The 2021 legislative year is over, and when it came to new state laws, Notary education and journals had a year unlike any other. Remote notarization continued to dominate the discussion in statehouses across the country, with a shift towards paper remote notarization as a new trend making waves. 2021 also produced some unusual Notary laws and laws that were the product of compromise. New laws in Alabama and Indiana are examples of this.
Notary education and journals
Recent years have seen an encouraging number of states establish a basic training requirement to obtain a Notary Public commission, to perform notarial acts using technology, or both. In addition, many states that have passed electronic and remote notarization laws in the past also required Notaries to keep a journal of those notarizations as well. Oddly, these laws often do not require a journal for paper-based notarizations, leading the NNA to write a Special Report advocating for states to enact Notary journals laws that apply to all notarial acts and not just to electronic or remote notarizations.
In 2021, five states — Illinois, Kansas, New Jersey, New Mexico and Wyoming — enacted a requirement for training and keeping a Notary journal. All but Kansas will require Notaries applying for a first-time or renewal commission to provide proof that they have completed an educational training course, while Kansas will institute the requirement for Notaries who perform remote notarizations only beginning January 1. All five states will require Notaries to keep a journal of notarial acts for all notarizations they perform.
No single Notary bill in recent memory scored what these five states did in 2021. These states considerably raised the bar for individuals performing notarial acts within their borders while ensuring all notarial acts are safeguarded by the protections of Notary journals.
Notary policy trends
Remote notarization remains the Notary policy trend of 2021 and the elephant in the room in legislatures across the country. In 2021, ten states — Alabama, Arkansas, Illinois, Kansas, New Hampshire, New Jersey, New Mexico, Oregon, West Virginia and Wyoming — enacted permanent remote notarization laws, the highest number since 2019. A bill in New York is currently awaiting the governor's approval. There now are thirty-nine states with permanent remote notarization laws and suddenly the discussion has shifted from the "haves" to the "have nots," with California and North Carolina among the remaining states and the District of Columbia still holding out.
But this year, remote notarization also saw the development of a new variant called paper remote notarization. In a paper remote notarization, the signing parties and Notary use communication technology to personally appear before each other while signing paper documents that are sent back and forth through postal mail. Prior to this year, only Montana and South Dakota had enacted laws explicitly allowing paper remote notarizations. Paper remote notarization gained attention in the spring of 2020, when several governors signed executive orders and multiple states passed emergency legislation temporarily authorizing "remote ink notarization" during the COVID-19 pandemic. While most of these temporary authorizations have expired, their influence lives on. In 2021, Alabama, Illinois, New Jersey, West Virginia, and Wyoming enacted laws allowing paper remote notarizations.
From a policy perspective, the NNA has several concerns with paper remote notarization. For example, we all but take it for granted today that a document signed and handed by the principal arm's length across the signing table to the Notary is the same document on which the Notary performs the notarial act. Not so with a paper remote notarization. Once the lights are dimmed and the camera cuts out, the document could be changed or swapped out before it is put in the mail, and no one can know for sure the Notary will be performing the notarial act on the same document the principal signed and mailed. The chain of custody of the document requiring the notarization is broken.
Despite concerns with the document custody and other issues that were the subject of an NNA Position Paper last year, the NNA believes more states will enact permanent paper remote notarization laws beginning next year.
Standout bills of the year
Of the nearly 260 individual legislative bills the NNA tracked in forty-nine states and the U.S. Congress in 2021, two stand out. Alabama Senate Bill 202 was without a doubt the most unique bill of the year. To obtain a license to practice pharmacy in Alabama, for years an applicant was required to include two recent photographs not larger than 2½ x 3¼ inches. The back of each photograph had to be certified by a Notary Public. Calls to the NNA Hotline by perplexed Notaries asking NNA staff what to do produced some interesting discussions over the years. "Just what am I supposed to certify?" and "How do I fit a proper notarial certificate with my full signature and seal on the back of a photograph this small?" Laws like Alabama's led the NNA to include a provision in our Model Notary Act prohibiting a Notary from certifying or authenticating a photograph, which was subsequently enacted in several states. We're all grateful the Alabama Legislature repealed this problematic law.
Indiana Senate Bill 204 was another piece of legislation that fortunately did not become law in the form its framers intended. Designed to authorize COVID-19 patients in isolation in ICU units to execute a medical advance directive, the bill dispensed with the requirement for the Notary or the two adults who witness the patient's signature to be physically present with the patient in isolation, and instead authorized the Notary and witnesses to use "telephonic presence" to notarize or witness the patient's signature. All the Notary or witnesses had to do was place a phone call to the patient in isolation and the notarization or witness statements on the advance directive could be validly completed. The NNA immediately enlisted the assistance of the Indiana Secretary of State's office for help in changing this bill. The bill sponsors agreed to take out the "telephonic interaction" provision for any notarization of an advance directive, while leaving it in if the patient had two adults witness the patient's signature. This compromise solution preserved the integrity of the notarization process for these critically important documents. As we move into 2022, the NNA will continue to monitor new state Notary bills, keep our readers updated on the latest developments in Notary legislation, and advocate for sound, ethical Notary practices. You can find information on new Notary bills for your state in our searchable Notary Law Database.
Bill Anderson is Vice President of Government Affairs with the National Notary Association.