Michigan Amends Provisions Regarding Notaries
The state of Michigan amended its provisions with an amendment relating to notaries that include updates to definitions as well as the electronic notarization of documents. The amendment is effective immediately; compliance is effective on March 12, 2019.
The amendment defines the following terms: “credential analysis,” “electronic notarization system,” “electronic signature,” “identity proofing,” “remote electronic notarization platform” and “state” and modifies the following definitions: “acknowledgment,” “electronic,” “information,” “in a representative capacity,” “in the presence of,” “notarial act,” “person,” “official misconduct,” “record,” “secretary,” “signature,” “suspension” and “verification upon oath or affirmation.”
The amendment authorizes the Secretary of State to develop and implement an electronic application and payment process for individuals who are seeking appointment as a notary.
The amendment allows a notary public to select one or more tamper-evident electronic notarization systems to perform notarial acts electronically and prohibits anyone from requiring a notary to perform an electronic notarial act with an electronic notarization system that the notary has not selected.
The amendment requires a notary to inform the Secretary of State that he or she would be performing notarial acts electronically, prior to performing his or her initial public notarial act electronically and also requires the notary to identify the electronic notarization system the he or she intends to use foe electronic notarizations.
If the Secretary of State and Department of Technology, Management, and Budget has approved the use of one or more electronic notarization systems, the notary must select the system he or she intends to use from the from the approved electronic notarization systems. The amendment also provides that the Secretary may disallow the use of an electronic notarization system if the system does not satisfy the criteria under Section 26A.
The amendment requires the Secretary of State and Department of Technology, Management, and Budget to review and approve at least one electronic notarization system for the performance of electronic notarizations in the state by March 30, 2019. The Secretary of State and Department of Technology, Management, and Budget may approve multiple electronic notarization systems, and may allow approval of additional electronic notarization systems on an ongoing basis.
The amendment requires the Secretary of State and Department of Technology, Management, and Budget to review the criteria for approval of electronic notarization systems and whether currently approved electronic notarization systems remain sufficient for the electronic performance of notarial acts, at least every 4 years.
The amendment provides the following minimum set of standards by which the Secretary of State and Department of Technology, Management, and Budget will approve electronic notarization systems: (a) the need to ensure that any change to or tampering with an electronic record is evident; (b) the need to ensure integrity in the creation, transmittal, storage, or authentication of electronic notarizations, records, or signatures; (c) the need to prevent fraud or mistake in the performance of electronic notarizations; (d) the ability to adequately investigate and authenticate a notarial act performed electronically with that electronic notarization system; (e) the most recent standards regarding electronic notarizations or records promulgated by national bodies, including, but not limited to, the National Association of Secretaries of state; and (f) the standards, practices, and customs of other jurisdictions that allow electronic notarial acts.
The amendment provides that if an electronic notarization system is approved or certified by a government-sponsored enterprise, the Secretary and the Department of Technology, Management, and Budget shall approve the system if verifiable proof of that approval or certification is provided to the Secretary and Department, unless the use of the system is affirmatively disallowed by the Secretary.
The amendment requires a notary to include to include on each record whether the act was performed using an electronic notarization system under Section 26b. ffff
Rhona Kyeyune, LLM, is a regulatory compliance consultant with CLA. She is a graduate of Makerere University and earned her master of laws at Boston University School of Law.
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