12. Commission.
A Curator is remunerated for Factorial Work by way of Commisson.
The Accountant fixes the commission due to the Curator at the audit of Curator's Accounts 1. Commission will be fixed by the Accountant at such sum as the Accountant in his experience considers reasonable for the work performed, keeping in view the size of the estate and the income ingathered. In general it is not considered appropriate to fix commission on an hourly basis and commission is therefore fixed on a percentage basis. One of the purposes of a Curatory appointment is to protect the estate. The Accountant must therefore ensure that the commission is not fixed at such a level that it takes an undue percentage of the revenue available to the Ward.
The appointment of a Curator is personal to the individual and the commission fixed to the Curator is only subject to VAT where the Curator is both registered for VAT and carries out his factorial duties in furtherance of business activities.
(i) Where a Solicitor acts as Curator and his firm carries out legal work on behalf of the Ward his/her firm may not charge a business account against the estate 2 and will fall to be remunerated by way of a fee being included to cover the work in the commission fixed at the audit of the annual Account. The exception to this rule is the expenses of the Curator's appointment.
(ii) Outlays for legal work properly incurred may be charged against the estate as and when incurred, without reference to the Accountant.
Subject to what is written under "Solicitor Curator", legal accounts require to be submitted to the Accountant who will intimate whether he requires them to be taxed by the Auditor of Court.
A Curator is not entitled to enter into legal proceedings or take the Opinion of Counsel without first obtaining the Accountant's approval. If the Accountant's approval is not obtained and the Accountant considers the expense to have been incurred unnecessarily he may disallow the charge in the Curator's Accounts.
15. Agents acting on behalf of a Curator.
A Curator's normal work is termed as "factorial" work. The Curator has a duty to carry out this work and where he/she employs agents (a solicitor or accountant) to do this work, then the Curator is personally liable for the agent's charges. In practice, the agents will normally set off their charges against the commission fixed to the Curator at the audit of his/her annual Account. The only work which would not be termed factorial in nature is strictly legal work and charges for this work will form
a proper charge against the estate, subject to what is written in the Notes on "Legal Accounts" and "Legal Proceedings".
1 Judicial Factors Act 1849 Section 13
2 Mitchell & Ors v Burness 1878 5R 1124
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