Page 23 - BusinessWest July 10, 2023

two different types of identity-proofing processes or services;
• the notary public is able to execute the notarial act in a single, real-time
session;
• the notary public is reasonably able to confirm that a record before the
notary public is the same record on which the remotely located individual made a statement or on which the remotely located individual executed signature; and
• the notary public, or a person acting on their behalf, creates an audio-visual recording of the performance of the notarial act.
Notable Distinctions in the Act
While Chapter 2 of the Acts of 2023 revises relevant sections of the act to continue to allow notarization via electronic means, there are notable distinctions in the revisions.
The Acts of 2023 allow for electronic notarial seals. The notary public can attach the notary’s electronic signature and electronic seal to an electronic record using a digital certificate in a manner that is capable of independent verification and renders any subsequent modification to the electronic document evident.
The Acts of 2023 allow for remote notarizations with technology approved by the secretary of the Commonwealth. A notary public may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. Any technology approved by the state secretary and selected by the notary require the notary’s electronic signature and electronic seal to be:
• unique to the notary public;
• capable of independent verification;
• retained under the sole control of the notary public; and
• attached to or logically associated with the electronic record in a tamper-
evident manner.
The Acts of 2023 create a registry for individuals seeking to notarize
documents electronically. Before a notary public performs the initial notarization using communication technology, the notary public must register as a remote notary with the state secretary, inform the state that they intend to perform remote notarization, and identify the technology that will be used. The state secretary will create and maintain a registry of service providers who meet the established standards.
The Acts of 2023 require that notaries be located in the Commonwealth of Massachusetts. A notary public physically located in the Commonwealth may perform a notarial act using communication technology for a remotely located
individual if the notary public meets the above-referenced criteria.
The Acts of 2023 require attorney-managed closings for one to four residential
homes. However, this does not extend to commercial transactions. With respect
to any document executed in the course of a closing, only a notary public who
is an attorney licensed to practice law in the Commonwealth, or a non-attorney under the direct supervision of the attorney managing the closing, will be able
to perform an acknowledgment, affirmation, or other notarial act utilizing communication technology. Many of the activities that are necessarily included in conducting a real-estate closing constitute the ‘practice of law,’ and, as a result, the person performing them must be an attorney.
Finally, pursuant to the Acts of 2023, notaries must retain electronic records for a period of 10 years.
Future Implications
Naturally, one may consider what else is to come moving forward due to these revisions. The remote online notarization bill will go into effect on Jan. 1, 2024.
Pursuant to the Acts of 2023, the state secretary may require the completion of a course to address the duties, obligations, and technology requirements
for conducting remote notarizations offered by the state secretary or vendors approved by the state secretary. However, if such a course is required, its duration will not exceed three hours.
In the event that this course is required, it must be successfully completed prior to notarizing any documents electronically. Most notably, certification of completion of the course would be a requirement in addition to registration with the state secretary.
The Commonwealth is no doubt following a growing trend in permanently solidifying the virtual notary revisions made in response to COVID. In doing so, it will allow both permitted attorneys and paralegals alike increased flexibility in the notarial act required when executing documents. Overall, this legislation will allow a streamlined process for attorneys and their clients in addition to the cost benefit.
While the Acts of 2023 are sure to continue evolving, it is imperative to stay informed regarding further changes, and it is our continued attention to this legislation that will allow us to provide the insight you may need ahead of the curve. BW
Sarah Federation is an associate, and Jeffrey Fialky a shareholder, at Bacon Wilson.
A SNEAK PEEK AT THE NEXT ISSUE
BusinessWest
July 24TH
Editorial Focus:
• Banking & Finance • Building Trades • The Creative Economy • Food &
Lifestyle • Commercial Real Estate • Professional Development Series
Lists:
• Banks
• Electrical Contractors
Community Spotlight:
• West Springfield
DEADLINE: July 7th
Kate Campiti 413.781.8600 x106 [email protected]
Kathleen Plante 413.781.8600 x108 [email protected]
RESERVE YOUR SPACE TODAY!
A local, full-service firm, here for you
When Life Gets LegalSM
SPRINGFIELD AMHERST HADLEY NORTHAMPTON WESTFIELD
• Trusts & Estates
• Estate Planning & Elder Law • Long-Term Care Planning
& Special Needs
• Bankruptcy & Reorganization • Residential &
Commercial Real Estate • Injuries & Accidents
• Mediation & Alternative • Dispute Resolution
• Landlord/Tenant Issues
• Employment Law
• Workers’ Compensation
• Domestic Relations & Family law • Land Use & Zoning
• Cannabis
• Banking & Commercial Finance • Business & Corporate
• Municipal
413.781.0560 \ BaconWilson.com
BusinessWest << LAW >> JULY 10, 2023 23