Every SP should have a Power of Attorney because there has to be continuing management of his practice in the event of incapacity.
From 1st October 2007 the form for this is a Lasting Power of Attorney.
The intended Attorney should be a Solicitor of the Supreme Court. That Attorney should have sufficient experience and time to manage the SP’s practice as well as retaining existing commitments. It is vital to discuss this thoroughly with your proposed attorney beforehand and obtain their consent to acting on your behalf in the way you propose. It is also recommended that the Attorney’s terms under which the Power would be assumed, including a fee structure, should be agreed in advance.
It is essential that a member of staff or family should be aware of the existence and place of the original Power of Attorney, otherwise it might be an academic exercise to complete it in the first place!
“Rule 5 requires firms to have continuity plans which usually places a bigger burden on sole practitioners than others as there is no one else left in the event of long term incapacity or death to ensure that clients matters are dealt with. This really means that SPs must appoint a special executor and prepare a power of attorney which is what you advise your members to do. However, that does not necessarily solve the problem as I am aware of 2 recent cases in which the special executor refused to take up the appointment because of concerns about the liabilities of the practice. This does suggest, therefore, that SPs need to review at regular intervals with their special executors and their proposed attorneys whether they remain willing to undertake this role.
It is obviously important that SPs try at all costs to make sure their arrangements will work because the alternative may well be that their estate is saddled with the costs of a statutory intervention which will obviously have an effect on the value of estate and what the surviving family is left with.
Finally, there is guidance on the SRA website that deals with closing down a practice and this is something that would be useful to a special executor or attorney who has to close down a SP's practice.”
Produced with the kind assistance of Bronwen Still of the SRA
