Powers of attorney and executries

Circumstances in which a solicitor acting as administrator of a client’s funds or in a representative capacity should have their fees assessed independently by an auditor

The Journal, March 2003, page 9

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A solicitor who acts either as an administrator of a client’s funds under a power of attorney or in a sole representative capacity – eg a sole executor – should have his fees assessed independently by an Auditor of Court to afford protection and reassurance to those interested in the estate and to the solicitor in relation to a challenge on the amount of the fee.  In these circumstances it will be sufficient to forward the file to an auditor for assessment of the fee without the need for a formal taxation, although if the residuary beneficiaries require the account to be taxed they are entitled to do so.  

A solicitor who is a co-executor with an unqualified person should not make a unilateral reference to an auditor for taxation of the account.  Such a reference will need the concurrence of the other executor(s), and the Auditor may require intimation of the taxation to any other party with an interest in the residue of the estate.

Where the grantor of a power of attorney is still capable of giving instructions the fee note should be copied to the grantor when it is prepared following assessment by the Auditor.

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