ME Executive Order (2020)

Executive Order

State: Maine
Signed: April 09, 2020

Effective: April 09, 2020

Summary

Maine Governor Janet Mills issued Executive Order 37 temporarily allowing Maine Notaries to perform notarial acts for remotely located individuals during the COVID-19 state of emergency.

Affects

All Maine Notaries Public.

Changes

Authorization, Limitations, and Expiration

Clarifies that the executive order authorizes remote, not electronic, notarization.
Requires that all requirements under Maine law pertaining to the taking of sworn statements and acknowledgments by Notaries and those authorized to perform notarial acts, other than the requirement to appear in person, remain in effect during the effective period of the executive order.
Applies to all provisions of Maine law that require a signature to be acknowledged, witnessed or notarized in person, with the exceptions of (a) solemnizing marriages, (b) administering oaths to circulators of state or local direct initiative or referendum petitions and nomination petitions of candidates for electoral office, and (c) absentee ballots in state and local elections.
Provides that with the exceptions, as noted, the enforcement of those provisions of Maine law that require the physical presence of the person whose oath is being taken at the same location as the Notary Public or other person authorized to perform a notarial act and any witness to the signing are suspended provided several conditions set forth below are met.
Takes effect on April 8, 2020, and, unless sooner amended or rescinded, terminates 30 days after the termination of the COVID-19 state of emergency.

Standards for Remote Notarial Acts

Clarifies that any document that is required under any Maine law to be notarized "in the presence and hearing" or similar language of a signatory, and that is signed, notarized or witnessed in accordance with the terms of the executive order is deemed to have been signed and/or notarized in the presence and hearing of the signatory.
Clarifies that the executive order does not require a Notary to perform remote notarizations.
Requires the Notary to be physically within Maine while performing the notarial act and to follow any additional guidance for remote notarization issued by the Maine Secretary of State.
Requires the act of notarization or witnessing required by Maine law to be completed remotely via two-way audio-video communication technology, provided that: (a) The two-way audio-video communication technology allows direct contemporaneous interaction between the individual signing the document, the Notary and any witness by sight and sound in real-time (e.g. with no pre-recordings). (b) The signatory must be reasonably identified by the Notary by one or more of the following: The Notary’s personal knowledge, a valid photo identification presented to the Notary during the video conference; or the oath or affirmation of a witness who is in the physical presence of either the Notary or the signatory or is able to communicate with the Notary and the signatory simultaneously by sight and sound through an electronic device or process at the time of the notarization if the witness has personal knowledge of the individual and has been reasonably identified by the Notary through personal knowledge or a valid photo identification presented to the Notary during the video conference.
Requires the signatory to attest to being physically located in Maine and affirmatively state the name of the county in which the signatory is located at the time of execution during the two-way audio-video communication.
Requires the Notary and any witness to attest to being physically located in Maine during the two-way audio-video communication
For wills and powers of attorney, requires the Notary or at least one witness to be an attorney licensed to practice law in the State of Maine.
Requires the Notary to be able to view by camera the entire space in which the signatory and any witness is located, and any person who is present in those spaces must state their name while on video and in clear view of the Notary before any documents are signed.
Requires the signatory to affirmatively state on the two-way audio-video communication what document the signatory is signing and provide the Notary with a copy of the document prior to the signing.
Requires each page of the document being witnessed to be shown to the Notary and any witness on the two-way audio-video communication in a means clearly legible to the Notary and initialed by the signatory in the presence of the Notary and any witness.
Requires the act of signing and initialing to be captured sufficiently up close on the two-way audio-video communication for the Notary to observe.
Authorizes any witness or witnesses required or permitted to properly execute any original document or documents according to Maine Law to similarly witness the signing of the document by the signatory utilizing two-way audio-video communication and to sign as a witness to the document upon receipt of the original document.

Transmission and Mailing of Original Document

Requires the signatory to transmit by fax or electronic means (which may include transmitting a photograph of every page by cellphone) a legible copy of the entire signed document directly to the Notary and any witness, immediately after signing the document, or, if that is not possible, no later than 24 hours after the signatory signs the document.
Requires the Signatory to send the original signed document directly to the witness within 48 hours (or 2 days) after the signatory signs the document, or to the Notary if no witness is involved.
Requires the witness to sign the document within 48 hours after receiving the original document from the Signatory, and sent it to the second witness, if any, or to the Notary if no other witness is involved.
Clarifies that the official date and time of each witness's signature is the date and time when the witness witnesses the signatory's signature via the two-way audio-video communication technology.

Certificate of Remote Notarial Act

Requires the Notary, upon review of the original document and satisfactory comparison with the faxed or electronic document provided on the date of signing, to notarize the original document within 48 hours of receipt, and clarifies that the official date and time of the notarization shall be the date and time when the Notary witnessed the signature via the two-way audio-video technology.
Requires the Notary to add the following language below the Notary and or Witness signature lines: "Notarized (and/or Witnessed) remotely, in accordance with Executive Order 37 FY 19/20".

Records of Remote Notarial Acts

Requires a recording of the two-way audio-video communication to be made and preserved by the Notary for a period of at least 5 years from the date of the notarial act.
Requires the Notary to provide a copy of the recording to the signatory and the Secretary of State upon request.

Legal Validity and Recognition of Remote Notarial Acts

Provides that the validity and recognition of a notarization or witness under the executive order shall not prevent an aggrieved person from seeking to invalidate a record or transaction that is the subject of a notarization or from seeking other remedies based on Maine or Federal law other than the order for any reason not addressed in the order, such as incapacity, absence of authority or undue influence.
Clarifies that the failure of a Notary or a witness to meet a requirement specified in the order shall not invalidate or impair the recognition of a notarization performed by the Notary if it was performed in substantial compliance with the order.
States that the Governor intends further that the acts, records and proceedings under the executive order receive full faith and credit in the courts of the United States and other states.

Other Provisions

Authorizes the Secretary of State to issue guidance consistent with the executive order to protect the integrity of the remote notarization process.
Clarifies that since a primary and essential purpose of the executive order is to safeguard the integrity of transactions and the important personal interests served by those transactions, persons who violate the rights of others during a remote notarization are subject to all pertinent civil remedies and criminal penalties.
States that a copy of the executive order shall for notice be provided to the Chief Justice of the Maine Supreme Judicial Court.

Analysis
Maine Governor Mills has issued a lengthy and detailed executive order that temporarily allows Maine Notaries to perform notarial acts on paper documents for individuals who are remote to the Notary. The very detailed provisions are intended to ensure the integrity of these notarial acts and recognition by all persons, businesses, and states who receive and rely on them. The order clarifies immediately that the notarization process involves paper documents only. Thus, the order also would mandate the use of video conference technologies and not full-fledged remote online notarization platforms. The order requires many of the same process steps as similar orders in other states. This Maine order does not apply to marriages, which Maine Notaries may perform. It also doesn't apply to absentee ballots and oaths required for initiative, referendum, and nomination petitions.

Read the Executive Order 37.

The authorization in this Order took effect on April 8, 2020, and terminates 30 days after the termination of the COVID-19 state of emergency. The following Proclamations have renewed the State of Civil Emergency.

On June 23, 2021, the Maine Legislature passed and the Governor approved House Paper 1033, which extends most of the provisions of Executive Order 37 and proclamations extending the Order until January 1, 2023. To read about this new law, refer to the NNA's new law update.