Regulation changes help notaries during pandemic

Most notaries public may have to stay home right now because of the COVID-19 pandemic, but they can continue to notarize documents from home without face-to-face contact.

That’s because among the many executive orders Gov. Andrew M. Cuomo has issued since the pandemic struck New York are several that lift the in-person requirements for notaries to witness documents.

Some of the provisions of the orders are:

• Notaries may conduct the process over video teleconferencing.
• The person signing the document must show a photo ID by way of the teleconferencing as they sign.
• Producing a copy of ID, or signing the document before or after the teleconference instead of during the conference is not allowed.
• The document being signed must be transmitted to the notary by email, fax machine or other means within 24 hours of the video conference.

These rules should make notarizing a document easier in the face of social-distancing, said Richard A. Marchese, but they may not help for the population his practice is concerned with — elderly people in long term care. Marchese is a partner at Woods Oviatt Gilman LLP, overseeing the firm’s Elder Law and Health Care Practice Group. He’s also a notary public.

“The issue really for people in facilities is the access to technology,” Marchese said.

“A lot of elderly people are just not technologically adept at using iPhones or iPads or video conferencing. They’re just not going to do it,” he said. “For people in facilities, we really have to rely on the facility itself to set up this technology, to bring an iPad into the room. Normally they would probably bring the resident from their room into a conference room. I don’t think they’re doing that. With short staff and the stress they’re under, I think it‘s going to be a challenge to get this done.”

Since the pandemic and rules to prevent its spread went into effect locally, family members are not allowed to visit nursing homes.

The upshot is there may not be anyone to help the client operate the technology, or to fax or email the document within 24 hours, he said. Marchese said he had been receiving calls from worried clients who are unable to even reach their parents in their nursing home residences by telephone.

Marchese often notarizes power of attorney documents, which require more than a simple signature.

“For a power of attorney, it’s a little more difficult, because they have to initial boxes,” he said, adding, “the current power of attorney form can be up to 11 pages long, so it requires time.”

Even before the new executive orders, the law allowed a loved one to help a person with, say, Parkinson’s Disease or a traumatic brain injury, by steadying their hand, and indicating the many places where initials are required.

Speaking Monday morning, Marchese said he hadn’t yet tried to notarize documents by way of video conferencing, though he said he should be able to do it easily, using Facetime on his mobile phone.

For many clients who aren’t in the situations he described, the option of video conferencing may work just fine.

In any case, Marchese said the elder law and special needs section of the New York State Bar Association is continuing to lobby for additional changes in the regulations that would address the technical difficulties.

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