One of my colleagues is dealing with a Lasting Power of Attorney where the donor has now lost capacity. The LPA appoints two of my firm’s directors as the attorneys, but there is no express charging clause.
The Office of the Public Guardian’s guidance of 3 March 2017, section 7, states that a professional has no power to charge if the LPA is silent on fees. The Law Society’s guidance of 7 June 2016, section 9.4, states that a charging clause should be included on the LPA.
A question on Practical Law published on 25 March 2015 states that if the LPA form is silent on charging, that there will be an implied contractual agreement that the attorney should be remunerated (relying on chapter 8 of the book A Practitioners Guide to Powers of Attorney by John Thurston, 8th edition, 2012). The reply goes on to state that the solicitor could be on a sticky wicket if the donor wasn’t informed about the likely charges.
In this case, there is a file note stating that the client was informed that charges would be made at our standard hourly rate, but nothing further than this.
My question is: where do we go from here? There is no express charging clause but we need to get paid. Should we apply to the Court of Protection for an order to be paid?
I would welcome any views on this topic and/or any personal experience of the same problem.
Philip Evans
Graham & Rosen Solicitors