Executive Order 04.09.20.01 was intended to suspend the purported requirement under Georgia law that notarial acts and witnessing must be executed in-person. This executive order was intended to curb the spread of COVID-19, which can be contracted through person-to-person contact.
The following suggested practices are a compilation of advice from certain State Bar sections, which worked closely with the Bar's legislative team and the Governor's Office on the Executive Order. Please review the orders yourself before deciding how to act.
This page will continue to be updated as we receive additional information from sections on their suggested practices.
These suggested practices are not intended to apply to Executive Order 03.31.20.01 which specifically pertains to the conveyance of real property. For guidance on Executive Order 03.31.20.01 please review the specific suggested practices from the Real Property Section at the link below.
a. Technology Requirements
The audio-video communication technology (“AVCT”) must allow for simultaneous (real-time) communication among the individual signing the document (“the signer”) and the witness(es) and/or notary public (“the witness(es)”) by sight and sound.
Consider being consistent with the technology you use. Ensure that all witnesses are using the same platform (ie- Zoom) rather than making exceptions where one witness is on FaceTime pointed at a computer screen with everyone else on Zoom.
b. A Notary Must be an Attorney or Supervised by an Attorney
For notarization, the notary public must be an attorney licensed to practice law in Georgia or be operating under the supervision of an attorney licensed to practice law in Georgia.
“Supervision” means that the notary public “is an employee, independent contractor, agent, or other representative of an attorney or an attorney observes the execution of documents either in person or via the real-time audio-video communication technology.”
The State Bar recommends that an attorney use his or her best judgment when interpreting substantive provisions of the executive order and to discuss the language among your specialized practice groups. Under the executive order, we suggest that a lawyer be responsible for the actions of a notary public under his or her supervision and provide the non lawyer notary with a lawyer-developed process for handling remote notary.
c. Location of the Signer
The signer should be physically located in Georgia during the AVCT session.
d. Location of Witnesses and Notaries Public
Witnesses: the witness(es) should be physically located in Georgia during the AVCT session.
Notaries: the notary public must be physically located in Georgia.
e. Verifying the Identity of Signers and Witnesses
Witnessing: if the signer is not personally known to the witness(es), the signer should present valid photo identification during the AVCT session.
Notarization: the signer must present “satisfactory evidence of identity as required in Code Section 45-17-8, while connected to the real-time audio-video communication technology.”
f. Statements of Confirmation During the Course of Executing a Legal Document or Notarial Act
Attorneys executing documents and performing notarial acts using AVCT should consider asking questions to the signer or witness that solicit confirmation. Consider questions that solicit statements confirming the signer’s identity, the nature of the document being signed, and confirmation from each witness that he or she witnessed the signer sign the document.
g. Re Executing Certain Legal Documents After COVID-19
When feasible, a document like a will, a trust instrument, or a power of attorney signed pursuant to these executive order procedures should be re‑executed under ordinary procedures at a later time.
a. Consider Using a Caption that Indicates the Document was Notarized Pursuant to Executive Order 04.09.20.01
Along with the notary’s signature and date, consider a line or caption on the notary public’s signature block that states “This [name of document] was notarized pursuant to Executive Order 04.09.20.01 using [insert technology name] as real-time audio visual communication technology.”
b. Consider Using a Journal
While Georgia notaries are not required to keep a journal of executed notarial acts, attorney/notaries or notaries being supervised by an attorney are encouraged to use a journal that keeps track of (1) the name of the signer, (2) the identification he or she produced, (3) the date and time the notarial act was executed, (4) the document that was witnessed or attested, and (5) the type of real-time audio visual communication technology that was used (ie- Zoom).
a. The Fiduciary Section’s suggested practices can be found here.
a. The Real Property Section’s suggested practices are forthcoming.
b. Executive Order 03.31.20.01 can be found here.
a. The Family Law Section’s suggested practices can be found here.
Q: Does the governor’s executive order allow me to notarize a document as an attorney even though my notary public commission has lapsed?
A: No. While the executive order requires a notary to be an attorney or supervised by an attorney, the notary public executing the notarial act remotely must have an active commission pursuant to Georgia’s notary statute.
Q: Can the State Bar’s Office of General Counsel give me advice about Executive Order 04.09.20.01?
A: The Office of the General Counsel (OGC) does not have the authority to give advice about the governor’s executive orders. OGC remains available to give informal ethics advice regarding the application of the Georgia Rules of Professional Conduct as applied to a particular set of facts. Please feel free to call the Bar’s ethics helpline at 404-527-8741 or 800-682-9806.
Q: What does it mean that the notary public must be supervised by an attorney?
A: The State Bar recommends that an attorney use his or her best judgment when interpreting substantive provisions of the executive order and discuss the language among your specialized practice groups. Under the executive order, we suggest that a lawyer be responsible for the actions of a notary public under his or her supervision and provide the non lawyer notary with a lawyer-developed process for handling remote notary.
Q: Can I use an electronic signature on a will under the executive order?
A: The executive order does not purport to change current Georgia law where it requires a wet signature.
Executive Order 04.09.20.01 is silent on the issue of electronic signatures. If state law or general practice does not permit you to execute a document using an electronic signature, it is a best practice not to do so.
Q: Can you clarify the law on electronic signatures, wet signatures, electronic documents, and original documents in light of the governor’s executive order?
A: If you have other substantive legal questions regarding the execution of documents in light of the executive order we suggest that: (1) you review the relevant code sections and current Georgia law on the issue, and (2) you consult with fellow practitioners in your practice area.
The State Bar does not have the authority to interpret how the governor’s executive order affects other areas of settled and unsettled Georgia law.
Available via email from Natalie Kelly, Director of Law Practice Management, at NatalieK@gabar.org.