Digital power of attorney soon possible for the signature of notarial deeds
In recent years various initiatives have been taken in the field of digitalisation of the work of the civil notary. The COVID-19 lockdown and related government measures have accelerated the moves towards digitalisation.
The Royal Decree on the introduction of the digital Notarial Deed Database (also known as the 'NABAN') was published in the Belgian Official Gazette on 24 March 2020 rendering the electronic signing of notarial deeds possible. Additionally, on 10 April 2020, the Belgian Federation of Notaries introduced the possibility for a notary’s employee or a trusted person to sign a notarial deed by digital power of attorney. This allows notarial deeds to be signed without infringement of the measures on social distancing during the COVID-19 lockdown.
The Notarial Deed Database (‘NABAN’)
In order to sign notarial deeds electronically, the digital Notarial Deed Database (the ‘NABAN’) first had to be put in place.
NABAN aims to create an integrated and secure system in which all notarial deeds are included in a single electronic database. This enables citizens directly to access to the notarial deeds to which they are a party. The NABAN will serve as an authentic source for dematerialized (i.e. electronic) documents and will therefore have the same evidential value as the traditional paper deeds. Consequently, by the process of this dematerialisation, it will be possible to sign notarial deeds electronically (which is impossible for paper deeds).
The intention was that the NABAN should be operational on 1 January 2020, but the Royal Decree regulating its establishment and operation was delayed.
The Royal Decree of 18 March 2020 regarding the introduction of the Notarial Deed Database (‘Koninklijk besluit houdende de invoering van de Notariële Aktebank’/’ Arrêté royal portant l'introduction de la Banque des actes notariés’) was published in the Belgian Official Gazette on 24 March 2020.
The Royal Decree
- provides that the NABAN will be managed by the Belgian Federation of Notaries (‘KFBN’/’FRNB’);
- states that each dematerialised copy is given a unique reference number, a NABAN number, on its entry into the database;
- provides that the parties concerned will be able to consult the notarial deeds to which they are a party via their electronic identity card by direct online access;
- provides for the parties and notaries to be given an identification number to prevent unauthorised persons gaining access.
Certain (highly personal and confidential) deeds, such as wills, revocations of wills and contractual inheritances (contractuele erfstellingen / les institutions contractuelles ), cannot be entered into the NABAN.
Consequently, the NABAN creates dematerialized copies with the same evidential value, and we all should be able electronically to sign notarial deeds before a notary, or in the future by videoconference.
Whilst there no practical experience so far, the combination of the NABAN with electronic signatures should result in a paperless notarial experience, with both signing and consultation of notarial deeds being done electronically.
Digital procuration during COVID-19-lockdown
The Belgian Federation of Notaries has announced that, as from 20 April 2020, notaries’ offices will be in principle able to execute all notarial deeds, on condition that physical contact is avoided as much as possible and subject to respecting social distancing measures (thus, not only with the exception of “acts of extreme urgency”).
Recently, the government introduced a Bill providing for digital powers of attorney for notarial deeds, giving the opportunity to sign the notarial deed without physical appointment. This will make it possible to grant a notarial employee or a trusted person a digital (authentic) power of attorney, thus facilitating the execution of notarial deeds without infringement of the rules on social distancing. The person granting the power of attorney needs a connection to the internet, an electronic identity card with the correct PIN code or the 'Itsme' app.
The NABAN (see above) will be used for the storage of the digital powers of attorney.
The mandatory reading of the notarial deed can be done by the notary via videoconferencing to the holder (physically present) and the grantor (at home) of the power of attorney.
During the period of the COVID-19-measures, the Belgian Federation of Notaries has announced that citizens will not bear the costs of authentic powers of attorney (no notary fees nor costs or taxes).
The Bill still needs to be approved by Parliament. Signing notarial deeds by digital power of attorney should be possible from the beginning of May.