Tuesday, August 4, 2020

Posted by: Charles Key on Aug 3, 2020

As of July 3, Tennessee Gov. Bill Lee had issued a total of 40 Executive Orders to assist Tennesseans in coping with various aspects of the coronavirus pandemic.[1] Among the problems addressed by these orders is the necessity of gathering signatories, witnesses and notaries public together in one room to achieve the proper execution of certain formal legal instruments, raising a concern about social distancing.[2]

Executive Order 26 was the first to address this concern, effective for the period April 9 through May 17. The accommodations offered by Executive Order 26 have now been extended through August 28 by Executive Order 52.[3]

A broad range of instruments may be executed within the scope of the Executive Order 52, expressly including a “trust, will, living will, durable health care power of attorney, durable power of attorney, deed, or other legal document.”[4] Executive Order 52 further provides that “any law”[5] requiring signatures in the physical presence of witnesses or a notary public “is hereby suspended to the extent necessary to permit remote notarization and remote witnessing” in accordance with the Order.[6]

Read carefully, each of the Executive Orders themselves provide what is essentially a detailed checklist of the steps that must be completed to achieve the valid execution of certain formal instruments.[7] As far as they go, the instructions provided in the Orders are reasonably straightforward. But the implementation of the Order also involves the use of unspecified technological resources to be determined by the lawyer, which can be challenging. The following paragraphs illustrate one way this can be done, in a situation in which the signatory is at the lawyer’s office and the notary is remote, is provided below. The reverse situation may be more common, and while this same approach could be adapted to that setting, it is the author’s hope that other Tennessee lawyers will share their thoughts and methods in these and other variable situations commonly presented.

Where the signatory is at the lawyer’s office and the notary is remote, the material resources required are: (1) a desktop or laptop computer with an internet connection; and (2) an iPad (or comparable tablet computer) with the Notability app[8] installed. If the signatory(ies) are remote, then the signatory(ies) will need an iPad and Notability to make this work the same way. This may not work if the signatory(ies) are remote and don’t have an iPad with Notability or don’t have the ability to email the document from the iPad back to the attorney.

With these tools, the steps required by the Order may be completed as follows:

• Put this statement on the Document: “This document was executed in compliance with Executive Order No. 26 by Tennessee Governor Bill Lee, dated April 9, 2020, as amended by Executive Order 37 by Tennessee Governor Bill Lee, dated May 12, 2020 and/or Executive Order 52 by Tennessee Governor Bill Lee, dated June 29, 2020.” I simply pasted this at the very end of the document, with the signatures.

• Assure that both the signatory(ies) and the notary are physically located in the State of Tennessee when they sign and notarize.

• At the time of signature, the signatory(ies) and the notary must be simultaneously able to hear and see one another, using some form of real-time audio and visual communication technology. I did this with a Zoom meeting, in which I pulled up the document in Zoom on my iPad following the technique described in https://www.youtube.com/watch?v=FGyG91ZMwa8. It is important that you start the Zoom meeting on your computer, then invite yourself via your iPad (or the signatory(ies) if they are remote via their iPads) to pull up the document.

• The notary must either know the signatury(ies) personally or require them to show a government-issued ID.

• The notary must “affirmatively identify on the real-time audio and visual communication the Document being executed.” This was easy with Zoom and Notability.

•  The notary must actually be able to see the signatory(ies) sign the Document. Again, was easy with the iPad technique above.

• After the signatory(ies) sign, they will need to email the document to the notary to sign and notarize. If this is done with a physical seal, the notary will have to print, sign, and stamp the document. Some may suggest that for wills, the signatory (testator) must also see the notary sign. That may be arguable, but to avoid any question, I would take that extra step for a will.

• Once signed, the notary and the signatory should each retain at their respective locations a separate counterpart of the document and signature page. Alternatively, the exchange procedure described in paragraph 3.g.ii of Executive Order 52 can be used.

As tedious as this may seem, after you work through it once, it’s really fairly simple to repeat.


SHARE YOUR KNOWLEDGE: Please take a minute to share your experiences and insights, so others may benefit.


NOTES

[1] The first such order, Executive Order 14, was issued March 12, 2020.  See https://sos.tn.gov/products/division-publications/executive-orders-governor-bill-lee.

[2] See Centers for Disease Control and Prevention recommendations at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

[3] See also Executive Order 37, effective May 18 through June 29, 2020.  Executive Order 52 is effective for the period June 30 through August 28, 2020.  Again, see https://sos.tn.gov/products/division-publications/executive-orders-governor-bill-lee.

[4] Executive Order 52, paragraph 1.a (emphasis added).

[5] Executive Order 52, paragraph 3, specifying that “any law“ includes, but is not limited to, “the common law, the provisions of Tennessee Code Annotated, Title 8, Chapter 16, and Titles 32, 34, 66, and 68, and any related rules.”

[6] Executive Order 52, paragraph 3.

[7] See helpful review by Newman Bankston, “How to Witness and Notarize Documents While Social-Distancing,” Tenn. Bar Journal, Vol. 56, No. 5, p. 26 (May 2020).  See also an update in Tenn. Bar Journal Volume 56, No. 6, p. 5 (June 2020).

[8] Notability a very useful and inexpensive tool for a lawyer and may be obtained from any online app vendor.

 

Charles KeyCHARLES KEY is senior counsel with LifeLinc Corporation, Memphis, which manages delivery of anesthesia services in hospitals, ambulatory surgery centers, and other locations in 25 states. He has an undergraduate degree in philosophy from Arkansas State University, a law degree from the University of Missouri-Columbia, and more than 38 years’ experience in healthcare. Key is a past chair of the Tennessee Bar Foundation Board of Trustees, the Tennessee Bar Association Health Law Section, and the Editorial Boards of the ABA publications The Health Lawyer and Stark & Antikickback Toolkit. He currently serves as an adjunct professor at the University of Memphis Cecil C. Humphreys School of Law.
 

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