Why do lawyers have to witness certain documents and provide independent legal advice on them ?

Jul 23 2020

We spend a lot of time witnessing documents and providing independent legal advice on behalf of clients and often get asked why such a process is required.

Witnessing someone’s signature on a legal document such as a Guardianship document ensures that this document is valid. The lawyer present as a witness is here to confirm that the correct party has signed the document and that no fraud has occurred during the process.

Witnessing and certifying documents is not as straightforward as you may think and exists for very good reasons.

Making sure you understand exactly what you are signing

Legislation often requires Lawyers to be a Signatory and Witness to documents such as Enduring Power of Attorney Documents or Guardianship documents. These documents are very powerful and long-lasting in nature as you are authorising other people to make financial and lifestyle decisions when you are absent or incapacitated.

Given the seriousness of these documents a Lawyer is required to explain the effect of the documents and to also make sure you understand exactly what you are signing. We often prepare enduring guardianship documents for elderly clients and we always make sure they have capacity and understand exactly what they are signing. In some cases elderly clients do not fully understand and the documents cannot be created.

These documents are also very lengthy and can be difficult to fill out especially if multiple parties are involved such as two or three siblings so it is also great to have a Lawyer available to explain the ins and outs of them.

Without having an authorised witness certify your documents it would be easy to forge them and create havoc which sadly happens all too often in the financial sector.

Protecting your identity and avoiding fraud

Another reason lawyers are required to witness and certify documents particularly with bank and financial documents is to protect your identity. Without having an authorised witness certify your documents it would be easy to forge them and create havoc which sadly happens all too often in the financial sector.

Take the example of an unscrupulous husband who signs a loan document on his wife’s behalf and lodges the documents with the bank. By having your Solicitor sit with you and witness your signature and verify your identity, this scenario becomes much less likely and identify theft is minimised.

Providing independent legal advice

Finally, independent legal advice is crucial in terms of protecting your long term interests. Your Lawyer becomes a type of Guarantor for you in that they are confirming the validity of the document and can be sued if they are not advising or witnessing the documents correctly.

Couples often sign onerous loans agreements together only to break up a few years later with complicated situations they cannot back out of. Your lawyer when providing independent legal advice will be skilled at looking for un-usual terms such as high interest rates or onerous terms that are not common with the type of document you are signing.

Do you need a lawyer to witness documents or provide you with Independent Legal Advice? We are available after hours and provide home visits to fit around your busy schedule.

Last updated on April 9th, 2019 by Jeremy Maspero

Jeremy Maspero is a family law lawyer with a diverse range of experience and skills. With the experience you need and results you want, contact Jeremy today for a consultation to understand how he can help you on 02 8052 3322 or jeremy@masperolegal.com.au

Disclaimer: The legal content on this website is produced by lawyers at Maspero Legal. It is offered for general interest only and should not be construed as specific legal advice as every situation is different. People seeking legal advice relevant to their particular situation are encouraged to contact a lawyer from Maspero Legal.