2022 Delaware Code
Title 29 - State Government
Chapter 43. NOTARIES PUBLIC
Subchapter II. Revised Uniform Law on Notarial Acts [Effective Aug. 1, 2023].
§ 4320. Notarial act performed for remotely located individual [Effective Aug. 1, 2023].

Universal Citation: 29 DE Code § 4320 (2022)
§ 4320. Notarial act performed for remotely located individual [Effective Aug. 1, 2023].

(a) For purposes of this section:

(1) “Communication technology” means an electronic device or process that does both of the following:

a. Allows a notarial officer and a remotely located individual to communicate with each other simultaneously by sight and sound.

b. When necessary and consistent with other applicable law, facilitates communication with a remotely located individual who has a vision, hearing, or speech impairment.

(2) “Foreign state” means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe.

(3) “Identity proofing” means a process or service by which a third person provides a notarial officer with a means to verify the identity of a remotely located individual by a review of personal information from public or private data sources.

(4) “Outside the United States” means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States.

(5) “Remotely located individual” means an individual who is not in the physical presence of the notarial officer who performs a notarial act under subsection (c) of this section.

(b) A remotely located individual may comply with § 4319 of this title by using communication technology to appear before a notarial officer.

(c) A notarial officer located in this State may use communication technology to perform a notarial act for a remotely located individual if all of the following apply:

(1) The notarial officer has 1 or more of the following:

a. Personal knowledge under § 4321(a) of this title of the identity of the remotely located individual.

b. Satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notarial officer under § 4321(b) of this title or this section.

c. Obtained satisfactory evidence of the identity of the remotely located individual by using at least 2 different types of identity proofing.

(2) The notarial officer is able reasonably to confirm that a record before the notarial officer is the same record in which the remotely located individual made a statement or on which the individual executed a signature.

(3) The notarial officer, or a person acting on behalf of the notarial officer, creates an audio-visual recording of the performance of the notarial act.

(4) For a remotely located individual located outside the United States, all of the following apply:

a. Any of the following apply:

1. The record is to be filed with or relates to a matter before a public official or court, governmental entity, or other entity subject to the jurisdiction of the United States.

2. The record involves property located in the territorial jurisdiction of the United States or involves a transaction substantially connected with the United States.

b. The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.

(d) A notarial officer located in this State may use communication technology under subsection (c) of this section to take an acknowledgment of a signature on a tangible record physically present before the notarial officer if the record is displayed to and identified by the remotely located individual during the audio-visual recording under paragraph (c)(3) of this section.

(e) The requirement under paragraph (c)(2) of this section for the performance of a notarial act with respect to a tangible record not physically present before the notarial officer is satisfied if all of the following apply:

(1) The remotely located individual does all of the following:

a. During the audio-visual recording under paragraph (c)(3) of this section, signs all of the following:

1. The record.

2. A declaration, in substantially the following form, that is part of or securely attached to the record:

I declare under penalty of perjury that the record of which this declaration is a part or to which it is attached is the same record on which (name of notarial officer), a notarial officer, performed a notarial act and before whom I appeared by means of communication technology on (date).________________Signature of remotely located individual________________Printed name of remotely located individual

b. Sends the record and declaration to the notarial officer not later than 3 days after the notarial act was performed.

(2) The notarial officer does all of the following:

a. In the audio-visual recording under paragraph (c)(3) of this section, records the individual signing the record and declaration.

b. After receipt of the record and declaration from the individual, executes a certificate of notarial act under § 4328 of this title, which must include a statement in substantially the following form:

I (name of notarial officer) witnessed, by means of communication technology, (name of remotely located individual) sign the attached record and declaration on (date).

________________
Signature of remotely located individual
________________
Printed name of remotely located individual

(f) A notarial act performed in compliance with subsection (e) of this section complies with § 4328(a)(1) of this title and is effective on the date the remotely located individual signed the declaration under paragraph (e)(1)a.2. of this section.

(g) Subsection (e) of this section does not preclude use of another procedure to satisfy paragraph (c)(2) of this section for a notarial act performed with respect to a tangible record.

(h) A notarial officer located in this State may use communication technology under subsection (c) of this section to administer an oath to a remotely located individual if, except as otherwise provided by other law of this State, the notarial officer does all of the following:

(1) Identifies the individual under paragraph (c)(1) of this section.

(2) Creates or causes the creation under paragraph (c)(3) of this section of an audio-visual recording of the individual taking the oath.

(3) Retains or causes the retention under subsection (k) of this section of the recording.

(i) If a notarial act is performed under this section, the certificate of notarial act under § 4328 of this title and the short-form certificate under § 4329 of this title must indicate that the notarial act was performed using communication technology.

(j) A short-form certificate under § 4329 of this title for a notarial act subject to this section is sufficient if it does any of the following:

(1) Complies with regulations adopted under paragraph (m)(1) of this section.

(2) Is in the form under § 4329 of this title and contains a statement in substantially the following form:

This notarial act involved the use of communication technology.

(k) A notarial officer, a guardian, conservator, or agent of a notarial officer, or a personal representative of a deceased notarial officer shall retain the audio-visual recording created under paragraph (c)(3) of this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by rule adopted under paragraph (m)(4) of this section, the recording must be retained for a period of at least 10 years.

(l) (1) Before a notarial officer performs the notarial officer's initial notarial act under this section, the notarial officer shall do all of the following:

a. Notify the Secretary of State that the notarial officer will be performing notarial acts with respect to remotely located individuals.

b. Identify for the Secretary of State the technologies the notarial officer intends to use.

(2) If the Secretary of State has established standards under subsection (m) of this section and § 4338 of this title for approval of communication technology or identity proofing, the communication technology and identity proofing must conform to the standards.

(m) In addition to adopting regulations under § 4338 of this title, the Secretary of State may adopt regulations under this section regarding performance of a notarial act. The regulations may do any of the following:

(1) Prescribe the means of performing a notarial act involving a remotely located individual using communication technology.

(2) Establish standards for communication technology and identity proofing.

(3) Establish requirements or procedures to approve providers of communication technology and the process of identity proofing.

(4) Establish standards and a period for the retention of an audio-visual recording created under paragraph (c)(3) of this section.

(5) Prescribe methods for a notarial officer to confirm under subsections (d) and (e) of this section the identity of a tangible record.

(n) Before adopting, amending, or repealing a regulation governing performance of a notarial act with respect to a remotely located individual, the Secretary of State must consider all of the following:

(1) The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the recommendations of the National Association of Secretaries of State.

(2) Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section.

(3) The views of governmental officials and entities and other interested persons.

(o) By allowing its communication technology or identity proofing to facilitate a notarial act for a remotely located individual or by providing storage of the audio-visual recording under paragraph (c)(3) of this section, the provider of the communication technology, identity proofing, or storage appoints the Secretary of State as the provider's agent for service of process in any civil action in this State related to the notarial act.

76 Del. Laws, c. 253, § 1;  83 Del. Laws, c. 425, § 11; 
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