Social Distancing Forces Modernization of Kansas Notary Laws

Disclaimer: Executive Order No. 20-20 authorizes virtual notarizations until May 1, 2020, or until the State of Disaster Emergency related to COVID-19 expires in Kansas, whichever is earlier. On April 15, 2020, however, Governor Kelly signed Executive Order No. 20-24, extending the statewide Stay-at-Home Order to expire on May 3, 2020. In light of the Stay-at-Home Order’s extension, it is likely that the expiration of other executive orders related to COVID-19, such as Executive Order No. 20-20, will be extended as well.

As the novel virus COVID-19 spreads throughout the country, states are finding new ways to navigate the necessities of stay-at-home orders using technology.  Kansas recently joined its neighboring states in temporarily allowing virtual notarizations. ¹ This authorization comes from Executive Order No. 20-20, signed by Governor Laura Kelly on April 9, 2020. ² The Kansas Bar Association, along with the Kansas Secretary of State’s Office, Kansas Bankers Association, and the Kansas Land Title Association, advocated for the Order, noting that “[a]llowing virtual notarization will protect the health and well-being of lawyers and clients, while enabling wills, powers of attorneys, and other personal and business transactions to continue.” ³

Under the Order, the signatory must communicate with a notary and/or witnesses via audio-video technology. ⁴ All parties involved must be located within the state of Kansas, the notary or witness must be able to identify the signatory, and the notary or witness must be able to clearly see and read the document being signed. ⁵ The Kansas Secretary of State is to supply further guidance for virtual notarizations. ⁶

Kansas generally disfavors online notarizations, as state law requires physical appearances in notarizations. ⁷ If a notary does not adhere to the physical presence requirement, the notary may be subject to “criminal and civil liability and the loss of the notary’s commission.” ⁸ Executive Order 20-20 suspends the in-person notarization requirements under K.S.A. 53-503, allowing virtual notarizations until May 1, 2020, or until the State of Disaster Emergency related to COVID-19 expires in Kansas, whichever is earlier. ⁹

Prior to the COVID-19 outbreak, nearly half of states in America, excluding Kansas, authorized virtual notarizations. ¹⁰ Those in favor of virtual notarizations argue that they allow more access to notary services and provide access for those who are homebound or in hard-to-reach geographical areas. ¹¹ Opponents argue that virtual notarizations will open the door to fraud and privacy concerns. ¹²

There is a federal push to authorize virtual notarizations.  Senators Kevin Kramer (R-N.D.) and Mark Warner (D-Va) introduced Senate Bill 3533, known as the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (the “SECURE Act”), which would allow every U.S. notary to provide virtual notarization services. ¹³ This legislation was introduced on March 18, 2020. ¹⁴

It remains unseen whether the SECURE Act will pass or if Kansas will continue to recognize virtual notarizations beyond the Emergency Proclamation.  For now, Executive Order 20-20 will provide a trial-period for virtual notarizations in Kansas.

1. Announcement from Mira Mdivani, President, Kansas Bar Ass’n (Apr. 9, 2020), https://myemail.constantcontact.com/Virtual-Notary-in-Kansas—Update-from-KBA-Covid-19-Taskforce.html?soid=1123887941892&aid=r-gZaX5df6s [hereinafter KBA Announcement].
2. Kan. Exec. Order No. 20-20 (Apr. 9, 2020), https://governor.kansas.gov/wp-content/uploads/2020/04/EO-20-20-Executed.pdf.
3. Mdivani, supra note 1.
4. Kan. Exec. Order No. 20-20, supra, note 2.
5. Id.
6. Id.
7. Kan. Stat. Ann. § 53-503 (WEST 2020).
8. Kansas Sec’y of State, Kansas Notary Public Handbook, 19, http://www.sos.ks.gov/forms/administration/NotaryHandbook.pdf (last visited April 13, 2020).
9. Kan. Exec. Order No. 20-20, supra, note 2.
10. Theodora McCormick, The Race to Embrace Remote Online Notarization (“RON”) in Response to the COVID-19 Pandemic, The Nat’l L. Rev. (Mar. 31, 2020), https://www.natlawreview.com/article/race-to-embrace-remote-online-notarization-ron-response-to-covid-19-pandemic.
11. David Thun, The State of Remote Online Notarization, The National Notary Association (Nov. 19, 2019), https://www.nationalnotary.org/notary-bulletin/blog/2019/11/the-state-of-remote-online-notarization.
12. Michael Lewis, Webcam Notarizations: Redefining Personal Presence Or Opening The Door To Fraud?, The National Notary Association (July 16, 2013), https://www.nationalnotary.org/notary-bulletin/blog/2016/07/webcam-notarizations-redefining-presence-or-fraud.
13. McCormick, supra note 11.
14. Id.