When it comes to stepping down as Deputy, it is not an easy or quick decision in the same way it may be when deciding to step down from any other role.
This may sound ironic given that Deputies devote their entire career to helping clients plan for the future through careful budgeting and that is again what is required here. If you are a Deputy thinking of retirement it is important to bear in mind that the whole process of stepping down and handing over your clients can take anything from a few months to a few years especially if you have many clients.
As a Deputy, it is common knowledge that applications to the Court of Protection can take up to 12 months (or more!) to be processed. But what else do you need to consider prior to the application being submitted?
First and foremost, your clients. Our clients are at the absolute heart of what we do and so it is important that we first think about how we are going to approach the subject of stepping down with them. Some of our clients are particularly vulnerable to change and, as their Deputy, you are a huge part of their life and may well have been for several years, some even since childhood.
The cost of changing Deputies
The cost of you retiring as Deputy is being borne by the client so you want the process to be as smooth as is possible to help keep those costs to a minimum. Not accounting for the professional time in dealing with the transfer, there will be the cost of:
- The capacity assessment,
- The Court application,
- Managing client and family expectations, and
- Contact with third parties, including the case manager, who will need to be aware as soon as is possible and aware that you are discussing this with the family/client.
With this in mind, if you have a pre-settlement case, it important that this is included as an anticipated cost within a schedule of loss. If the client is a child, this could happen as many as 3 times in their lifetime.
Who picks up the pen going forward?
When it comes to deciding whom to recommend to the client/family as your replacement Deputy, you are going to want to appoint somebody you know you can trust to continue to act in your client’s best interests with the least amount of disruption. Whilst you can recommend a replacement, your client and their family may want to do some research of their own or have someone else in mind.
You also need to be mindful of the cost of any future transfer that may be needed and so, when thinking about whom could take over, you need to consider the longevity of their instruction. As well as the option to transfer to another individual, one possibility, would be to consider transferring to a Trust Corporation.
Private Deputies and Trust Corporations
The main benefits of transferring to a Trust Corporation are (but not limited to):
- Flexibility! More than one person being available – this is particularly useful if one of the Directors are unavailable either due to meetings, personal circumstances or are on holiday and a payment needs to be made in their absence.
- In the event one Director is looking to step down or retire themselves, the Trust Corporation can continue to act on the client’s behalf, the idea being that they do not need to go through another costly transfer to a new Deputy.
The idea of switching from an individual Deputy to a Trust Corporation can initially feel a bit overwhelming to both you and your clients but the right Trust Corporation should be structured on the grounds of making decision making on behalf of the client more efficient and cheaper whilst retaining the personal connection between your clients and their case handlers. Regardless of whether a client has appointed an individual Deputy or a Trust Corporation the service and support the receive should always be tailored to their needs and remain personable.
Trust Corporations generally have multiple Directors available to meet the needs of their clients. That should not mean that clients and their families deal with multiple people on a day-to-day basis. It is often the case, as it very much is here at Enable Law, that the client would have a main point of contact, so one Deputy, within the team. That Deputy will then be supported by junior members of their team to ensure cost efficiency for the client. The Deputy will of course be involved with any decisions made for the client and available to them as and where needed or wanted. The approach is personalised to the individual needs of each client.
Stepping down is a huge decision for you as Deputy and can often be a difficult decision to make, especially when you have worked with your clients for a long period of time. Whilst you will have no doubt made some very significant decisions during your appointment, whom you recommend taking over may just be your biggest one yet.
Alison McClure, a Partner here at Enable Law, is in the midst of taking steps towards retirement as Deputy and will certainly be looking back on her time as Deputy fondly:
“It has been so lovely to work with my clients for so long, particularly those I have worked with since they were children as I have seen them grow and progress as adults. My clients have been such a big part of my working life for 20+ years so I will miss them. I am, however, happy in the knowledge that I shall be leaving them in very safe hands.”
Joint Deputyships?
This article is largely focusing on cases where a Deputy considering retirement is appointed as sole Deputy, but it is not uncommon for a joint Deputyship to be in place. It may be that there is a family member appointed alongside you. When it comes to stepping down on these cases, you need to consider whether your co-Deputy is appropriate to continue as the client’s sole deputy. Some of the questions you should consider at this stage include:
- Why was the joint Deputyship put in place in the first place?
- How has your co-Deputy coped with their role to date?
- If there are large funds or complex assets involved, are they appropriately qualified to manage those levels of funds on the client’s behalf?
- How is the co-Deputy going to react if you do not believe it is in client’s best interests for them to continue alone?
These points may help give you an initial steer on how to approach these conversations as they need to be handled very carefully as their outcomes will have a big influence on the contents of the application and ultimately the client.
The Application
This article is not going to cover the intricacies of the Court application as you will have already gone through a similar process when being appointed as Deputy yourself; however, when it comes to planning ahead, this could have a significant impact on timings.
More often than not, the court will ask for a new capacity assessment as part of the application even where you have a recent assessment on file or, in pre-settlement cases, a recent litigation report. It is worth being prepared for this as it will both carry a cost for the client and add more time to your timeline.
If the client has had several assessments in the past but not a recent one, it may be that one of the former assessors can complete this. This often speeds things up and reduces cost as they are already familiar with the client. This also helps put the client and their family at ease as it is someone they have met before.
A few practical points to consider
Now, you may have already considered the fact that all parties, such as utility providers, case managers, therapists and other professionals will need to be updated that you are no longer Deputy; but what about all the contracts you have signed? During your time as Deputy, you will have no doubt signed a number of contracts, such as tenancy agreements (both on behalf of P as tenant OR landlord), declarations of Trust or employment contracts for care staff directly employed. All of these will need to be updated.
In an ideal world, you would have any big-ticket items completed prior to retiring; however, it may be that you are handing the Deputyship over in the midst of property adaptation works. If this is the case, there will be works contracts that need to be revised, removing you as Deputy. In connection with a completed purchase, it may be that you were appointed as Co-Trustee over the property and so the title at the Land Registry will need to be updated.
Insurance policies is another area of risk and so, as soon as you have retired as Deputy, any insurance policies need to be updated into the name of the new Deputy to ensure that they remain valid.
Your name, as Deputy, is bound to many documents, so there is certainly a lot to think about in both the practical and technical aspects of retiring.
Enjoying your retirement with no strings attached!
We have been focusing on the idea of a Deputy stepping down in their role (but perhaps continuing to work) but, what about when they are looking to retire from the working world entirely?
In addition to the client considerations above, if you are looking to fully retire, the ideal scenario will be that you step down from your Deputyship roles first. The main reasons for this are:
- If you are no longer on the ground and working with your team, you may find yourself in a position where you are making decisions on limited information, which can feel daunting and expose you to more risk,
- You firm’s insurance may no longer cover you / you may need to put your own insurance in place.
Our advice would be to retire as Deputy (or Trustee/Attorney as the same considerations apply) on all matters before the big day to avoid these potential complications.
If you are thinking about ‘putting down the pen’ and you are not sure where to turn, our Mental Capacity team here at Enable Law, will be more than happy to speak to you. We have a very experienced team of solicitors who understand the complexities, emotion and challenges that come with caring for someone who is mentally incapacitated. Having hundreds of clients all over the country many of whom came to us after their previous deputies stepped down, we are very experienced in helping both deputies and clients to make the transition to working with someone new as smooth, cost effective and easy as possible.
If you are a Deputy considering retirement and want to have a free, confidential discussion with us to explore whether Enable Law would be a good fit for one or more of your clients, email Leigh at Leigh.McDonough@enablelaw.com or contact our team by calling 0800 044 8488.
