On April 14, 2020, New Jersey Governor Murphy signed A-3903/S-2336 into law, allowing remote notarial acts during a Public Health Emergency and State of Emergency declared by the Governor, in Executive Order 103 of 2020. A.3903 can be found here.
This new law allows a Notary Public in New Jersey or an Officer authorized to take oaths, affirmations, and affidavits or acknowledgments under New Jersey law (for example, Attorneys at Law), to perform notarial acts using communication technology for a remotely located individual, temporarily during the COVID-19 crisis. The law has three primary requirements, as follows:
1. Identity of the Remotely Located Individual: The Notary Public or Officer must meet one of the following three requirements to meet proof of identity:
(a) Personal knowledge of the identity of the individual based upon dealings with that remotely located individual to provide reasonable certainty as to identity;
(b) Satisfactory evidence of the identity of the remotely located individual, by oath or affirmation from a credible witness appearing before the Notary Public or Officer; or
(c) Satisfactory evidence of the identity of the remotely located individual using at least two different types of identity proofing.
"Satisfactory Evidence” as used in the law typically includes a Passport, Driver’s License, or Government-Issued nondriver identification card, which must be current or expired within the last 3 years.
“Identity Proofing” as used in the law is defined as a process by which a third person provides the means to verify the identity of the individual.
2. Confirmation of the Record being Signed/Executed: The Notary Public or Officer must be reasonably able to confirm that the record before the Notary Public or Office is the same record in which the remotely located individual made a statement or executed a signature.
3. Audio-Visual Recording: The Notary Public or Officer must create an audio-visual recording of performance of the notarial act. We expect that the State Treasurer will provide further rules regarding the retention of these recordings.
This remote notarization process will require the use of communication technology that allows a Notary Public or Officer to communicate with the remotely located individual simultaneously, by sight and sound. If necessary, such technology can include communications with individuals who have vision, hearing, or speech impairment as well. The Notary Public or Officer will have to indicate, in the certificate or name affirmation, that “this notarial act was performed using communication technology.” This new law imposes additional requirements if the remotely located individual is located outside the United States.
This law is not permanent, as it only applies during an emergency such as the COVID-19 pandemic. However, proposals for remote notarization bills are not new to the New Jersey Legislature, as the Uniform Remote Notarization Act has been around for years and has been adopted by many states. In particular, A.3864 and predecessor bills have been pending before the Legislature, which if passed, would allow remote notarization even without a pandemic.
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