Can Power of Attorney Pay Themselves?

Can Power of Attorney pay themselves? Acting as an attorney is a labour of love, and I’ve heard this question touched on guiltily many times, even by the most patient and long-suffering of attorneys. They have typically spent endless amounts of their own time -and usually money – over the years, looking after the donor of a power of attorney, at a very vulnerable time in their life.

Can power of attorney pay themselves?
Can Power of Attorney pay themselves?

In short, lay attorneys such as family and friends are not usually paid for their work as an attorney. The job is typically done out of love for the donor. However, as an attorney, you are fully entitled to reclaim any expenses that you may incur in the performance of your duties. This covers your travel expenses, postage, telephone calls and stationery, for example. You should keep receipts and invoice the donor regularly for your expenses. My experience is that in practice, the great majority of lay attorneys omit to claim expenses, probably because they tend to feel guilty about it, but it is completely legitimate to claim for these costs if you wish to do so.

Can Professional Attorneys charge for their Services?

Sometimes, someone may not have a family member or friend whom they feel comfortable appointing as their attorney, and so they may choose to appoint a professional attorney instead. This is likely be a long-standing, trusted adviser such as a lawyer, accountant or financial adviser. In that scenario, the question ‘can power of attorney pay themselves?’ may be answered with a qualified ‘yes.’

In order to allow a professional attorney to charge for their time, the Office of the Public Guardian recommends that a charging clause must be incorporated into the Lasting Power of Attorney, setting out in advance the basis on which a professional attorney proposes to charge. This might be by way of an annual fee (relinquished if the value of the donor’s estate dips below a certain amount), or possibly an hourly rate. There should be reference in the charging clause to the fact that fees may increase over time. If the Lasting Power of Attorney does not mention fees then a professional attorney cannot charge for their work, so it essential that this issue is dealt with up-front.

It is important to agree in advance on the parameters of a professional attorney’s involvement, and how they plan to work with any lay attorneys appointed alongside them, so that there is a sensible plan of action in place.

Professional attorneys are appointed personally, so even if your attorney was to retire or move jobs, their appointment would continue, unless they also decided to step down from their role as attorney. It is useful to discuss in advance what you would want to happen in that situation – should a colleague of theirs take their place, or would you want them to continue acting for you regardless?

In summary, a lay attorney can only reclaim their expenses, but a professional attorney may charge for their work, as long as this is agreed up-front and a suitable charging clause is incorporated into the Lasting Power of Attorney.

Chiltern Wills is a friendly, professional Will writing business based in Beaconsfield and run by former London solicitor Rebecca D’Arcy. We advise clients both in person locally and all over England & Wales via virtual meetings. If you would like to discuss making Lasting Powers of Attorney, call us on 01494 708688 or email info@chilternwills.com.

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