CO Emergency Rules (2020)

Rule/Regulation

State: Colorado
Signed: March 31, 2020

Effective: March 31, 2020

Summary

Colorado Secretary of State Jena Griswold has adopted emergency rules to implement Governor Jared Polis' Executive Order temporarily authorizing Notaries to perform remote notarial acts.

Affects

8 Code of Colorado Regulations 1505-11.

Changes

Definitions

Defines “audio-video communication”, “outside the United States”, “‘real time’ or ‘in real time’”, “remotely located individual”, “remote notarization”, “remote notarization system”, and “remote presentation”.

Standards for Remote Notarial Acts

Requires a Notary who performs a notarial act for a remotely located individual by means of audio-video communication must be currently commissioned in the state of Colorado and located in the state of Colorado at the time the notarial act is performed.
Requires a Notary to perform a remote notarization only for a remotely located individual who is located in the state of Colorado.
Requires the certificate of notarial act for a remote notarization to, in addition to complying with the requirements of C.R.S. 24-21-515, indicate that the notarial act was performed using audio-video technology.
Clarifies that the provisions of C.R.S. 24-21-519, that relate to the security, inspection, copying, retention, and disposition of a Notary’s journal apply equally to the security, inspection, copying, retention, and disposition of audio-video recordings of remote notarial acts.
Provides that after the Notary performs the notarial act, the remotely located individual must transmit a legible copy of the record by fax, email, or other electronic means directly to the Notary on the same date that the act took place and the Notary must notarize the transmitted copy of the document as soon as received and transmit the same back to the person.
Prohibits Notaries performing remote notarization, mainstream videoconferencing technology companies and remote notarization vendors from using, selling, or offering to sell to another person or transferring to another person any personal information, including related to the individual or the transaction, obtained under Rule 5 that pertains to the remotely located individual, a witness to a remote notarization, or an individual named in a record presented for remote notarization, except: (a) As necessary to facilitate performance of a notarial act; (b) To effect, administer, enforce service, or process a record provided by or on behalf of the individual or the transaction of which the record is a part; (c) In accordance with Rule 5 or other applicable federal, state or local law; (d) To comply with a lawful subpoena or court order; or (e) In connection with a proposed or actual sale, merger, transfer, or exchange of all or a portion of a business or operating unit of the provider if the personal information concerns only customers or the business or unit and the transferee agrees to comply with the restrictions set forth in Rule 5.4.
Clarifies that a Notary may refuse to perform a notarial act if the Notary is not satisfied that the requirements of Rule 5 are met.

Technology Systems

Prohibits a Notary from using a remote notarization system to notarize: (a) A record relating to the electoral process; or (b) A will as defined under C.R.S. 15-10-201(59), except as required in accordance with Rule 5.2.9(c).
Requires a remote notarization system used to perform remote notarizations to be sufficient to: (a) Enable the Notary to verify the identity of the remotely located individual and any required witness by means of personal knowledge or satisfactory evidence of identity; (b) Enable the Notary to verify that the Notary, the remotely located individual, and any required witness are viewing the same record and that all signatures, changes, and attachments to the record made by the remotely located individual and any required witness are made in real time; and (c) Record the interaction such that the verifications may be clearly viewed at a later date.

Identification of Remote Signer

Requires a Notary to determine from personal knowledge or satisfactory evidence that the remotely located individual appearing before the Notary by means of audio-video communication is the individual that he or she claims to be.
Clarifies that a Notary has satisfactory evidence of identity if the Notary can identify the remotely located individual by means of audio-video communication by using at least one of the following methods: (a) The oath or affirmation of a credible witness who personally knows the remotely located individual, is personally known to the Notary or presents evidence of identity with government-issued identification as required by C.R.S. 24-21-507, and is in the physical presence of the Notary or the remotely located individual; (b) Remote presentation of a government-issued identification and the data contained on the identification of the remotely located individual as required by C.R.S. 24-21-507.

Provisions Related to Last Wills

Provides that if the record is a will, as defined under C.R.S. 15-10-201(59): (a) The original signed record must be presented to the Notary within 15 calendar days of the date of the remote notarization; and (b) Within three calendar days of receiving the signed record, the Notary must confirm that such record is identical to the record remotely notarized under Rule 5.2, and, if so, affix the Notary’s signature and seal on to the original signed record, reflecting the date of the remote notarization.
Clarifies that a will of a remotely located testator is not acknowledged in accordance with C.R.S. 15-11-502(1)(c)(ii), unless it is notarized pursuant to all the requirements of Rule 5.2.9(c).

Records of Remote Notarial Acts

Requires a Notary to record all remote notarizations in his or her Notary journal.
Requires a Notary to create an audio-video recording of a remote notarization and must: (a) First disclose to the remotely located individual the fact of the recording and the details of its intended storage, including where and for how long it will be stored; (b) Ensure that the remotely located individual explicitly consents to both the recording and the storage of the recording; and (c) securely store the recording for a period of ten years in compliance with C.R.S. 24-21-519.
Requires the audio-video recording to contain at the beginning of the recording, a recitation by the Notary sufficient to identify the notarial act that includes the name of the Notary, the date and time of the notarial act, a description of the document or documents to which the notarial act relates; the identity of the remotely located individual whose signature will be the subject of the notarial act, the identity of any person who will act as a credible witness, if required, to identify the signer; and the method or methods by which the remotely located individual and any witness, if required, will be identified to the Notary;
Requires the audio-video recording to contain a declaration by the remotely located individual that his or her actions before the Notary are knowingly and voluntarily made.
Requires the audio-video recording to contain an explanation by the Notary as to how the Notary knows the remotely located individual and for how long, if the remotely located individual for whom the notarial act is being performed is identified by personal knowledge.
Requires the audio-video recording to contain the following if the remotely located individual is identified by a credible witness: (a) A statement by the Notary as to how the Notary knows the credible witness and for how long the Notary has known the credible witness or evidence of identity using government-issued identification as required by C.R.S. 24-21-507; and (b) An explanation by the credible witness as to how the credible witness knows the remotely located individual.
Requires the audio-video recording to contain any other statements, acts, and conduct necessary to perform the requested notarial act.
Requires the Notary to make a good faith effort to only include the information required in rule 5.2.8(c) in the audio-video recording of the notarial act.

Analysis

On March 28, 2020, Colorado Governor Jared Polis issued Executive Order D 2020 019, suspending the requirement for personal appearance before a notarial officer as set forth in CRS 24-21-506. In order to implement this Order, Secretary of State Jena Griswold adopted emergency rules that set forth the procedures and requirements for performing these remote notarizations during the state of emergency due to COVID-19. It’s important to point out that the notarial acts envisioned are performed on paper and transmitted to the Notary by fax, email or other electronic means, and then the Notary prints the document out and signs and affixes the Notary’s seal to it before faxing, emailing or transmitting by other electronic means the document back to the signer. There are very specific provisions in the rule if the document to be notarized is a last will. In short, the Notary must receive the original will within 15 calendar days of the remote notarization, and then within 3 calendar days compare the original to the version that was remotely notarized. Upon doing so, the Notary must sign and affix the Notary’s seal to the original will with the date of the original remote notarization. The rules also contain some strict privacy requirements that the Notary and any technology vendor must follow.

Read the emergency rules.

On June 26, 2020, the Governor signed Senate Bill 20-096, which extended the temporary remote notarization laws until December 31, 2020, when the remote notarization provisions of SB 20-096 take effect. As a result, the Secretary of State readopted the emergency rules.

Read the readopted emergency rules.