Can a Notary Give Legal Advice?

Sometimes, but not as part of the notarial act. Most Australian notaries are experienced solicitors who may advise on Australian law as a lawyer. When notarising, though, their role is impartial: they confirm identity and signatures, not whether the document is right for you. Advice on foreign law usually needs a lawyer in that country.

Key takeaways

• A notarial act is not legal advice; it confirms who signed, how and when.
• Most Australian notaries are experienced solicitors, so they may be able to advise as a lawyer.
• When acting as a notary, they act impartially, for the people who will rely on the document too.
• A notary who advised you on a document may decide someone else should notarise it.
• Advice on foreign law usually needs a lawyer in the country where the document is used.
• Ask up front whether you are getting advice or just a notarial service.

Who are Australian notaries?

An Australian notary is not the same as a notary in the United States, where the role is typically held by a commissioned lay witness. In Australia, notaries are appointed under state and territory arrangements: in most by the Supreme Court, and in Queensland through the Court of Faculties of the Archbishop of Canterbury. They are usually experienced solicitors, and they keep a permanent register of the notarial acts they perform. Our guide to notary rules by state explains how the arrangements differ.

Because most notaries are also lawyers, people often assume that booking a notary means getting legal advice. It does not, automatically. The same person can wear two hats, but they are different roles, with different duties, and a notarial appointment is usually booked for the notarial role only.

What is the difference between the two roles?

As a solicitor, a person acts for a client. They advise on the client's legal position, recommend what to do, draft documents in the client's interests and owe duties to that client. As a notary, the same person acts impartially. The notarial certificate is relied on by courts, registries, banks and officials overseas, so the notary's duty runs to them as well as to you. The notary confirms your identity, checks that you understand the document and sign freely, and records what was done. The notary does not certify that the document's contents are true, and does not tell you whether signing it is a good idea.

Question	Notarial role	Solicitor's role
Who is it for?	Everyone who relies on the document	The client
Is the document right for me?	Not assessed	Advises on it
Are the contents true?	Never certified	May check, depending on the work
Who signed, and how?	Confirmed and recorded	Not usually certified
Drafting the document	Not part of the notarial act	Can draft, under the law they practise
Foreign law	Not advised on	Only if qualified in that law

What will a notary tell you during a notarial appointment?

A notary will explain the notarial process: what they are about to do, what the certificate will say, whether you need to sign in front of them, and what usually happens next, such as an apostille from DFAT. They may point out practical problems they notice in reviewing the document, such as a blank space, a missing page or a name that does not match your passport. They may also ask you to explain the document in your own words, to confirm you understand it.

What they will not usually do, in that role, is tell you whether the document protects your interests, whether you should sign it, or whether it will achieve what you want under foreign law. If you ask, a good notary will tell you plainly that it is outside the notarial service and suggest where to get advice. Our guide to what a notary public does covers the notarial role in more detail.

Can the notary advise me separately, as my lawyer?

Often, if they practise as a solicitor and the matter is within their area of practice. But that is a separate engagement, and it should be agreed as one: what advice is being given, on what law, and on what terms. It is worth being clear at the start, so you know whether you are paying for a notarial service, legal advice, or both.

There is a further wrinkle. A notary must be impartial and free of any personal interest in the document they notarise. If a notary has advised you on a document, drafted it for you, or has a stake in the transaction, they may decide that another notary should perform the notarial act, to avoid any question about their independence. Practice varies, and professional rules differ between states. Our guide to a notary's conflict of interest explains why this matters.

What about advice on foreign law?

This is where most people actually need help, and where an Australian notary is least able to give it. The document is usually going overseas, and whether it is valid, effective or in the right form depends on the law of the country where it will be used. An Australian solicitor is qualified in Australian law, not the law of Spain, India or the United States. An Australian notary can confirm that you signed the document, but not that it will work under the foreign law.

For foreign legal questions, ask a lawyer in that country. Often the person or organisation that sent you the document, such as a foreign lawyer, bank or registry, can tell you exactly how it must be signed and certified. Get those instructions in writing and bring them to the notary. Our comparison of a notary and a lawyer goes into when you need each.

Why do notaries in other countries seem to do more?

If you are used to notaries in continental Europe or Latin America, the Australian arrangement can seem limited. In many civil-law countries, such as Spain, Italy or Germany, the notary is a legal professional who prepares certain deeds, explains them to the parties and keeps the original in their records. People there often expect the notary to explain the effect of a property purchase or a company formation. An Australian notary comes from the common-law tradition, where the notarial role centres on authenticating signatures, documents and facts for use abroad. When a document is going to a civil-law country, the foreign notary or lawyer on that end is often the right person to explain it, and the Australian notary makes sure it is properly executed here.

When should you get legal advice before seeing a notary?

Get advice before the appointment whenever the document changes your legal position in a significant way. That includes powers of attorney, wills and codicils, deeds, documents transferring or mortgaging property, guarantees, documents about the care of children, and anything that gives up a right, such as a renunciation of an inheritance. It also includes any document you do not fully understand.

A notary may decline to proceed if you clearly do not understand what you are signing, so getting advice first can also save a wasted appointment. For statutory declarations made under Australian law, the Attorney-General's Department publishes guidance on how the forms work, which can help you understand the document before you declare it.

How do you get the right help, in order?

1. Read the document and the instructions. Note what you do not understand and what the receiving body wants.
2. Ask the sender. The foreign lawyer, bank or registry that sent it can often explain its purpose and signing requirements.
3. Get legal advice if needed. From an Australian solicitor on Australian law, or a lawyer in the destination country on its law.
4. Finalise the document. Make any changes before the appointment, and fill in every blank except the signature.
5. Book the notary. Say what the document is and where it is going, and ask whether anything else is needed.
6. Arrange the next step. Usually an apostille or authentication from DFAT, then delivery.

Common mistakes to avoid

The most common mistake is treating the notary's seal as a stamp of approval. People sometimes assume that because a notary witnessed a document, it must be fair, valid or in their interests. The notary confirms who signed and how. Whether it was wise to sign is a separate question. Another mistake is asking an Australian lawyer to confirm how a document will work in another country. Unless they are qualified in that law, they cannot properly tell you.

A third mistake is leaving questions until the appointment. A notary who discovers you do not understand a document may have to stop, and you will need to come back after getting advice. Our guide to the capacity and duress checks explains why notaries take understanding seriously.

Here is an illustration, not a real case.

Arjun is asked by his siblings in India to sign a relinquishment deed giving up his share of a family property. He is not sure what he would be giving up. He asks the family's lawyer in India to explain the deed and its effect under Indian law, and gets that advice in writing. He then books a notary in Australia, explains what the document is, and brings the signing instructions. The notary checks his identity, confirms he understands the deed, and witnesses his signature. The notary does not advise on whether he should sign; that was settled first, with the right lawyer.

In short

A notarial act is not legal advice. Most Australian notaries are experienced solicitors and may be able to advise you as a lawyer, but that is a separate role and should be agreed separately. When notarising, they act impartially. For advice on foreign law, ask a lawyer in that country, then bring their instructions to the notary. Our document notarisation services page explains how this works with us.

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Not sure whether you need a notary, legal advice or both? Send us the document and the receiving body's instructions, and we will explain each step before you book.