Section 117.285 - Supervising the witnessing of electronic recordsSupervising the witnessing of an electronic record by an online notary public in accordance with this section is a notarial act. An online notary public may supervise the witnessing of electronic records by complying with the online notarization procedures of this part and using the same audio-video communication technology used for online notarization by a principal, as follows:
(1) The witness may be in the physical presence of the principal or remote from the principal provided the witness and principal are using audio-video communication technology.(2) If the witness is remote from the principal and viewing and communicating with the principal by means of audio-video communication technology, the principal's and witness's identities must be verified in accordance with the procedures for identifying a principal as set forth in s. 117.265(4). If the witness is in the physical presence of the principal, the witness must confirm his or her identity by stating his or her name and current address on the audio-video recording as part of the act of witnessing.(3) The act of witnessing an electronic signature means the witness is either in the physical presence of the principal or present through audio-video communication technology at the time the principal affixes the electronic signature and the witness hears the principal make a statement to the effect that the principal has signed the electronic record.(4) A witness remote from the principal and appearing through audio-video communication technology must verbally confirm that he or she is a resident of and physically located within the United States or a territory of the United States at the time of witnessing.(5) Notwithstanding subsections (2) and (3), if an electronic record to be signed is a will under chapter 732; a revocable trust with testamentary aspects as described in s. 736.0403(2)(b); a health care advance directive; an agreement concerning succession or a waiver of spousal rights under s. 732.701 or s. 732.702, respectively; or a power of attorney authorizing any of the transactions enumerated in s. 709.2208, all of the following apply when fewer than two witnesses are in the physical presence of the principal:(a) Prior to facilitating witnessing of an instrument by means of audio-video communication technology, a RON service provider shall require the principal to answer the following questions in substantially the following form: 1. Are you under the influence of any drug or alcohol today that impairs your ability to make decisions?2. Do you have any physical or mental condition or long-term disability that impairs your ability to perform the normal activities of daily living?3. Do you require assistance with daily care?(b) If any question required under paragraph (a) is answered in the affirmative, the principal's signature on the instrument may only be validly witnessed by witnesses in the physical presence of the principal at the time of signing.(c) Subsequent to submission of the answers required under paragraph (a), the RON service provider shall give the principal written notice in substantially the following form: NOTICE: If you are a vulnerable adult as defined in s. 415.102, Florida Statutes, the documents you are about to sign are not valid if witnessed by means of audio-video communication technology. If you suspect you may be a vulnerable adult, you should have witnesses physically present with you before signing.
(d) The act of witnessing an electronic signature through the witness's presence by audio-video communication technology is valid only if, during the audio-video communication, the principal provides verbal answers to all of the following questions, each of which must be asked by the online notary public in substantially the following form:1. Are you currently married? If so, name your spouse.2. Please state the names of anyone who assisted you in accessing this video conference today.3. Please state the names of anyone who assisted you in preparing the documents you are signing today.4. Where are you currently located?5. Who is in the room with you?(e) An online notary public shall consider the responses to the questions specified in paragraph (d) in carrying out of the duties of a notary public as set forth in s. 117.107(5).(f) A principal's responses to the questions in paragraphs (a) and (d) may be offered as evidence regarding the validity of the instrument, but an incorrect answer may not serve as the sole basis to invalidate an instrument.(g) The presence of a witness with the principal at the time of signing by means of audio-video communication technology is not effective for witnessing the signature of a principal who is a vulnerable adult as defined in s. 415.102. The contestant of an electronic record has the burden of proving that the principal was a vulnerable adult at the time of executing the electronic record.(h) Nothing in this subsection shall: 1. Preclude a power of attorney, which includes banking or investment powers enumerated in s. 709.2208, from being effective with respect to any other authority granted therein or with respect to the agent's authority in connection with a real property, commercial, or consumer transaction or loan, to exercise any power specified therein or to execute and deliver instruments obligating the principal or to draw upon the proceeds of such transaction or loan; or2. Affect the nontestamentary aspects of a revocable trust under chapter 736.(i) The electronic record containing an instrument signed by witnesses who were present with the principal by means of audio-video communication technology shall contain a perceptible indication of their presence by such means.(j) This subsection does not affect the application of s. 709.2119.(k) The requirements of this subsection do not apply if there are at least two witnesses in the physical presence of the principal at the time of the notarial act.(6) Pursuant to subpoena, court order, an authorized law enforcement inquiry, or other lawful request, a RON service provider or online notary public shall provide: (a) The last known address of each witness who witnessed the signing of an electronic record using audio-video communication technology under this section.(b) A principal's responses to the questions in paragraph (5)(a) or paragraph (5)(d), as applicable.(c) An uninterrupted and unedited copy of the recording of the audio-video communication in which an online notarization is performed.(7) Except as set forth in s. 709.2202, an act of witnessing performed pursuant to this section satisfies any requirement that the witness must be a subscribing or attesting witness or must be in the presence of the principal at the time of signing.(8) The law of this state governs the validity of witnessing supervised by an online notary public pursuant to this section, regardless of the physical location of the witness at the time of witnessing. State and federal courts in this state have subject matter jurisdiction over any dispute arising out of an act of witnessing pursuant to this section, and may issue subpoenas for records or to require the appearance of witnesses in relation thereto in accordance with applicable law. s.15, ch. 2019-71; s.2, ch. 2021-205.Amended by 2021 Fla. Laws, ch. 205, s 2, eff. 6/29/2021.Added by 2019 Fla. Laws, ch. 71, s 15, eff. 1/1/2020.