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P R A
What might be considered a reasonable
and fair professional fee which should
be charged by solicitors for preparing
the new enduring powérs of attorney
established by the
Powers of Attorneys
Act, 19961
The question is as broad as it
is long.
There is no straightforward or simple
answer to such a question. There will be
opposite ends of the spectrum in respect
of this transaction.
For example, there may be quite
straightforward enduring powers of
attorney, say, executed as between
husband and wife either at the time of
making or execution of a will or
preparing a codicil to an existing will.
These would fall under the lower end of
the spectrum and a fee in the order of
£150 or thereabouts for each power of
attorney would be appropriate.
Into the next category would fall cases
where there may be some substantial
amount of investigative work on the
part of the solicitor, such as effectively
gathering in assets, satisfying himself as
to the criteria and testamentary and
mental capacity of the donor and
establishing with clarity the precise
intentions behind the power of attorney
and giving consideration to the question
of the attorney's provision situation.
Each one of these situations would have
to be taken on its merits as undoubtedly
there would be situations whereby the
assets may be straightforward or indeed
the solicitor may already possess a list
of the assets in the context of estate
planning, taxation and inheritance tax
advice. Consequently these situations
would want to be considered in
isolation.
However, taking a situation where a
new client would call to a solicitor, s,eek
instructions and advice, a fee in the
order of £500 might be appropriate for
C T I C E
N O T
putting into effect the enduring power
of attorney.
After this, there is a third category
which involves careful consideration as
to the mental capacity of the donor. This
is a very careful and subjective
assessment requiring medical advice
and careful consideration of the issues.
Indeed, it is my experience that in cases
where there are issues of mental
capacity in addition to the medical
advice, there will usually be an element
of infirmity on the part of the donor
which often necessitates physical
attendance at the donor's house or
nursing home or hospital.
In addition, there would also be a
requirement that the power of attorney
be registered in the Wards of Court
Office. For attending to all these duties,
an appropriate fee would be in the order
of£600.
As in every rule, there will be
exceptions and the above guidelines
should be treated exactly as such. As
always, there will be those solicitors
who would give the matter very
considerable attention and there will be
those who deal with the matter on a
more cursory basis but yet achieve the
same result. Consequently, a degree of
restraint and caution should be
considered in relation to the guidelines
referred to above.
Paul Behan
Postal Closings
As a vendor's solicitor, how often have
you received a letter from the
purchaser's solicitors in the following
terms:
"We enclose a bank draft in respect of
the balance of the purchase money
payable. Same is being sent on trust,
pending receipt by us of our closing
requirements in accordance with our
E S •
requisitions and satisfactory explanation
of our searches".
Where there is a formal closing of the
sale, the vendor's solicitor is in a
position to release the purchase monies
to his client forthwith. If he closes the
sale on the above terms, the vendor's
solicitor is unable to release the money
to his client and, further, he is unable to
say when he will be in a position to
release the money to his client.
When the balance of the purchase
money is furnished on the above terms a
number of questions arise:
• When is the sale deemed to be closed?
• When does the risk pass to the
purchaser?
• When is the purchaser entitled to get
the key?
Because of the dangers inherent in
closing sales through the post, in 1986
the Conveyancing Committee issued a
code of practice for the closing of sales
through the post. The purpose of this
code of practice was to create a standard
procedure for closing sales through
the post.
For those practitioners who may not be
familiar with its contents, the code is
printed below.
Many transactions require personal
closing. In the event of a loan cheque or
the title documents being lost in the
post, a solicitor may not be in a position
to comply with any undertaking given.
Accordingly, caution must be exercised
when considering the completion of a
transaction by postal closing.
Code of practice:
closing of a sale by post
A sale of property is normally
completed by the purchaser's solicitor
attending the vendor's solicitor's office.
On occasion the purchaser's solicitor
will elect to close by post. While
disclaiming responsibility for any
adverse consequences of this practice,
the Conveyancing Committee suggests
387
Powers of Attorneys Act, I996\
enduring powers of attorney