Practice area
Independent legal advice
Independent legal advice exists so that a signature cannot later be explained away as something you did not understand or were pressured into. It is a real appointment with a real conversation behind it, not a stamp collected on the way to a signing. This page sets out what happens in it and what we need in front of us before it can happen.
Who this is for
Independent legal advice
A lender, a lawyer, or the other side has told you to get independent legal advice before you sign. The common situations are standing as guarantor on someone else's loan, agreeing to a mortgage on a home you live in but do not own, coming off or going on to title in a family transfer, and signing a separation, cohabitation or marriage agreement. The point of it is that the lawyer advising you acts for nobody else in the transaction.
The work
What we do
- 01Confirm we can actually act, which means confirming we do not act for the lender, the other party, or anyone else with an interest in the document. If we cannot, we tell you straight away rather than at the appointment.
- 02Get the document in final form before the appointment, along with everything it refers to, and read it in advance rather than in front of you.
- 03Meet you on your own. Nobody else in the room or on the call, and where you need an interpreter, one we arrange rather than one the other side brought.
- 04Go through the document with you and explain what it does: what you are agreeing to, what you are giving up, and what happens if the risk it protects against actually materialises.
- 05Satisfy ourselves that you understand it, that you have the capacity to sign it, and that you are signing voluntarily rather than because someone is standing over you.
- 06Tell you plainly if we think you should not sign it, or should ask for something to change first. That is part of the advice, not an obstruction to it.
- 07Sign and issue the certificate in the form the lender or the other party requires, and send it where it needs to go.
- 08Keep our own record of the advice given, because a certificate is only worth what the file behind it can show.
Your part
What we need from you
Gathering these early is the single biggest thing you can do to keep a file on schedule.
- Two pieces of government-issued identificationOne has to carry your photograph. The certificate says we confirmed who signed, so this is not a formality we can work around.
- The complete document, in final form, before it is signedNot the summary, not the signature page, and not a draft that is still being negotiated. If the terms change after we advise you, the advice no longer matches what you are signing.
- Everything the document refers toThe mortgage, the loan agreement, the schedules, the agreement being consented to. A promise to stand behind someone else's borrowing cannot be explained without the loan it secures, and a consent cannot be explained without the charge it permits.
- Who is asking for the certificate, and in what formLenders and lawyers use their own wording, and a certificate in the wrong form gets rejected and has to be redone. Send us the form they want with the request.
- For a family agreement, the financial disclosure both of you exchangedAn agreement about property or support can be set aside where someone failed to disclose significant assets or debts. Advising you on an agreement without seeing what was disclosed gives you far less protection than you think you are buying.
- Enough time before your deadlineThis is a real appointment with reading beforehand. Booking it for the afternoon the document is due is the most common reason it does not happen, and a signing gets missed for the sake of a day.
Risk
Watch for
The things that actually derail this kind of file, rather than the ones that sound alarming.
A document that has already been signed
Advice given after the fact is not independent legal advice, and no certificate can be dated to a day it did not happen. If you have already signed, say so at the start. The conversation is still worth having, but it is a different one, and what can be done about it depends on what you signed and who holds it.
Booking it against the deadline
ILA needs the final document in advance, a conflict check, and an appointment with only you in it. All three take time that is not available on the morning of a signing. When people describe ILA as a formality, this is usually the assumption underneath it, and it is where completions get missed.
A family agreement with no disclosure behind it
The protection an agreement gets from ILA is largely about process: you understood it and you signed freely. That does very little where the other party did not disclose what they own and owe, which is one of the main grounds on which agreements are set aside. Disclosure and ILA work together, and one without the other is a thin shield.
Assuming the certificate makes the deal safe
A certificate records that you understood the document and signed it voluntarily. It does not make an unfair agreement fair, it does not fix a term that was a bad idea, and it does not make us your lawyer for the underlying transaction. If the document needs changing rather than explaining, that is a different piece of work and we will say so.
Questions
Common questions
What is independent legal advice, and why does the lender want it?
It is advice from a lawyer acting only for you, on a document that exposes you to a risk you may not benefit from directly. Lenders ask for it so that the person signing cannot later say they did not understand what they were agreeing to. The certificate protects the transaction, and the appointment behind it is what protects you.
Can my spouse and I use the same lawyer for this?
No. Independence is the entire point. A lawyer advising you on a document that benefits the other party cannot also be acting for that party, and where we already act for one of you on the underlying matter, we cannot provide the other with ILA on it.
Can this be done remotely?
Yes, and we do it regularly across the province. The requirement is that you are alone, that we can verify your identification, and that we can satisfy ourselves you are not under pressure from someone off camera. We will ask about that directly and it is not a comment on your situation.
Can you change the agreement while we are at it?
Not as part of ILA. ILA is advice on the document as it stands. If the document needs negotiating, that is a separate retainer and a different conversation, and it is one worth having before the deadline rather than at it.
What if you tell me not to sign?
Then we tell you, and we explain why. You are free to sign anyway, and we will still certify that you received the advice and understood it, because that is what the certificate says. What we will not do is issue a certificate where we are not satisfied that you understood the document or that you are signing freely.
Talk to us about your file
We quote your file in writing before we start work, so the number on your statement of adjustments is the number you agreed to.
