What is Legal Aid and What Does it Cover?
Legal aid is a government-supported initiative that aims to support individuals who need legal representation or advice but cannot afford it. It is typically provided for the resolution of civil and criminal matters. This means if individuals are unable to represent themselves in legal proceedings due to a lack of financial means, the legal aid system can provide assistance; however, criminals are not entitled to financial support to break the law.
Legal aid provides access to justice for those who do not have the financial means to pursue or defend a legal case. The purpose of legal aid is to ensure that everyone has the opportunity to participate in the legal system. Legal aid is usually provided by either legal representatives in private practice funded through legal aid or a publically run organization.
Three primary types of cases legal aid covers are civil , family law, and criminal cases. In civil cases legal aid might assist with housing issues, debt, discrimination, welfare, benefits, employment, consumer rights, education, and more. Family cases are provided legal aid in domestic violence cases, forced marriage, child abuse, and care proceedings. Legal aid does not cover other family matters such as divorce, contact arrangements, and financial settlements. The Criminal Defence Service (CDS) is a legal aid system that covers legal aid for defendants in criminal cases.
Legal aid is funded primarily by the government from the legal aid tax and administered by various legal aid authorities across a set jurisdiction. Unless otherwise directed by legislation the Government controls legal aid funding and its eligibility.
Scope of Legal Aid Coverage for Wills
Legal aid services relating to wills are available in many jurisdictions, but the extent of that coverage is limited. Across Canada, for instance, Legal Aid Ontario provides some estate planning services (such as representation at mandated court appearances, and service referrals) through community legal clinics, but does not offer assistance in preparing wills. In Quebec, assistance in preparing wills is provided free of charge by services such as the Centre de justice de proximité du Bas-St-Laurent and Parrainage bénévole.
Although the costs associated with administering an estate can be minimized by using cost-effective estate planning strategies, there are generally no exemptions from paying fees that are charged by lawyers and other estate administrators. In British Columbia, for example, the Public Guardian and Trustee offers limited assistance to individuals facing financial hardship, such as helping to complete an application for a fee waiver.
In Manitoba, assistance in preparing wills is only available to people who meet the income threshold requirements (which are reviewed every six months), and even then, a waiting period is often required.
The Ontarians with Disabilities Act clearly states that people with disabilities should generally "have the same opportunity as everyone else to make for themselves those financial and legal choices that will put them in control, and have their costs of making those choices funded on an equal basis with others." Unfortunately, this is not currently the case.
Given the administrative costs and other inconveniences that can arise after a death, clear-cut rules that give individuals flexibility in estate planning in order to minimize those costs are more likely to be beneficial for estates.
Who is Eligible for Legal Aid Services?
The crime of not making a will and dying without one, known as dying intestate, can significantly impact the ability of a person to benefit from legal aid services. Value of estate, known as your net assets, must be considered as a primary factor when determining eligibility for legal aid services. The threshold for legal aid will pay for an estate that is eligible for a small claim (Economic Triage) – $10,000. The net estate must not have enough money or assets to pay for a lawyer. The estate must not have a value above $60,000. Otherwise, the estate may be ineligible for legal aid funding and the estate will need to pay for a lawyer directly. Additional factors are considered when assessing the eligibility for a legal aid estate application:
- on the asset side it is determined whether the applicant owns real estate, bank accounts, stocks or investments, personal property and cash.
- on the liability side, amounts owing under mortgages, loans and other debts are considered.
- an estate representative must not have any other net worth, such as jointly owned assets.
- the applicant’s age may also be considered. The exception applies to the senior age group of people over 65, who may receive legal aid support without proving the net worth test.
- Certain exceptional circumstances are considered, such as health problems, disability, those living in remote areas where a legal aid representation is not available.
Legal Aid Alternatives for Will Drafting
Even if you don’t qualify for legal aid assistance in matters relating to wills and probate, don’t despair. There are alternative options available.
If your family budget doesn’t stretch enough to find room for even an inexpensive lawyer’s fees, you still have options. Many legal clinics across Canada have regular sessions at the courthouse, in libraries, or other public spaces where low income families can visit with a lawyer for a one hour appointment. Some of these may charge a small fee, but the fee is considerably less than you would otherwise pay.
Individuals and families who don’t have the ability to access legal aid and who can’t afford a lawyer may be able to rely on volunteer lawyers who give up their own time and offer legal services free of charge . Pro bono services are offered through Lawyers’ Rights Groups in British Columbia, the Pro Bono Ontario program in Ontario, the Pro Bono Canada program run by the Canadian Bar Association, and the Pro Bono Students Canada program run at various law schools across the country. Though this is not a statutory entitlement, many lawyers make a valiant effort to provide help to those who cannot afford to pay for representation.
Some individuals opt to use online platforms offering DIY legal forms that they are able to fill out on their computers for no charge. We always say that you risk a lot by not having a lawyer help you with your will because of the detailed requirements of creating a valid document; however, if there is no chance that you could afford to hire counsel, this is certainly better than nothing!
FAQs about Legal Aid and Wills
1. Can I get legal aid to help me prepare a will?
You may be entitled to assistance from a Community Legal Centre or a Legal Aid NSW Wills and Probate Service if you meet their service criteria and your matter falls within their service area.
2. Does Legal Aid help people with wills for free?
Legal Aid can help you with your will for a very small fee. It is important to note that there are fees associated with witnessing your signature and with having it all ready – this will usually be a small amount, but below is a breakdown of the fees associated with Legal Aid:
3 . What is the process if you have never spoken to a lawyer before?
You must first come in for an initial assessment so that a lawyer can speak to you and confirm your eligibility for assistance.
4. Do I need to apply in writing for aid?
No. A complete welfare rights lawyer will take your details and fax them to the Legal Aid office (if you don’t have a lawyer yet) or to your current welfare rights lawyer (if you have their contact details). You cannot apply in writing for legal aid online.
5. How long does the process take?
You try your best to complete the application on the same day so that you are not too stressed out. Sometimes it’s better to leave it for another day if you’re not feeling well enough to provide the information.