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good afternoon and welcome to a special presentation brought to you by the Law Society of BC and the continuing legal education Society of BC I'm Dina bales I'll be your host for today's webinar succession planning it's good practice I'm also a communications officer at the Law Society of BC today's session is eligible for CPD credit at the end of the session you'll need to register your credits through the Law Society's website as you normally would we're going to answer the who what where when why and how of succession planning at today's webinar you may have questions such as who should I get to do it what is it where do I start when should I do it why should I do it and how do I do it in addition we're also going to have questions at the bottom of your screen these poll questions we have one up there now if you haven't had a chance to answer it yet you can do so now in addition we're also interested in your questions and you can ask them at any time in the chat section of your screen and we'll try and get to them and we certainly hope that you will be asking questions and taking advantage of the experts that we have with us today and they are Bruce Thompson and shirelle Goodwin Bruce is a civil litigator who has been practicing for 34 years he's been a sole practitioner for the last six of those years and he's acted as a custodian several times since 1993 at the request of the Law Society in addition he's one of the authors of the sample documents that were provided to you for this course and he's also a self-described poster boy for procrastination on the subject of making his own succession plan welcome Bruce thank you and Sheryl Goodwin is the manager of the custodian ships Department for the Law Society a number of F's could result in your clients getting to know someone in her department if you have an urgency that results in you being unable to practice if you didn't indicate a winding up caretaker on your own trust report and if you don't have a succession plan in place and there's no one else at your firm to take over your files then it's pretty likely that your clients will be getting to know someone in Shirelles department as a custodian and shirelle herself has managed some 50 custodian ships and she came to the Law Society five years ago and before that she practiced civil and criminal litigation welcome Cheryl thanks Dana so let's get right into the who what where when why and how of succession planning let's start with the what so that we're all on the same page sure al what is succession planning when we're talking about it today what is that succession planning is basically planning a successor for your practice and there's two main kinds that you may want to look into what is planning for your retirement which we're not going to focus on today what we're focusing on today is planning for emergencies there are some similarities between planning for emergencies and planning for your retirement and those include determining who's going to take care of your practice how you're going to give them the legal authority to take care of your practice and where you're going to keep the documents and everything that they need now obviously the difference is control you can control when you retire to a certain extent but you cannot control when an emergency may happen so it's important to get that plan into place and we're also gonna be talking a lot about a winding up caretaker Bruce can you tell us what that is well a winding up caretaker is another lawyer and that's the person that you will put into place in order to take care of your business and your law practice if anything unforeseen happens to you so this is a very important person for you it also doesn't necessarily mean that they're going to be winding up your practice but they're going to have a very significant voice into how your business affairs are dealt with if anything happens to you unexpectedly let's move to the results of our poll question now if you agree to be a winding up caretaker do you have to do it 43 percent of you said yes you have to do it and 56 percent of you said no you don't have to do it Bruce what is the correct answer there the correct answer is no you don't have to actually go forward even if you have been designated and if you do go forward with your planning and you look at the law practice coverage agreement that is on the law society website you'll find that you're actually given an opportunity to look at a practice for a couple of weeks before you decide to enter the water and to discharge your function as a designee and we know that in terms of those of you who are participating today we know that many of you are sole practitioners who need to put in place your own plan and some of you work in firms of a certain size so that you may not actually need to have your own succession plan charelle what are you hoping that both groups of people will get out of today's session well I'm hoping that today those of you who are sole practitioners will go away with some ideas and tools on how to start your own plan particularly who's going to wind up your practice or be the point person if that happens for those of you who are not sole practitioners I would really like you to consider becoming or volunteering to become a winding up caretaker for your colleagues it's something that really provides a service to the community and we'd like to see that out there we have a question coming from delwyn stander he's asking isn't one reason for saying that you must be the caretaker if you agreed to be because you're honoring your words sure al would you like to take that one well I think it's it is true you are honoring your words agreeing to be the winding-up caretaker is a large undertaking just as it is if you're going to be an executor now you do have the ability as if you're an appointed executor under will you have the ability to renounce that position you have the ability to renounce as a winding up caretaker we're not going to force you to do anything however as the caretaker you're the point person you can look at the practice make some decisions about whether it can be maintained or wound up go ahead and take those steps if you add all can and if not the Law Society is there to help you can contact us and we can see what else can be done we do encourage you to act as a winding up caretaker if appointed but it's not a buying contract we have another question here coming from BD Davis he's asking how our lawyers paid if they agreed to be a winding up caretaker Bruce perhaps you could take that one well this is the most difficult question and it's probably the most important reason why we haven't all actually put a winding up caretaker in place I think the answer is that you can make any financial arrangement that you like but you're going to have to make that in the first instance with the person who designates you as the winding up caretaker and of course that means that you're going to have to have had a conversation about that the person who has designated you is going to have to have resources in place for you and this is as I said probably one of the main reasons why so many people have not actually put into place a full scale arrangement and you have to get paid at all well you don't have to do anything maybe that's the most important thing but if you do decide to do to go forward it will depend on how you approach your job I think the reality from my experiences that you're going to find that there's an awful lot of things to do and I think another thing is it depends on whether or not the person who you've designated as for example a lifelong friend and colleague who has taken on the role because they they will want the right thing to happen for you but it may be very different in circumstances where in a rural community there isn't another person like that and you have to make a business arrangement so nothing as Cheryl said nothing is written in stone you have an opportunity to make whatever Arrangements you want I think the purpose of today is to just get you to think about why you need one and how you're going to go about doing and let's move into the why now and talk a little bit about why people aren't dealing with it I'm going to add another poll question right now which is why aren't you making a plan a are you too busy or is it not a priority B is it uncomfortable to think about and you don't know anyone who can act for you or C or rather see do you don't know anyone who could act for you so if you want to go ahead and answer that now while we're waiting for the results of those to come in Bruce as the the poster boy perhaps you can tell us why you haven't made your own plan yet well that's a very interesting question Dana and it's one that I asked myself when I was asked if I was going to participate in this and I guess I am a bit of a poster boy I did participate in drafting the coverage agreements I've thought a lot about sort of the state and I would say to you that the first reason is that I simply was too busy this never actually got to the top of my to-do list and I think one of the reasons in retrospect was that I felt it was a much larger project and undertaking than in my happy case it had to be and I think the second reason why I didn't do it is that I really had no financial plan for how I would pay someone or could my practice afford it or where would the money come from and I never took the time to actually sit down and deal with it so let's take a look at the reasons why the rest of you have not been making a plan and coming in at 54% or saying that it's - they're too busy or it's not a priority six percent of you say it's uncomfortable to think about and thirty-nine percent of you say that you don't know anyone to act for you so ultimately if you don't have a plan as we mentioned during the introductions you could end up having all your clients in the custodian shifts department at the Law Society so let's just take a step back for a moment and talk to Cheryl about what exactly the Custer ship department does well some of you may know but hopefully not many of you know that the custodianship department basically ensures that there is practice coverage for sole practitioners who can no longer practice there are different ways of ensuring this takes place one of them is contacting your winding up caretaker if you've already put one in place and just making sure that things are being taken care of we can also ensure there's a private locum agreement so a contract between yourself or your state if that's the case and another lawyer or we can go to court and ask the court to appoint the law society as custodian our main goal is to make sure your clients are protected their interests their files and their trust money by statute if we're appointed custodian we must protect the interests of your clients we may preserve the value of your practice that's not the best business plan for you it it helps your clients but it doesn't help your business so really having the winding up caretaker in place is a better plan you have more control over what's going to happen to your practice and you can cover that speaking with your winding up caretaker in creating a law practice coverage agreement that would ensure that things are done the way you want them to be done so can you tell us in terms of why a succession plan is important well actually why don't we get why don't we get you to answer that first out there I just put in another poll question why is the succession planning important so is it a for my clients being for me and my loved ones or C for the Law Society and while we're waiting for the results of that to come in shirelle perhaps you can tell us why succession planning is important for clients well for clients you want to make sure their interests are protected custodians we can do that and as I already told you a court-appointed custodian that's our main focus however we don't know your files we don't know your clients we don't know your practice we may have to travel to get there it's going to take us some time to get up to speed with what's happening in your practice also we can take care of your clients immediate needs but we cannot continue to represent them on a long-term basis we're still going to refer them on to new counsel eventually so at some point there's no continuity of care there your clients would really benefit from having someone that can either keep them as clients or make sure they get into the hands of another lawyer as quickly as possible so that their interests are protected okay and we have a question that came in for you sure al okay should we consider a successor lawyer who practices in the same area who might by our practice in the event of death that is a very good plan and it is something to keep in mind and these are all Arrangements you can work out ahead of time however if you don't have someone who's in the same area as you are or you're in a smaller community it doesn't have to be someone who can take over all your clients but someone who acts as that point person so if you have a varied practice you might have a family law practitioner as your successive sorry you're winding up caretaker they can point your clients in the right direction it just depends on your situation and we have the results of our poll in now and 69% of you are saying for my clients succession planning is important 20% are saying for me and my loved ones and nine percent are saying for the Law Society first can you tell us a little bit about why succession planning is important for lawyers themselves well I think shirelle has touched on two very important things the first is that we do have an obligation to our clients and if there is a complete void it will usually result in the clients having to contact the Law Society but what's happened to us rather than someone who we've designated who put someone in place to help us out the second thing that Cheryl touched on and it's in my personal opinion a function of what's happened over the last 20 years is that the Law Society is not there to look after your financial interests period they don't take on that role there's a section of the legal profession act about preserving and protecting the value of the practice but it's subject to client interests and they go in and look after the clients so if you don't have somebody who's going to say are we going to keep the staff on is the rent going to be paid how are we going to deal with the business side of things what about the receivables well I can tell you that in today's world the Law Society doesn't see it as its mandate to collect those so all the business aspects of your practice are going to be second tier if there's a custodian and on the point of money there is a question here that if there is a payment agreement in place or excuse me if there is no payment agreement in place does the Law Society assist in ensuring that you get paid I think I can answer that one and say no in in the case of a locum agreement or a winding up caretaker that law society is not responsible for making sure that there is payment that would be a private agreement if there's a custodian ship appointed then the Law Society takes over and winds up the practice and even we don't often get paid so it's a private agreement if there's a payment agreement in place that's a contract and and you guys have to figure that one out we have another question which is how would you approach a situation in which the lawyer is called in more than one jurisdiction with the Law Society assume custodianship of pertaining to the matter still in Canada but outside of British Columbia alternatively if you designate a winding up caretaker must the person be called in each jurisdiction in which you are again I think that comes to me with regard to what the Law Society would do if we were to become custodian we would deal with the files in BC only however we do have relationships with other law societies so we would find a way to make that work with other jurisdictions luckily I can say that hasn't happened yet when it comes to a winding up caretaker again I go back to the notion that a winding up caretaker can be a point person so even though you're winding up caretaker may be called in BC and you're also called in Alberta and have Alberta files hopefully you've left some instructions or have had a conversation about someone in Alberta who can deal with the Alberta files I think that's the best way to deal with that one okay so going back to the initial question about why succession planning is important sure well perhaps you could tell us a little bit about why it's important for people's loved ones I know you had a custodianship that where that bit proved to be true yeah there's always a few stories it is important for your loved ones just as it is important to have someone named your executor in your will or a power of attorney in existence because you don't want your spouse or family member to be having a conversation with the Law Society right after you've you're going into surgery or something has happened that's not a conversation you want to subject them to they're uncomfortable conversations but they are necessary and I have had them I remember having not even been in the department very long receiving a phone call from a lawyer whose colleague had just suddenly passed away the night before and within 30 seconds the phone was handed to her partner life partner that I had to speak with on the phone it was nice to know that people are looking after the interest but if lawyers can look after them for other lawyers rather than having your family have to do it it's just one less thing your family has to worry about may I just add something please unfortunately unless a family member is a lawyer called to the bar in British Columbia they're not going to be able to help you so your family is going to be sitting there probably expecting that the Law Society will be there to do all these things because after all you were a lawyer and someone will then probably explain to them that that's not the case and that they themself have no ability to affect the situation other than to go and do what you may should have done find somebody to take care of things and we're getting another question which is what about insolvent practices or estates can you get a custodian for that yes you can have a custodian for that in fact that is the majority of our custodian ships because at that point there are no funds available to retain someone to wind up the practice so I think it's important and maybe this is the time to ensure that the audience knows that custodian ships the custodian ships Department of the Law Society will always be around we're always going to be needed because there will be situations like that however as Bruce and I have both said if you're appointed the winding up caretaker you can step in and take a look and see whether there is money in the estate to continue to wind up the practice or not and then the Law Society will always be here you can call us and we can help and if it needs a custodianship we'll do that okay if I may do this is really part of maybe the subtext of what we'd like to convey today and that is that since the custodianship Department of the Law Society is now in-house rather than individual people appointed they have resources that can help and part of the discussion between the profession and the Law Society is how to work together to do that we have a couple questions about clients one being if your clients have to know that you've entered into an agreement with respect to their files and the second being if clients have to give consent to the custodian obtaining the clients files so maybe Bruce I'll let you take the what about consent whether or not clients have to consent to that I would say no I would say that that with respect to consenting to a designate that that is not something that really involves the clients at all I think much like a custodian that you're designate would only be able to do work for them in a very limited or emergency way and I think that if in fact it came time for someone to carry on with whatever the project was that you were unable to that you would need client consent right which sort of brings us to the second client question which is if the clients need to have given consent to the very fact that you have an agreement with another lawyer that they'll act as you're winding up caretaker catch answer that one Cheryl I don't think that the clients need to consent or be aware that you have a winding up caretaker agreement or a law practice coverage agreement as Bruce said what you do at the beginning is just it's triage its emergency it's making sure that clients are not going to be harmed and then you do you will start contacting the clients and you will need their consent to continue on with the files but at the outset I just the triage I don't I don't believe it's necessary I think that's what you were saying to Bruce yes I mean I I think the core of that question is the extent to which the designate would carry on with your practice and I think the answer is only to the degree necessary to protect the clients interest without the clients consent so you're there which is better than nobody and better than the law society if someone has to be in criminal court the following morning you'll go down there and tell the judge he's not here to speak to this and get it adjourned but as far as taking the case over that is not something that you would do without the consent of the client and many times the clients hope you do and there's a fine line between whether it's the right thing to do or not from the point of view of whether the member will be returning first can you give us an example of a custodianship that you've done yes I would say in a general sense that one of the things maybe you can take away from today is that if you have a designate there your practice will not deteriorate as fast as it will if there isn't somebody there and custodianship Spacek aliy betray a very high level of discombobulation by the time the custodian is appointed essentially the practice records are imperfect the accounting is imperfect the files are only loosely described as files so I've had custodianship swear I've attended and not been able to open the door of the lawyer's office because of all the mail that was lying on the floor and basically I could go on Dana but I think it's just simply all the things you'd never want to know about how bad it can be limitation periods missed conveyances balled up court hearings missed and it can be very bad because it's a process of deterioration if there's nobody there ultimately it reaches the Law Society through a complaint and by the time the complaints people arrive or as I have sometimes uncharitably referred to Chiarello's the basket case people arriving there's a basket case and not something that you would want to see we're getting quite a few questions here about some of the the nitty-gritty of what exactly a winding up caretaker does and how you find one I'm just going to assure you that we're going to get into that that content as we move along and if when we hit that content if we still have an answered your question please do ask it again but I want to come back to sort of the impact of what happens if where there is no succession plan in place sure well could you tell us a little bit about it what it means for lawyers for the profession if you know it as a group sole practitioners aren't doing their own succession planning absolutely one thing I'd like to share with you is that we have just over 2,300 sole practitioners in the province and that's within 10,000 we have 10,000 lawyers about 2,300 or more of you are sole practitioners that's a statistic from 2010 in 2010 64% of those sole practitioners were over the age of 50 by way of comparison in some context ten years prior in 2000 only 45% of sole practitioners were over the age of 50 and I don't think it's any surprise that as a profession we're getting older and R agreeing so what we're seeing is an increase in older practitioners in especially in the sole practitioners and as that number goes up your chances for a custodianship go up people are working longer and we're not getting to the retirement as quickly as we'd like to well personally anyway that could prevent that could sorry that could result in more custodian ships that's a greater cost of the Law Society and we all know that the Law Society operates through your fees so there is an effect on the profession as a whole and we also want to keep public confidence in the legal system we want to make sure that everyone's clients are taken care of we don't want clients sitting and waiting and having to complain to the Law Society okay so let's move into the the who do you get to be here whining out caretaker we've had quite a few questions on that already I put up a whole question just now which is how much planning do you have to do in order to designate a winding up caretaker on your trust report and the answer is our a know who it is or be have all your agreements in place Bruce how did you find someone to be your winding up caretaker well in my utter embarrassment at not having designated a winding up character I was fortunate enough to have a very longtime friend who's a practicing lawyer and I phoned him up and explained my predicament and he said well he's a sole practitioner too and he's even closer to retirement than I am so we basically desire we basically decided to designate each other but the uniqueness there is we did it on the basis that were lifelong friends we know the other one will protect the interests of the other we know our families so we had everything going for us and so I just got lucky and and what happens if you if you don't know anyone where can you go perhaps sure al you could you could take that question sure and this is something I've had some discussions with some of you about and I understand that it is a concern some examples I've talked to people about or you can do what Bruce has done which is find a buddy buddy up with someone else who's in the same predicament hopefully somebody you know it's a little easier if it's someone you know and trust to give legal authority over your practice to them you can meet people through professional organizations CPA meetings cles if you do them in person those types of things and don't be scared to have a lining up caretaker that's not in the same legal community as you with the advance of technology and how we can use it it doesn't have to be someone in the same city as you so there are ways to do that a third option and something we've been looking at more and more is that the Law Society does have a locum and a succession planning registry on our website that allows people to post if they are looking for a winding up caretaker or they wish to be a winding up caretaker for someone in the community it's a bit different because now you're dealing with someone you don't have a business and a friendship with like in your case Bruce but you'll see on our website we have lots of documents and one of them is a gatekeeper agreement you can always execute documents like a power of attorney and leave it with your gatekeeper agreement that can be a trusted person and it doesn't have to be a lawyer to hold on to those documents and to decide when someone else the winding-up caretaker comes and so that is something to think about as well may I just add something you may not have ever heard the expression gatekeeper agreement but basically one of the things that came up in the course of the discussions in putting the agreements together was who makes the decision as to when someone is put in when is the designate operative so a gatekeeper agreement is an agreement that for example is with your wife the designate and yourself and then essentially she makes the decision based on your incapacity to ask the designate to act and it's I really encourage you to look at the documents on the Law Society website because what will happen is that you'll start thinking about the things that other people have already thought of you'll have a place to start yeah and I think talking about the agreements on the Law Society website it's a it's a good time to get into the results of our poll which is how much planning do you have to do to designate a winding up caretaker on your trust report and 43% of you said all you have to do is know who it is and 57% of you said that you have to have all of your agreements in place and shirelle perhaps you could take the answer on that one well actually and all you have to do is have the name of a person who's going to be your winding up caretaker it's ideal to have all the agreements in place but for the purpose of designating someone for your on your trust report because there is a question on your trust report that asks you specifically if you've designated a winding up caretaker and for the purpose of the law society knowing who to contact all you need to know is who that person is the documents follow you need the documents to provide legal authority but for the trust report we just need to know who it's a little bit I guess like doing your well if you have children all you have to do is choose who's going to look after them yes something happened to you and what they do later is can be discussed later yeah the hard question the hard decision is figuring out who can do it it's a little less formal than a well luckily and you might think of your law practice as your children so it's a good analogy it's your baby yeah another question that we had in terms of choosing who is going to be your winding up caretaker some people who are in smaller communities are saying that the only other lawyer in town might be somebody that might get conflicted out because of the the fact that that they might have represented somebody on the other side or so on so the question is if you live in a small community where did conflicts play into choosing your winding up caretaker I can actually address that one because we have dealt with that in custodian ships where we've had outside counsel act as the custodian and in a small community exactly the same thing has happened the custodian or the winding out caretaker can act as that point person they they know you do your complex checks you know what files you can't touch and you find someone else in the community who can take them over or someone in another community if necessary to take them over and deal with them and if you need help as a winding up caretaker doing that again we're here to help and we'll help you find someone or give you some names of people who can do that for you and charelle assuming that people have taken that first step or perhaps do take that first step after today's webinar in terms of determining who their winding-up caretaker is going to be how do they notify the Law Society that they've taken that step that they have the who in place perfect question again question 20 on your trust report have you designated a winding up caretaker the answer we want to see is yes and preferably the name of the person so we know who to contact for many of you you're coming out to your trust report filing deadline of March the 31st if that's not the case and you've already filed your trust report feel free to send us an email to the custodianship email address you can find that on the website and just let us know we'll make a note in our departmental records and the next time you file remember to put that person's name down so that we know how to help you take care of your clients and we're getting some questions about the locum or succession planning registry people are wondering how they find that absolutely it's on our website you have to log in with your member ID number and I think it's under the succession planning section sorry it's been a while since I Oh versus telling me it is it is it is first it's been there more recently than I thought login with your member number you'll be able to find it and for those of you who are not sole practitioners or who are and wish to help out your colleagues please do post and let us know that you can help people out because I know a lot of people are really looking for someone to be their winding-up caretaker particularly given the results of our poll earlier that was very interesting mm-hmm let's let's move on a little bit in terms of what the agreeing is if you do decide to agree to be someone's winding up caretaker what does it mean for the person who has agreed to act Bruce well it means a lot and depending on the extent of your colleagues practice and maybe it doesn't I mean the bottom line is it's a significant job it's one you have to address right away it involves looking at all of the files of another person's law practice and it's a it's a significant commitment just to step back a little bit you know the poll question indicates that a lot of people thought you have to add all all your agreements in place and I would encourage you not to wait that long because that's a big process just designate and and have a power of attorney and a question in terms of the winding up caretaker from M Mooney does you're winding up caretaker have any authority if no agreements are in place and all you have done is designated the winding up caretaker on your trust report she's asking or he is asking where the authority comes from does it come from the Law Society if the agreements aren't in place we can help smooth the waters but we can't provide authority what can happen though and I'm running through different scenarios in my mind if that's a situation where someone has passed away but designated a winding-up caretaker the executor of the estate can retain that winding-up caretaker to take care of the practice and that will provide the authority needed with the institutions to gain signing authority over accounts and that kind of thing if it's a situation where there's incapacity but not someone passing away then whoever is acting as the attorney pursuant to a power of attorney if you have one of those in place can also retain the winding-up caretaker so the designation itself doesn't provide the authority there are many ways to do that we can smooth the waters as I said and help you find some ways around that problem so it is step one you do need to take the other steps but like Bruce said don't wait at least take the first step and we'll get the ball rolling we have an interesting comment from Rick who says that he's not sure that anyone would want to volunteer to be a custodian as it sounds rather onerous I know Bruce you've done quite a few of them perhaps you could comment on the job and and the volunteer aspect of it well your prior to well the you are a sort of a volunteer you do get a stipend it's not very much and so basically if you go into it you're going to find yourself making far less money than you're required to pay your overhead monthly as far as what the job is like it depends on the state of the practice you walk into if you go into a practice that has only recently come under stress and the files are organized and the accounting doesn't admit of difficulty you still have the big job of looking at every file notifying lawyers on other sides determining what the emergencies are dealing with the emergencies but you're a lot better off than if the files are all over the place everything is in the head of the incapacitated person and the bank account doesn't balance but I would say it's a it's an in the first instance it is an enormous job and you're going to take a week out of your life perhaps to figure out what the state of the practice is and to deal with the emergencies once you do that it becomes more orderly and I think the law society custodianship Department can help solicitors they have people who specialize in getting wills back to people companies and so forth but it's a big commitment no question insurer perhaps you would like to comment on what the Law Society can do to help in terms of helping to reduce the fact that as Rick put it it's a bit of an onerous job it is enormous job and that's a perfect description of it what we can do is we can talk you through things we can let you know what our best practices are because we've been doing this in-house for five years now so we've developed as Bruce said ways to get your company minute books back to clients your wills two clients getting off-the-record all that usual stuff to wind up the client interest of the practice we can support you and talk you through that whether you get paid or not would depend on the law practice coverage agreement any power of attorney or other documents and the conversations you've had with the member prior to having to take your place as the winding up caretaker but one thing I would like to point out as well is you're right it is a volunteer position really and that's one of the reasons I suggest budding up because you'll do something for your friend because you know your friend would have your back and do the same for you as Bruce you've done yes but it's also giving back to the community the legal community and you're making sure the clients are protected and you're making sure the public remain retain their confidence in our legal system may I just speak to that I would just like to say that one of the great experiences that you get when you do custodian ships are the people that you meet the clients of the lawyer and to be able to do something to help them to represent the Law Society to be able to say that we're here and deal with their problem it really is the biggest reward and I think you will find that if you do something other than in a straight financial type of arrangement which is of a different quality it's something that the benefit of other people from your help is so strong that it it makes you feel good you're doing the right thing yeah because I think it's a good point a good place to point out that you've gone back and you've done it again so you really do get the gratitude of clients and that's worth it it alone so let's move into the the where and how now because we are getting some questions about the nitty-gritty of how it all goes down so Bruce where do you start well I think you start by first of all considering whether or not you have someone like I did someone who was qualified someone that you no in a long time someone that you trust implicitly to do the right thing and someone who will do a favor and say yes so that you don't look completely silly in this type of a forum beyond that you have your work cut out for you because not only will you have to go through the process of finding an individual at you at least trust you will likely have to consider what type of financial arrangement to make and that will not only be between you and them it will be between you and your practice which would have to provide for that eventualities so start by considering who the person is if you can't think of anything go to the Law Society website if you are up country phone shirelle Goodwin she'll help you we talked a little bit about it so you start with the who yeah I guess the second question is how do you make that person effective so what's the next step you need to take in order to make that person effective you have to at a minimum give them authority over your general and Trust account because without the ability to write a check there you're going to need a custodianship because no one will have the authority to do that so if you have a law corporation that you can appoint an alternate director I would encourage you to use the bank documents to put someone on as far as I am aware it will mean that there'll be an alternate signatory on your trust report but it doesn't mean that that person has any responsibility over a trust report that they have not had any activity in but you must be able to write a check so if you find a person and that person has the ability to write a check then they can go forward and pretty much make any other arrangement on the go that is necessary but without those two things you have no place to start in my view we also had a question that if is from someone who's given a power of attorney to a colleague to be the winding-up caretaker and they've they're wondering whether or not that is enough is it enough to have given the power of attorney to the colleague to wind up assuming that you're not incorporated it's enough if you'll if you become incapacitated if you pass away you're going to need a clause in your will or perhaps a codicil you need to talk to an estate lawyer which I am NOT one of to ensure that it is what it needs to be but giving that authority through those documents will work you may also just to be on the safe side check with your financial institution to ensure that your form of power of attorney will be acceptable to them I know some times banks like to fight about the exact nature of the documents our documents on our website are samples we've done the best we can but you all have very different and unique practices so they're not going to fit all of you and you're going to have to tailor them you might want to check with your financial institution just a point with regard to the incorporation if you are incorporated we do have yes a power of attorney for corporation on our website however I have had a situation where a financial institution wouldn't accept that so another way around that that we've we've sort of advised people on is to ensure you have a shareholder agreement signed assuming you're the sole shareholder of your law corporation or with your spouse or partner have a shareholder agreement signed and in the hands of your gatekeeper the person who's going to make the decisions for you appointing your winding up caretaker as a director of your corporation so that they can become the director go to the bank change the signing authority on the accounts without having to have a step in and have someone appointing a custodian just so they can get control of a bank account which is a possibility but we'd like to not have to do that unless we absolutely there's no other way and there's been a couple of questions about the power of attorney and what happens to it if the reason that the custodian or the winding up caretaker is having to step in is because the person has died what happens to the power of attorney does that die with them absolutely yes I mean powers of attorney are not valid once you pass away it goes by your will so make sure you you've got a plan for the emergency being in incapacity or vacation as well as passing away and your in the event of your death you two different sets of documents make sure they're both in place and I think you'll find precedent for the will document on the Law Society website yeah for the clauses that would appoint a winding up caretaker yes yeah so sure Ella can you let people know exactly what the Law Society can assist with well first of all our website has all those sample documents on it so please do take a look at them we have the locum in succession planning registry so if you're looking for someone to help you out or you would like to help out someone do you put a posting up there we can give you advice questions I haven't been able to answer today or if you have further questions you can email us you can call us there are other people in my department that can assist you as well in putting your plan in place but we can also help you as a winding up caretaker or as as a winding up caretaker sorry once you're appointed we can help you walk through what you have to do to either maintain or wind up the practice we have a lot of procedures in place and if we can help you make that easier for you we will and there's also a question about whether or not the estate has to be probated first before you can act as far as I'm aware you have the power of being the executor under the will so unless there's real property held by the practice or anything like that I think you can go ahead with the will I'm not sure how where the financial limit is for the bank I think you can probably get signing authority with just the will but again you'd have to talk to your financial institution for the purposes of the Law Society once you're appointed executor under a will unless you're renouncing or not touching it we're going to help you as much as we can to get that practice wound up but again you might want to speak with your financial institution to know what their financial limits are as to when you need to probate and when you can just act pursuant to the wealth and verse what does agreeing to act as someone's winding up caretaker what does that mean for the person then does do it the person who does the lending up the person who agrees to be the winding up caretaker what does it mean from the time that they say yes well from the time that they say yes they have a number of things they have to do the first thing they have to do is they have to immediately take the time to go in and find out what the state of the practices and deal with emergencies and find out what the state of the bank account is both general and trust and deal with notifying clients beyond that the most difficult decision then becomes are we going to manage this and if so for how long or are we going to wind it up and part of the decision-making process that is in the documents on the Law Society website deals with the issue of who is going to make that decision I think you're winding up designate will be the person who will know best about the state of your practice a loved one may know better or have views about the state of your ability to come back the documents on the Law Society website do give you a guideline as to who would actually make the decision to wind up or not if the incapacity is going to be of any duration the practice will likely be wound up and at that point in time the designate has to do all of the things that anybody winding up a law practice would do so it's a big job that there's file transfers the accounting has to be done properly and everything in the law society rules and handbook with respect to the transfer of client files has to happen so we're not trying to fool anybody that it isn't a big job it's just a worthwhile job for you and probably a necessary job for the Law Society we have another question as to whether or not you should be putting in an alternate in your power of attorney and testamentary document any thoughts on that verse I mean it seems to me that it's worthwhile I mean life happens in such a way that you can't not only predict when you're going to be incapacitated but you can't really count on your designate to be immune from this type of thing so an alternate is not a bad idea we had another question where or more of a comment really where someone was saying that because succession planning seems like such an important thing that the Law Society should consider requiring people to do it do you have any thoughts on that TRO well at this point we're just encouraging you to do it it's something that as the age of the profession Rises we really need people to ensure their practices are taken care of and we're encouraging it we're promoting it it's not mandatory but we'd really like you to go ahead and take that step yeah to my thinking the profession is in the early stage of discussion of their needs with the Law Society and its needs and the hope of forums like this and subsequent discussion is first of all that we understand each other's needs and secondly that we can put something in place that is better than the custodianship way of doing things which does not suit you as a practitioner from an economic point of view but we have very different roles and different needs and we have to find a way to work together so that the profession and the individual members can benefit we have a comment from Barbara Finley saying as I see it it would involve transferring the files ensuring that the trust funds are returned and transferred and closing the office what am I missing so I think maybe what she's saying is it's the step seemed clear and it doesn't seem too complicated well I would say that the step seemed clear and the complication will be directly referable the number of files and problems that you encounter I'd agree with that and I think that it's true just keep those steps in mind and something you can do as a member in order to help make sure those steps are as simple as they need to be is ensure your using your best practices in your practice management throughout the time before you're winding up caretaker has to step in if you're constantly reviewing and calling your files for closed files that can be destroyed if you're ensuring that you don't have those little bits of money left in your trust account longer than they need to be there if you're making sure that your calendar is clear people know where things are your files are actually closed it's going to help people like who was a barber that that typed in the comment be able to take those steps in a much easier manner and it probably if you have some sort of fee arrangement in your agreements it will also help the cost down to keep the cost down for your statement we have another question which is what is the potential liability and I'm assuming that that means what is the potential liability for the person who agrees to be someone's winding up caretaker Bruce would you like to take that one no but I will that's an excellent question and not one that I'm just going to give you a guess or an opinion a custodian has a statutory protection under the legal profession act with respect to any act that they do in good faith designate I'm afraid will fall under the ordinary law of negligence in the event of a problem and what it really means is that you must understand that it's a significant job and you're going to have to do it if you follow that simple rule then you should be okay but there's no special exemption that I'm aware of okay and we have another question here which is what about closed file management a long term I'm actually going to jump back for a second sure sorry about that I didn't catch your attention fast enough we'd also encourage you to call if you're concerned about your liability under as it designated as a winding up caretaker call someone at the Laureus insurance fund and speak with them because we are all covered by our legal profession insurance and so they can give you an opinion as to whether you're covered or not for an area that you might uncover while you're the winding-up caretaker you're the member may have prior coverage for something that slips through your fingers as things do sometimes you may have coverage so talk to our our insurance people they're very friendly and they're there to help and and this is exactly the type of concern that I think we encourage people to make know and in the hopes that in the future that ways can be devised to come up with better than off-the-cuff answers to important questions absolutely and that's where we have the checklist and the precedents and so on lois ID website so getting back to that question there what about closed file management long term well me you go ahead okay I actually have an answer for this one we do on our website in our practice resource materials section have a closed file retention document which will give you some ideas on how long to keep your files for depending on the type of work that you're doing and I know some practitioners give it a different clothes number put into their system either computer or just writing it on the side of the box your destruction date and making sure that your closed files are culled kept separate you know what your destruction period is and it's just much easier to keep track of everything when it's organized and I think that again I think the Law Society may have to help out people who find people sitting with hundreds of wills yes so if you do or if you are winding up caretaker and you come across a practice where you do have many original wills and many closed files that have to be kept for a long period of time and you just can't figure out what to do with them and you're not willing to keep them again call us we'll find a way that we can make it work for you we're still trying to figure out the details of all that right now but I'm sure in communication we can figure it out first what do you expect your plan to look like when it's all done what components do you expect to have in yours I expect it to look very much like the documentation on the Law Society website I hope that I can put the stick-to-itiveness to it to actually benefit my friend the designate with the plan to compensate him should anything happen and that entails for me looking into insurance to make sure that I have additional funds but I think that it will most likely look very much like the plan that's on the Law Society website so you'd have your power of attorney your gatekeeper agreement well it's interesting as we've spoken my own thinking has advanced because you start with your designate you immediately think of the ability to write a check then somebody brings up the idea of a will and you go yeah right well that has to be done then you come back to the compensation issue I think all these things have to be done and some good people spent some time at least thinking about it so you can get some ideas off of the Law Society website as we're getting close to the end of our time I want to move on to the the when part of succession planning Bruce when should people get started on their succession plans well let's try to say but yesterday as soon as possible because it's hard difficult work to get these sorts of financial arrangements done so the sooner you start the more relieved you will be the better chance you will have of actually getting to the end and it can't happen soon enough and we have one comment on here that say all this makes me think that being a lawyer is too much work and it's time to retire well most eerily bow down the bow before you do that get your plan and play sure I'll with the jet but the deadlines for our trust report filing coming up what do you want to see people do it doesn't mean you're winding up caretaker put it on your trust report again if you've already filed and you want us to know and we'd like to know send us an email give us a call and it's important to note too that your trust well you all know your trust reports are due every year you have to answer that question have you designated a winding up caretaker every year that's a good time to revisit and ensure that the person who is your winding up caretaker is still in practice has had nothing happened to them and just make sure all your plants are in place so it's almost a yearly B F for you but for right now all we need is your designation and your commitment to work on those documents we have a question here about how big of an issue this is really how many cases typically arise where a sole practitioner died suddenly or get sick suddenly do we have any any numbers on that I don't have accurate statistics with me right now but what I can tell you is our department brings in anywhere from 8 to 15 custodian ships every year those are sole practitioners about half of them every year are due to illness or death so those are the ones that we have to go to court and be appointed the custodian over that doesn't include the matters that we can contact members in your community who are willing to wind up your practice for you and we put a formal locum agreement in place and that doesn't include the matters where your estate may retain another lawyer to wind up your practice for you and we're running out of out of time here I've put the last poll question up on the screen for you which is are you going to prioritize getting a winding up caretaker yes or no or maybe you're one of those people who's at a firm of a certain size and the question doesn't apply to you in which case we hope that after hearing the need today you will consider volunteering to be on the locum or succession planning registry a couple things before we say goodbye don't forget to register your CPD credit this does count for one hour of practice management and ethics we're going to put a recording of the webinar up on our website afterwards so you can watch for that and remember that if your question didn't get answered you can call the custodianship department at any time for quite with questions or help or if you want to be a winding up caretaker thank you to Cheryl Goodwin and first Thompson for your expertise and sharing your knowledge with us today thank you as well to the continuing legal education Society of BC for partnering with us on this sharing your expertise and helping to make this happen and thank you for listening participating and for your great questions we sincerely appreciate it goodbye