Legal Advisory
What is the Reasonable Person Test?
The reasonable person test is a benchmark of behaviour for determining whether something is reasonable or not. The idea of a reasonable person is a made-up concept used to help
An independent solicitor’s certificate in Australia confirms that a person has received independent legal advice from a solicitor.
Often, certain legal transactions will require an independent certificate of legal advice. For example, property transfers or financial agreements including guarantees. All parties involved receive proper advice and understand the implications of the transaction through a certificate.
Further, the certificate shows that the person got legal advice and can prevent future claims of force or not understanding.
Obtaining an independent solicitor’s certificate is critical to safeguard the interests of all parties involved in legal transactions.
This certificate acts as a shield. It does this by ensuring that everyone has received proper legal guidance regarding the transaction. By seeking advice from a solicitor, individuals can make informed decisions.
In financial agreements, such as loan contracts, we highly recommend obtaining an independent solicitor’s certificate. By doing so, our clients can rest assured that they have received unbiased legal advice regarding the legal document. This not only protects their interests but also ensures that they are fully aware of their rights and obligations.
Further, Banks or other lending institutions will generally require a guarantor to obtain independent legal advice.
Protecting the borrower or guarantor
Both borrowers and guarantors need to understand the legal consequences of signing lending documents. Guarantors of loans face risk and cost if borrowers don’t meet their obligations under the loan agreement. Guarantors can overlook this risk under the assumption that nothing will go wrong.
Protecting financiers and other parties
Lenders need assurance that borrowers and guarantors have made an informed decision to enter into legally binding contracts.
Lender requirements usually mandate a certificate before the loan is granted. Banks will often want to know that the parties understand the gravity of the document. Further, they will want an independent legal practitioner to verify that they have understood their obligations.
The process of obtaining a solicitor guarantee certificate typically involves the following steps.
Consultant with a solicitor
The first step is to consult with a solicitor. The solicitor must not be advising the other party and must be independent. During the consultation, you will discuss your specific circumstances and the transaction for which you require the certificate.
The solicitor will review the loan documents
The solicitor will review the relevant documents associated with the transaction, such as contracts. This review is important to identify any potential pitfalls or hidden clauses that may affect the transaction.
Independent legal advice from a lawyer
The solicitor will provide you with independent legal advice regarding the transaction. They will explain the terms and conditions, potential risks, and implications of the transaction. This advice is crucial in ensuring that you fully understand the consequences of entering into the documents.
You can do this over a video conference call. The lawyer requires a photo ID to verify the identity of the person mentioned in the loan papers. This is necessary to ensure that they are speaking to the correct individual.
Preparing a certificate of independent legal advice
Based on the consultation and legal advice, the solicitor will prepare the solicitor’s certificate. This document will confirm that you have received independent legal advice and understand the implications of the transaction.
The solicitor will send you a copy of the certificate that they have signed. You will then need to sign the certificate. In some States and Territories, like Queensland, you can do this over a video conference call. However, some States and Territories require individuals to do this in person.
Further, this signing process ensures that you acknowledge and accept the advice provided.
You may need to submit this certificate to the relevant parties, such as lenders.
You can get independent legal advice in Australia from various sources.
Most law firms will be able to provide an independent solicitor’s certificate.
There are also online law firms that offer independent legal advice through virtual consultations and video calls. These services allow you to seek legal guidance from the comfort of your own home or office.
It is important to ensure that you choose a licensed and qualified solicitor to provide legal advice. Research and choose a good lawyer or online law firm to get reliable and accurate advice.
Yes, I highly recommend reviewing the documents before signing them and obtaining an independent solicitor’s certificate.
Reviewing the documents helps you understand the transaction’s terms and conditions, making sure you know your rights and responsibilities. It also allows you to identify any potential pitfalls or hidden clauses. Some people may not realise they have to pay for the loan, interest, and costs if the borrower doesn’t pay.
Obtaining an independent solicitor’s certificate is generally not free.
The cost of an independent solicitor’s certificate can vary. For example, depending on the complexity of the legal transaction and the specific solicitor or law firm you choose. Generally, the cost can range from a few hundred dollars to a few thousand dollars.
At Prosper Law, we charge $450 plus GST per guarantor for an independent legal advice certificate.
Yes, it is possible to obtain independent legal advice online. Many solicitors and law firms offer virtual consultations and advice through video calls or online platforms. This allows individuals to seek legal guidance from the comfort of their own homes or offices.
Verify the online solicitor’s license and qualifications to give legal advice in your area. It’s important to find a good lawyer or law firm with experience in online legal advice.
Lawyers can potentially get in trouble for following the wrong process regarding independent solicitor’s certificates. Lawyers have a professional duty to provide competent and ethical legal services to their clients. The legal practice solicitors rules that apply in each State and Territory require this.
If a lawyer doesn’t give an independent certificate correctly, it can result in professional misconduct or negligence.
A solicitor does not have a license to provide financial advice. The solicitor you choose won’t give an opinion or advice on whether the transaction is viable. You should obtain independent financial advice if you want to understand the financial aspects of the loan.
We provide legal advice to business and individuals across Australia, no matter which State or Territory you are located. Our easy-to-access, online legal services mean that you can talk to our lawyers wherever you are, at a time that suits you.
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