You may already know a bit about notaries. That’s when you have to show your driver’s license and sign a piece of paper so the person who pretended they were a bouncer while looking at your ID can put a stamp on the paper confirming that you are you. Or as the Wisconsin Department of Financial Institutions (“DFI”) puts it: A notary public is an individual issued an appointment by the Secretary of the Department of Financial Institutions to serve the public as an impartial witness, performing notarial acts as are allowed or required by law.
Usually, this is done in person. You show me your ID, you sign. I sign and stamp. Easy peasy. Until it isn’t. 2020 was full of times it wasn’t easy to do this. Luckily, Wisconsin already had the process started to allow Remote Online Notarization (RON).
Remote online notarizations are subject to several “requirements and safeguards to ensure that the notarial acts are accurate, authentic, adequately preserved, resistant to tampering.” And of course, “[c]ertain communication technology providers offer software platforms designed to meet those standards, and some of those providers have sought and received authorization for use by Wisconsin notaries public.”
If you are like me, you read that as, “We are going to make you use software that will charge you money so you comply.” And you would be correct. DFI maintains a list of providers that have been approved for use by Wisconsin notaries and will happily charge you for the privilege.
Specifically, they charge you so that you are sure that you meet the requirements for Remote Online Notarization. Under Wisconsin law, a notary performing notarial acts for remotely located individuals must do all the following:
● Utilize technology that allows the notary and the remotely located individual to communicate with each other simultaneously by sight and sound.
● Utilize technology that allows the notary to confirm that the record before the notary is the same record in which the remotely located individual made a statement or executed a signature.
● Ensure that the technologies are tamper-evident, such that any change to a record generates evidence of the change.
● Perform two acceptable types of identity proofing for those notarial acts that require it.
● Capture an audio-visual recording of the performance of the notarial act, which the notary or the notary’s agent must retain for at least seven years.
● Only utilize technologies that are approved for use by the Wisconsin Department of Financial Institutions and Remote Notary Council.
There are more specifics for much of the above, and, the notarial certificate must include the following statement: “This notarial act involved the use of communication technology.” But you get the gist. We want to make sure you are you before I notarize something for you, and that we can prove it later (though I don’t have to be able to record it if I sign in person).
Does this sound a lot like Zoom + DocuSign to you, too? Yeah, but it’s special so we get to pay for a new subscription. But don’t worry, I’m allowed to charge you more for the privilege, too. Noooo, I’m not salty at all about this…<sarcasm font needed>
So yes, some things can be notarized without an in-person meeting, but not everything. Wisconsin law does not authorize notaries to perform remote online notarial acts relating to any of the following:
● 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, declarations to physicians (living wills), and authorizations for use and disclosure of protected health care information.
● The creation and execution of marital property agreements.
● The administration of an oath before a witness at a deposition.
● Notarial acts for individuals located outside the United States, unless the record that is the subject of the notarial act concerns property located within the U.S., a transaction substantially connected to the U.S., or a matter before a public official, court, governmental entity, or other entity subject to U.S. jurisdiction. Also, the individual must not be prohibited from remotely making the statement or signing the record under the law of wherever he or she is currently sitting.
Thank you for letting me rant just a tiny bit about the fact that notarizations are slowly tip-toeing their way into the recognition that not everything has to be done it person, but if we want to do it, be ready to subscribe to the future. Now get off my lawn, my subscription lawn service will be here any minute!