The Florida legislature is considering making it possible for people to have legal documents notarized online.
The bill, HB 409, would make signing official documents, such as a will or power of attorney, quicker and more convenient in the state. Critics have expressed concerns that greater convenience could lead to more fraud, especially among the elderly.
The bill, proposed by Rep. Daniel Perez, R-Miami, moved Tuesday through the House transportation and tourism appropriations subcommittee and will be considered next in the Judiciary Committee, the final step before a House vote. A Senate version hasn’t made as much progress.
Perez said he had traveled to Colombia recently, and he realized as he boarded the plane that he forgot to assign power of attorney to his in-laws. Requiring his appearance in person before a Florida-commissioned notary made it impossible to fix his oversight, he said. “God forbid anything happens,” he said.
The bill survived efforts by two Democrats that would have limited its scope. Rep. Barbara Watson, D-Miami Gardens, compared the risks of fraud under the system to college students who buy fake IDs to drink alcohol illegally. She proposed requiring notary witnesses to be in the same place physically as whoever is signing legal documents.
“When we have no one tangibly looking at this information, not having it in their hands for close inspection to verify its validity, we’re in trouble,” Watson said.
Rep. Ben Diamond, D-St. Petersburg, said allowing wills and powers of attorney to be created online was risky for Florida’s elderly. He said lawmakers need to balance between better business and protecting older residents.
“I have a concern about someone going into a nursing home with an iPad and walking room to room and getting people to click buttons and then they get a couple of powers of attorney,” Diamond said.
Perez said it was possible for fraudster to take advantage of elderly people even with the current notary requirements.
“You can change bad policy, but you can’t change bad actors,” he said.
Attorneys from the Florida Bar are split. Lawyers from the organization’s Real Property Probate and Trust Law section said the proposal puts the elderly at greater risk of fraud, while lawyers from the Elder Law section said the online services will make it easier for Florida’s older population to plan estates.
When former Gov. Rick Scott vetoed a similar bill in 2017, attorney Shannon Miller thought his letter explaining the veto echoed concerns she had raised.
Miller and others from the Elder Law section helped draft this year’s bill, she said.
“This legislation has been pending for about the last three years, and the Elder Law Section has never supported it because they haven’t let us have a seat at the table,” Miller said. “We think that this year when they brought us in and said, ‘How can you help us make it safer for people who are most vulnerable?’ They did everything that we asked them to do.”
The bar’s section proposed changes to the bill that would exclude “vulnerable adults” – people whose abilities to perform normal, daily activities are impaired – from using an online notary. It’s not required to record obtaining a will today, but the new online method would create video documenting the event.
The bill also added requiring the notary to ask whether the person creating a will was under the influence of drugs or under 18. Those questions are not required for obtaining power of attorney through this legislation.
Zayne Smith, a lobbyist for AARP, supports the bill, comparing the online notary technology to telemedicine that already exists.
“We trust our doctors and our medical professionals to use technology to do their services, why can’t we expect the same of the legal community?” Smith said.