The following question has been raised in our office and I cannot find a definitive answer, so wonder if it has been considered by any other members of the forum.
If a (say) corporate lawyer is acting as a trustee of a trust, and his firm (but not him personally) is acting in the administration of the trust, can the solicitor trustee charge for time which he personally spends, e.g. in making decisions about distributions from the trust, or perhaps review meetings with investment managers?
I appreciate this will depend on the terms of any express charging provisions in the trust instrument, but for the purposes of this query I am thinking in particular of the wording of the Trustee Act 2000, which is to some extent replicated in the STEP provisions. The Act permits a trustee to charge (subject to certain restrictions) if he is acting “in a professional capacity”. Under S 28(5) of the Act, it states that a trustee acts in a professional capacity if he acts in the course of a profession or business which consists of or includes the provision of services in connection with (a) the management or administration of trusts generally or a particular kind of trust, or (b) any particular aspect of the management or administration of trusts generally or a particular kind of trust, and the services he provides to or on behalf of the trust fall within that description.
Does it matter that the profession or business of the trustee himself does not include the provision of trust administration services, because he is not a lawyer working in the field of trusts? Or is it sufficient that the business itself does provide those services?
Diana Smart
Gordons LLP