Commissioning vs. Independent Legal Advice (ILA)
Notary - Commission - Proof of Life - Independent Legal Advice - GAA Certificate
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While both the commissioning of documents and independent legal advice (ILA) are critical components of legal documentation, they serve fundamentally different purposes and offer varying levels of protection. Understanding these distinctions is essential for anyone navigating contracts, real estate transactions, or estate planning.
Role of Commissioning (undertaken by commissioner of oaths, including lawyers)
Commissioning is a formal act performed by a Commissioner of Oaths (which includes lawyers, often by virtue of their profession) to certify the swearing of an oath or the making of a solemn affirmation. The primary function of the commissioner is to verify the identity of the deponent through government-issued photo ID and to witness the physical signing of the instrument. It is important to note that a commissioner is not required to read the document or explain its contents; their signature simply confirms that the named signatory is indeed the person who they claim to be and that they swore to the truth of the contents in the commissioner’s presence. As such, a commissioner (including lawyers when they perform this specific function) provides no protection against a lopsided contract or a misunderstanding of the legal terms contained within.
Role of Independent Legal Advice (undertaken by lawyer)
Independent Legal Advice (ILA) is a much more rigorous process designed to ensure informed consent and to prevent unconscionability in legal agreements. When a lawyer provides ILA, they are fulfilling a duty of care to ensure their client understands the nature and consequences of the document, such as a prenuptial agreement or a personal guarantee. The lawyer must remain independent, such that they cannot represent the other party or the lending institution involved in the transaction. This independence is crucial because it ensures the advice is unbiased and focused entirely on their client’s best interests. Without a Certificate of Independent Legal Advice, many contracts are at high risk of being set aside by a court if one party later claims they were pressured or misled.
The Differences are Significant
The difference in scope between these two professional services is significant, particularly regarding the professional liability of the provider. With commissioning, the responsibility is generally limited to the accuracy of the jurat (the section of the document stating when and where the oath was taken) and the commissioner is not liable if the contract itself turns out to be a bad deal for the signer (even if the commissioner is also a lawyer). Conversely, independent legal advice is the exclusive realm of a lawyer, which carries a much heavier burden of care, such that the lawyer can be held liable for professional negligence if they fail to point out a critical legal risk. Because ILA involves critical analysis into the specific facts of the person's life and legal standing, there is considerable preparatory review and legal work, as compared to a simple five-minute commissioning appointment, which is reflected in the significantly higher time involvement and cost.
When You Need Both Commissioning and ILA (undertaken by lawyer)
In many complex legal transactions, both commissioning and ILA are required to satisfy the requirements of the court or a lending institution. Each process functions to secure a distinct result: the ILA prevents non est factum defenses (claiming the signer didn't understand the document), while the commissioning prevents identity theft or claims that the document was not properly executed. The more substantive and time-consuming process is the provision of ILA, with the commissioning being a largely procedural action that can be easily facilitated by the lawyer (who is often a commissioner by virtue of their office) and effectively incorporated into their professional services.
To schedule an appointment, please contact our law firm to attain our current availability for an evening / weekend session to commission a document(s) and/or provide independent legal advice, email our law firm in strict confidence at Chris@NeufeldLegal.com with your contact information (including home address), preferred times and PDFs of the documents to be completed, such that we might coordinate the actual meeting time and confirm our costs.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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