By Audra DePaolo
While social distancing is necessary to stop the spread of COVID-19, it has made the practice of law quite difficult. New Jersey courts are conducting most business remotely, and attorneys cannot meet with their clients in person. This has been particularly challenging in the area of estate planning, where clients need to sign documents in front of witnesses and, often, a notary.
Last week the New Jersey Legislature and Governor enacted a remote notary law, A3903. This law provides that, during the current public health emergency, attorneys, notaries, and other officials may notarize documents remotely using virtual technology. The law was effective immediately and will remain in effect until the Governor rescinds his Executive Order No. 103, which declared a public health and state of emergency due to COVID-19. Our New Jersey State and local bar associations worked diligently to ensure the passage of this law.
To use the remote notary law, the attorney or notary either must personally know the individual or have sufficient evidence of the individual’s identity from a credible witness. Alternatively, the notary or attorney may examine two types of identification to confirm the individual’s identity. The attorney or notary then must confirm that the document before him/her is the same as the one the individual has. Finally, the notary or attorney must create an audio-visual record of the notarial act and must preserve that recording for ten years.
The law may be utilized for the execution of healthcare directives/living wills, powers of attorney, and even wills and codicils. These documents, while always necessary, have become critical during the COVID-19 health crisis. The remote notary law is also applicable to other practice areas, such as contracts and real estate, with the exception of adoption, divorce, other family law, and certain UCC matters, which are expressly excluded.