I am having a mental block.
If a client wishes to appoint professionals as her Attornies under an LPoA. Is it necessary to stipulate that the Attornies can charge for acting in this capacity?
Many thanks.
Martyn Dixon
Harold Bell Infields & Co
It’s better if you do, but not strictly necessary where a professional is involved. It’s essential when appointing a lay person who is to be remunerated.
Bowstead & Reynolds puts it this way, at 7-004, but be warned that the cases from which the passage is derived are of only doubtful support:
“Apart from claims in restitution, the rendering of services to another, however long continued, creates no right to remuneration unless the agency contract expressly or impliedly makes provision for such payments. If there are no express terms relating to remuneration, terms providing for remuneration will only be implied where the circumstances are such as to indicate that the parties intended that there should be remuneration. In general, however, the mere employment of a professional person raises a presumption that it was intended that that person should be remunerated unless there are circumstances indicating the contrary. So, there is no general principle that fiduciaries are not entitled to remuneration without express consent. The position is different with company directors, who, like trustees, are entitled to remuneration only if express provision is made therefor. Consistently with the foregoing principles, it is unlikely that a court would imply a right to remuneration in favour of a relative or friend of the donor under a power of attorney; the relationship would generally be non-contractual. The position would likely be different where the attorney appointed was a professional person.”
Josh Lewison
Radcliffe Chambers
Short answer: Yes.
Long answer: The Public Guardian’s practice note says:
Professional fees
Remember you have no power to charge for your services if the LPA is silent on fees.
You (or your representative) should:
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detail any retainer fees or fees for storage of the LPA in the LPA itself
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clearly tell the donor about your fees for acting under the LPA, as well as any one-off fees for drawing it up
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discuss and agree your current fee rates with the donor
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tell the donor that your fee rates are likely to increase over time
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tell the donor that you may charge fees for a considerable length of time if the LPA becomes active
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consider giving the donor examples of typical fees charged in different scenarios to help them to understand the financial commitment they are entering into
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consider exploring with the donor scenarios where large fees may accrue – for example, if the attorney challenges care-funding decisions
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consider geographical distance from the donor and tell them visits are chargeable and the effect their moving house would have on fees
Hope this helps.