The Gazette 1996

C T I C E

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putting into effect the enduring power of attorney.

requisitions and satisfactory explanation of our searches".

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. Powers of Attorneys Act, I996\ enduring powers of attorney

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.

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

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

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

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