider’s online platform.  Before using remote notarial services for any land transaction, you should check with your title company whether the remote notary provider is approved for insurance purposes.

If businesses are unsure whether remote notarization is permitted for a specific document, they should consider consulting an attorney for guidance. 

At DeWitt LLP, our offices in Wisconsin and Minnesota are currently in the process of obtaining authorization to conduct remote online notarizations to better serve our clients, and expect to have that capability shortly.

Administration of Oaths for Depositions

Wisconsin law does not currently explicitly permit court reporters to administer witness oaths remotely.  However, the legal landscape is changing almost hourly at this point, and the reality is that lawyers and court reporters will want to explore every alternative option before proceeding with in-person depositions. 

Until rules change, a temporary workaround is likely the most effective approach.  In advance of a deposition, the parties should reach a stipulation that an in-person oath is not required, and that the oath will be administered remotely.  That agreement can be repeated on the record at the start of the deposition.  The parties can also agree that after a transcript is prepared, the deponent will review and affirm the truth and accuracy of the transcript, and either the transcript itself or an accompanying affidavit may itself be notarized. 

If by the time of your deposition court reporters have not been specifically authorized to administer oaths remotely, note that attorneys who are also notaries public may also administer oaths in that capacity.  Attorneys, as officers of the court, may also be authorized to administer oaths pursuant to Wis. Stat. § 990.01(24). 

Rules regarding administration of oaths is expected to change rapidly.  Already, at least the Florida Supreme Court has authorized remote administration of oaths, and other states will likely follow suit.  In the meantime, following the approach described above will help remove the possibility that an opposing party will ever challenge the admissibility or propriety of deposition testimony.