South Dakota’s strides into the digital age continue to change the way financial institutions do business. Last month, our e-newsletter highlighted changes to the Uniform Electronic Transactions Act (UETA) to allow for legal recognition of blockchain as an electronic transaction or signature. In this month’s edition, from Davenport Evans lawyer Olivia R. Karns, we feature recent changes to notary laws which allow for remote notarization.

SD House Bill 1272, an Act to provide remote notarization, became effective in South Dakota on July 1, 2019. It allows a notary to notarize a document which was executed by an individual who was not in the notary’s physical presence at the time the document was signed. Instead, the individual may execute the document remotely, so long as they appear before the notary by means of “communication technology” when signing.

“Communication technology” is defined as “an electronic device or process that allows a notarial officer and a person not in the physical presence of the notarial officer to communicate with each other by sight and sound.” This definition likely includes programs such as FaceTime®* and Skype. The notary must also be capable of verifying the person’s identity “through dealings sufficient to provide reasonable certainty that the person has the identity being claimed.”

Once the document has been executed remotely, the notary must affix her signature to the original tangible document executed by the person who had appeared remotely. The notary must also swear to three specific items in her certificate: (1) the remote location of the individual who executed the document; (2) “[t]hat the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of communication technology”; and (3) that the notary was “reasonably [able] to confirm that the document before the notarial officer [was] the same document in which the person made the statement or on which the person executed a signature.”

The requirements for the notarial seal largely remain the same under the new bill, except that the seal may be either a rubber stamp or “a physical device capable of affixing to or embossing on a tangible document.” If a physical stamp is used, it must contain the word “seal.” Lastly, the notarial officer must “indicate the date on which the notarial officer’s commission expires below the seal.” So, even as the law continues to adapt to a new digital era, it’s not time to shelve those clunky stamps just yet.

If you would like more information, please contact Olivia Karns at [email protected] or 605-357-1266.

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Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.