Member Article

On Wednesday, April 8, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-41 (the “Order”), which relaxes the witness and notary requirements for documents that would otherwise require in-person witnessing and/or notarization, such as Michigan estate planning documents, executed during the Coronavirus/COVID-19 pandemic. In particular, if certain requirements are met (details below), documents may be witnessed or notarized using two-way, real-time audiovisual technology.

The Order is significant as certain documents, in particular Wills, Patient Advocate Designations, and Durable Powers of Attorney, are normally required under Michigan law to be witnessed “in the presence of” two witnesses. In light of prior executive orders issued by the Governor, including the prohibition of all public and private gatherings among persons not part of a single household, it has become challenging to satisfy in-person witnessing requirements. This is especially true for Patient Advocate Designations, where most close family members are prohibited from serving as witnesses. By permitting witnesses and notaries to take advantage of technology, the Order permits estate planning and other important documents to be executed while maintaining compliance with social distancing guidelines.

Relaxation of Notarization Formalities

The Order provides that a Notary Public may notarize a principal’s signature without being physically present at the time a document is signed provided that the following requirements are met:

1. The Notary Public and the principal whose signature is to be notarized must utilize two-way real-time audiovisual technology, which must allow direct interaction by both sight and sound between the Notary Public, the principal and any witnesses;
2. The audiovisual method of communication must be capable of recording the signing process and a recording must be made and retained as a notarial record;
3. The principal must provide proof of identity (or be personally known) to the Notary Public during the videoconference. Proof of identification transmitted before or after signing will not suffice. This is also true of any witnesses whose signatures are being notarized;
4. The principal must affirmatively represent to the Notary Public that the principal is either physically located in Michigan or, if the principal is physically located outside of Michigan, that (1) the document being signed is intended to be filed with a court, governmental entity, public official, or other entity subject to Michigan’s jurisdiction or (2) the document involves property located in Michigan or a transaction substantially connected to Michigan;
5. If the principal is not physically located in Michigan and is signing the document under one of the exceptions provided, the Notary Public must have no actual knowledge that the principal’s act of making the statement or signing the document is prohibited by the laws of the state in which the principal is physically located;
6. The principal, witnesses, and Notary Public must be able to sign the document in a way which ensures that any subsequent changes to the document are evident;
7. The original or a copy of the document being signed must be transmitted to the Notary Public on the same day in which the principal signs the document. When the Notary Public receives the signed document, he or she may notarize the document and return it to the principal; and
8. The official date and time of the notarization shall be the time at which the videoconference during which the principal signed the document occurred.

Relaxation of Witness Attestation Formalities

The Order provides that, for any document which otherwise requires an in-person witness attestation to a principal’s signature, a witness may attest to the principal’s signature without being physically present at the time the document is signed, provided that the following requirements are met:

1. The witness and the principal whose signature is to be witnessed must utilize two-way real-time audiovisual technology, which must allow direct, contemporaneous interaction by both sight and sound between the witness and the principal;
2. The audiovisual method of communication must be capable of recording the signing process and a recording must be made and retained by the principal (or the principal’s designee) for a period of at least three years unless Michigan law requires a different period of retention;
3. The principal must affirmatively represent to the witness that the principal is either physically located in Michigan or, if the principal is physically located outside of Michigan, that (1) the document being signed is intended to be filed with a court, governmental entity, public official, or other entity subject to Michigan’s jurisdiction or (2) the document involves property located in Michigan or a transaction substantially connected to Michigan;
4. The principal must affirmatively state during the videoconference what document is being executed;
5. The title page and signature page of the document being signed by the principal must be shown to the witness by way of the two-way audiovisual conference in such a manner that the pages are clearly legible to the witness;
6. Each page of the document being signed must be numbered in such a manner that the page number and the total number of pages in the document is reflected (e.g., “Page 2 of 4”);
7. The act of signing must be sufficiently “up-close” for the witnesses to properly observe the act of signing; and
8. The principal must transmit the signed document to the witnesses within 24 hours of signing. The witnesses must, in turn, sign the document attesting to the principal’s signature and return the signed copy to the principal within 24 hours of receipt.

Signing in Counterparts

Absent any prohibition in the document to be signed to the contrary, any document executed in accordance with the Order may be signed in counterparts.

Obligations Placed on Financial Institutions and Registers of Deeds

For the duration of the Order, no financial institution or register of deeds may refuse to accept a tangible copy of an electronic record executed pursuant to the Order for lack of original signatures. However, such institution or register may require the Notary Public before whom the document was executed to certify that the tangible copy submitted to such institution or register is an accurate copy of the document.

Duration of the Order

The Order is effective as of the date of issuance (April 8, 2020) and will expire at 11:59 PM on May 6, 2020.

Practical Considerations

Although the Order permits the use of videoconferencing to execute documents which would otherwise require in-person witnessing and notarization (such as estate planning documents), those choosing to sign documents in this manner should consider remote witnessing and notarization as a temporary solution and may want to consider re-executing any documents signed using remote witness attestation or notarization after the cessation of the state of emergency in a manner complying with normal witnessing and notarization formalities.

For more information regarding Michigan Executive Order 2020-41 or options for executing an estate plan or estate plan update, please contact Rob Tiplady (734-214-7644 or [email protected]), Tony Frasca (734-214-7614 or [email protected]), Michael Cumming (248-203-0740 or [email protected]), Marie Deveney (734-214-7662 or [email protected]),Tyler Kemper (734-214-7694 or [email protected]), or your Dykema relationship attorney.