STEP is considering the development and implementation of an online testamentary capacity assessment course and is keen to assess members’ appetite and enthusiasm. With very little guidance or industry training currently available, an online course could be a valuable educational tool for anyone required to interact with capacity assessments.
The background to the course
In 2017 the Law Commission of England and Wales produced a consultation report on reform of the law of wills. While its work was postponed, it is likely to recommence early next year. Paragraph 2.132 of the report notes ’stakeholders have raised the possibility of introducing an accreditation scheme.. this would deal with the problems raised by the Golden Rule by directing testators and professionals towards people competent to undertake capacity assessments. An accreditation would mark out who could best assess capacity in difficult cases. Accreditation would also be persuasive in litigation should capacity be contested after the death of the testator…’.
It continued, ‘a scheme might be operated by a private organisation who would accredit lawyers, medical professionals and social workers to assess capacity… we recognise the value of private accreditation schemes’.
STEP believes it is exceptionally well-placed to offer its members an accredited scheme of this kind, if they would find it beneficial and valuable to their professional duties.
The proposed course
The course is likely to be webinar-based, comprising a series of interlinked sessions provided by relevant experts including solicitors, counsel and medics. Modules are likely to include:
Capacity – and the issues that affect it.
Law – the legal tests of testamentary capacity (for example considering the Banks v Goodfellow test in contrast to the Mental Capacity Act 2005 – and how these tests are treated by courts).
Practice – dealing with medics, matters to include in file notes, the importance of family trees, assessing clients.
The introduction of a standardised testamentary assessment questionnaire.
Other considerations are whether the course will be adapted for implementation across the common law jurisdictions, and whether completion will provide accreditation.
Join the debate
We would like to invite you to a free discussion on Wednesday 30 June at 4.30pm (BST) to explore the proposals for this course in more detail. Claire van Overdijk TEP (Chair of the STEP Mental Capacity Special Interest Group (SIG)) will moderate a panel discussion including Professor Robin Jacoby, Alexander Learmonth QC TEP, Australian neuropsychologist Dr Jane Lonie and Stephen Lawson TEP. The panel will discuss its views and there will be opportunities for questions.
The Law Commission of England and Wales has announced a public consultation on its 14th Programme of Law Reform and has published a scoping document providing background on the programme and ideas for potential projects.
STEP is hosting a joint webinarwith the Law Commission on 19 May to discuss the proposals in further detail. The major areas of focus are:
The Wills Project, paused in 2017, will review the Wills Act 1837 to give it a radical overhaul, including possible reform of key principles of the legislation, modernising the language and reforming any ambiguities. Many consider that reform in this area is long overdue and there is a need to review testamentary capacity, statutory wills, supported will-making, the formalities, the protection of vulnerable testators, and of course digital aspects such as electronic signatures and execution. We understand that the Commission hopes to pick this project up again by early 2022.
The Trust Project will be an initial scoping study investigating problems with English trust law, with a view to modernising and updating it in line with international standards. It will explore the current limitations with trust law and examine how it could be updated to facilitate more competitive trust services in a global market.
The project will review alternative trust and trust-like structures available in other jurisdictions, for example, Jersey’s Foundation Law and Cayman’s Star Trusts, and will consider whether similar structures could be implemented. The project will also review the law governing certain categories of statutory trust, and identify technical trust law issues that may need general updating and reform.
The scoping document acknowledges that English trust law has not been comprehensively reviewed since 1925 and notes that Singapore and New Zealand have updated their laws and been creative in maintaining a healthy trust market, whilst other countries have implemented new trust and trust-like structures to meet demand.
The Commission has clarified that the trust project will not make recommendations regarding the taxation of trusts, for which HM Treasury has policy responsibility, and the project will therefore exclude the law of mistake which has significant tax consequences.
STEP members and non-members are welcome to join our free webinar on Wednesday 19 May at 4.30pm (BST) entitled ‘Modernising trust law for a global Britain’ in which we will explore the Law Commission’s 14th Programme of Law Reform with a specialist Law Commission and STEP panel.
Entries are open for the STEP Private Client Awards 2021/22 from 1 February until 23 April. The Awards are widely acknowledged as being the premier event in the private client industry calendar. Winning an Award is a very clear and recognised hallmark of excellence.
How then, do you go about winning an Award? Mary Duke TEP, Chair of the Presiding Judges, gives us her top tips based on her personal experience as a nominee, winner, judge and Chair of the Judging Panel.
You have to be in it to win it
There can sometimes be a perception that the Awards are only for larger firms or for the usual London suspects. However, the judges have clear instructions to make allowance for smaller entrants and to take cultural differences into account when considering international entries. Last year’s entrants and winners were the most international yet. Entries from all sizes and types of firm are therefore welcome. Strong entries will always attract attention from the judges, regardless of their size or regional origins.
Enter the right category
It is a constant surprise to the judges how many firms enter the wrong category. One submission even began with the bold statement: ‘We are a leading [another category entirely] firm…’. Read the category criteria carefully, and if you think the judges might have difficulty understanding why you are applying for a particular category, help them by explaining your business better.
Put yourself in the mind of the judges
My number-one tip, when writing your submission, is to imagine yourself as one of the judges.
Be aware that most of the judges will not know most of the applicants. If they do, then all the better – judges are encouraged to bring their personal knowledge to the process – but for the most part, judges will be relying heavily on the submission. So even if you think you are the best-known firm in the world, make your submission count.
Understand the judging process
There are three phases to the judging process.
The Shortlist Phase – First, submissions for the legal categories often receive a high number of entrants resulting in the category being split into large and mid-size firm groups. This is why entrants in these categories are asked to submit the number of fee earners in their team and in the firm. The definition of fee earners can be viewed on the FAQs page of the website. Then the categories are assigned to judging groups and each judge will have to review up to 100 submissions, each of up to 1,100 words. Judges have to submit a scorecard against the category’s criteria and write a narrative (minimum 50 words) to support their outcome for each entrant. That is 220,000 words of reading, 1,000 scores to give out, and at least 10,000 words to write. It is an incredible amount of work.
The Panel of Experts – After the shortlist is announced, the entrants for each category are submitted to a panel of experts. These individuals are chosen for their ability to provide independent and knowledgeable insights into the entrants and the field of their work. (But they are not direct competitors in the category.) A list of the panel of experts will be available on the Awards site next month. The reports of the Panel of Experts are considered as recommendations only and do not constitute a formal vote.
The finalist stage – The finalists’ entries and the panel of experts’ recommendations are provided to the full panel of judges for this critical decision phase. Prior to meeting for final deliberations, each judge is required to submit their own report on each individual submission indicating which entrant they believe should win the category. The judges then meet to deliberate and make a final decision for each award.
This is a thoughtful and transparent process involving a good deal of debate and discussion. At times, the discussion results in judges shifting their views. There is no consideration of how many tables a firm might purchase at the awards dinner or the size of the contribution an entrant may have made to the officially supported charity. In fact, there is no way for the judges to know these things based on the timing of the decision process. Likewise, there is no consideration given to whether a firm won in the preceding year. Judges with conflicts or whose firm has entered a submission are recused from related categories.
Answer the questions
It is the first rule of exam-technique we should all have learned at school, but every year I am amazed at submissions that fail to answer the question. There are five criteria for each award. Each of the criteria is weighted equally and we score each on a scale of one to five. So answer each of the questions individually. Don’t allocate too much space to one category to the disadvantage of another.
Further, make sure that you clearly answer each of the criteria in turn. Don’t use jargon or abbreviations that are not in common usage. Remember, the panel of judges is made up of a diverse group of practitioners from differing fields of expertise.
The most important thing to avoid is a long single narrative. Even if it addresses all the criteria, judges aren’t going to thank you for having to read it several times in order to extract and mark each one. Make the judges’ lives easier and they are likely to mark you more highly.
Don’t waste word-count
You have 1,100 words. Make them all count. So many submissions waste words. Précis rigorously. Then do so again.
Clear, succinct language is appreciated.
Avoid the marketing spiel!
You will be judged by fellow senior industry professionals who can spot puffery and hyperbole from a long way off.
Most of the work in our industry is advisory. The ability to communicate clearly with clients is crucial to this. So, demonstrate your ability to give clear advice, with a clear and well-written submission. If your marketing team is superb, then by all means use them. The judges’ experience, though, is that submissions written by those at the coal-face often read more convincingly.
Pay attention to spelling and grammar and beware of unnecessary adverbs and superlatives.
Big numbers (and names) are irrelevant
Many submissions make great play of the financial value of their clients or cases. Others seek reflected glory in acting for big names. Yet these have little effect on the judges. Tell us what makes your case unusual, complex or novel. Don’t simply name-drop celebrity connections.
Provide evidence; don’t merely assert
Most criteria ask you to ‘demonstrate’ or ‘provide evidence’. Yet many submissions assert things – ‘We are the leading firm providing a superlative level of client-service and exceptional satisfaction’ – without any evidence to back this up.
What will go down well is an evidence-based entry that gives clear examples of what the firm has done over the past year to make it stand out from the crowd.
Entries should be particularly careful about unguarded assertions. ‘We are the only firm that can…’ or ‘We are the largest firm which…’ are particularly dangerous assertions – especially where some of the judges might work for a competitor and dispute whether this is true.
Tell us something unusual
A good answer for each of the criteria might get you shortlisted. But if you want to win, you will need to stand out.
Tell the judges something different, something unusual, something genuinely innovative. Think forward to the awards ceremony and the announcement of the winner. When the celebrity-host says: ‘The judges were particularly impressed by…’, what one facet of your submission will the judges have chosen?
The judges are both curious and cynical in equal measure. They will check what you say in your submission against what you say on your website and other sources of information. Glaring inconsistencies tend to result in entries receiving short shrift.
Remember the Awards are ‘ … of the Year’
Your firm will obviously be very good at what it does, but the Awards are intended to highlight those that have achieved particular success over the past year. Make sure you are rigorous in only referring to evidence from May 2020 to 23 April 2021. General statements about historic successes will waste words and not score any marks.
….and finally, good luck!
The judges look forward to having a bigger job this year, with many well-written submissions to choose from!
It’s no secret that 2020 has been an unprecedented year; and just about everyone writing a commentary on the last twelve months would probably say the same. But how has STEP fared during this turbulent time?
I wrote in June of how lucky we were to be part of an organisation that strove to keep its members informed and engaged throughout the turbulent early months of the pandemic. I have continued to be impressed at the ingenuity of both STEP head office staff and the resilience of branches which have worked tirelessly to keep the STEP show on the road.
CPD and examinations went virtual; branches met by Zoom; the Spring Conference, Tax Conference and the recent Branch Chairs’ Assembly had the highest number of attendees ever – online, of course. The members of the events team have surpassed themselves and have more than earned our gratitude.
In the background STEP continued to contribute and influence policy; work with the All Party Parliamentary Group on Inheritance Tax and Intergenerational Fairness generated STEP positive publicity and greater visibility amongst key audiences. Thanks to Emma Chamberlain OBE TEP and Emily Deane TEP for their input into the report that was published earlier this year.
STEP’s work with the government around the 5th Anti Money Laundering directive saw a change in definition of ‘business relationship’. This is a key outcome for the industry and shows how respected STEP is within government departments.
STEP’s work with the UK Ministry of Justice on video witnessing of wills has also been a highlight, showing that our pragmatic and practical advice is being listened to in vital areas.
HMRC’s consultation on raising standards in the tax advice market is ongoing and STEP has been encouraged to contribute further. Many thanks to Sarah Manuel for her work in this area.
Whatever 2021 brings us I am confident that STEP will emerge stronger and better. The recent Branch Chairs’ Assembly proved to me just how passionate and motivated our membership is, and I very much look forward to working with you all in the year to come.
On 24 November, the Financial Action Task Force (FATF) held its private sector consultative forum on beneficial ownership of legal persons, which focused on Recommendation 24 Transparency and beneficial ownership of legal persons of the FATF Recommendations. FATF stated that it is undergoing a major review of this area, which may lead to a comprehensive overhaul of the system of beneficial ownership to address issues such as inconsistencies across many countries, privacy concerns, centralised registries, legitimate purposes for access, and how information should be verified.
The forum was divided into two sessions with the first being chaired by Jennie Haslett and featuring Maira Martini, Transparency International; Jason Sharman, University of Cambridge; and John Cusack, the Global Coalition to Fight Financial Crime. The panel gave a third-party view with the aim of defining and understanding the nature and scale of problem. The following challenges were identified by the panel:
the quality of the information and how it is being verified;
the importance of flexibility and adapting requirements to the risk of the jurisdiction (as it was stated that a one-size-fits-all approach does not work);
that rather than implementing new laws, existing ones should be properly enforced; and
the need for increased collaboration between all players.
The second panel was chaired by Alexandra Kadet and featured Young Led, Department of Treasury, USA; Michela Maggi, European Commission; and Mariano Garcia Fresno, Ministry of Justice, Spain. The panel shared its views on the effectiveness of the measures being implemented and the potential problems and solutions. The discussion focused on who should have access to beneficial ownership information, the balance between what needs to stay private and what can be made available, the challenge faced when involving legal entities outside of the EU, and the need to have it centralised.
The overarching consensus from the forum was that this is a very challenging issue with no perfect solutions. FATF confirmed that a number of significant challenges were identified that needed to be addressed, such as complacency among some gatekeepers, the need for discrepancy reporting to make sure registers don’t work in isolation, consequences for non-compliance, and the need for consistency of global standards and practice.
The Ministry of Justice (MoJ) and the Office of the Public Guardian (OPG) have jointly initiated a project to modernise the process of making and registering lasting powers of attorney (LPAs), which may include an element of digitisation. They will be collaborating on a series of scoping events, roundtables and surveys to obtain research that will culminate in the publication of a consultation in spring 2021 to gather evidence and inform the future of the LPA service.
On 19 November the MoJ and OPG invited STEP to attend a virtual roundtable, which was introduced by Alex Chalk MP, Parliamentary under Secretary of State in the MoJ and hosted by Nick Goodwin, Public Guardian and Chief Executive of the OPG. During the roundtable, discussions were held on two specific areas of the research and engagement so far.
Improving safeguards for the donor in relation to identity checks
There was general consensus that there need to be more advanced identity checks for donors, which would consequently improve safeguards. It is a prevalent concern of the industry that identity fraud and theft are fairly accessible particularly if someone has access to a Health & Welfare LPA and the donor is incapacitated or vulnerable. It was also flagged that ID verification online may be technologically robust but there will be a small demographic, usually the more elderly, that do not have access to a computer or smartphone for verification. It was also reinforced that it is essential that any new online system is securely piloted within the industry before it is implemented.
The importance of the role of witnesses
It was recognised by attendees that the process of obtaining witnesses for LPA signing can add some gravitas and formality to the process, which in turn also gives the donor time to consider the importance of the legal document that is being created. It was also considered that it might be more appropriate to introduce digital signatures for the witnesses but to retain the obligation of the physical signature for the donor. On 9 November, STEP’s UK Industry News Digest covered highlights of the results of the first survey that has been undertaken, which showed that more than 90 per cent of 410 solicitors surveyed in England and Wales want to retain the rule requiring LPAs to be physically signed by the donor rather than by electronic means to prevent fraud.
We were informed that these areas have been marked for more extensive research under this initiative and will be discussed further.
The MoJ and OPG have stressed that empowering and protecting the individuals acting as donors in the LPA process is of paramount importance and amendments to the legislation will only be made if modernisation will provide the same level of protection or preferably enhance it. However, it is clear that the world is becoming more digital and we have seen accelerated evolution on the digital platform due to the COVID pandemic this year.
The MoJ and OPG intend to carry out extensive engagement within the industry, alongside the consultation next year, and will gather a wide range of evidence and expertise to understand user needs and challenges. STEP will continue to engage with the MoJ and OPG and monitor the progress of this initiative.
On 18 November STEP will hold its third webinar in the Thought Leadership webinar series, following webinars on the remote witnessing of wills and wealth taxes earlier in the autumn.
Mental Health and the Financial Advice Relationship will be chaired by Mark Dunkley TEP, Shakespeare Martineau LLP (UK); and the panel will consist of Carol Lynde, Bridgehouse Asset Managers (Canada) and Adam Wiseman, Bridgehouse Asset Managers Advisory Panel (Canada).
Mental health has traditionally been treated either an afterthought, or in some circles of life not taken seriously at all. However due to recent and ongoing changes in trends, exacerbated by the COVID-19 pandemic and lockdown, it has become a matter of increasing public and global concern.
Mental health disorders cover areas such as depression, anxiety disorders, eating disorders, and alcohol/substance abuse; and it is estimated that around 10 per cent of the global population has some form of mental health disorder (source). In the UK, it is estimated that one in six people will experience a common mental health problem every week (source). In Canada, half of the population will have, or will have had, a mental illness by age 40.
Based on this increased awareness, advisors are now having to ask how they can detect an illness early on in a client relationship, and how they should effectively manage it to avoid any harm to the client’s health, finances, reputational risk, or damage to the advisor’s ongoing relationship with the client.
Using insights gained from research, advisor interviews and mental health expertise, this upcoming event will give an overview of the current mental health landscape and its impact on investors, providing advisors with a suite of educational tools and real life scenarios that they can apply with their clients who may be experiencing mental health issues.
When was the last time you had a career check-up? With client concerns, professional development and a pandemic to contend with, STEP members might quite reasonably believe that career development comes low on the priority list.
Actually, the turbulence of the times is exactly why you should be investing in your career health. Digitisation combined with new work patterns and changing client expectations are just some of the characteristics of the 21st century career landscape. Rapid and continuous change is the new reality and having the agility to cope is the best way to meet not just your own needs, but also those of your stakeholders. You won’t be doing anyone any favours if you’re feeling unfulfilled and your skills are not being fully deployed. Stop paying attention to your career and you may find that obsolescence comes all too quickly.
Prevention, as they say, is better than cure and deciding that you want to take control rather than ploughing on, head down, is a key first step. So, how to get started on a new regime? Here are some thoughts from Rosemary McLean, Valerie Rowles and Mark Anderson, course guides for the Be Bold in Your Career course:
Rosemary: ‘If thinking about your career is something you haven’t done for a while, it’s a good idea to take a temperature reading on where your career is now, where it’s heading and whether that seems like a good direction for you.’
Valerie: ‘We don’t all want the same thing from work and often this changes at different stages in life anyway. What are your personal criteria for job satisfaction? Why not generate a list right now? It’s useful to think about what’s essential for you to thrive rather than just survive.’
Mark: ‘Maybe you feel you don’t have time for this? Actually, just like taking care of your general well-being, it’s about getting into good habits and making them part of normal working life.’
Perhaps you’re broadly content with what you’re doing and just want to continue developing. Or maybe you want to change something … or even transform everything!
Career Innovation are currently offering the ‘Be Bold in Your Career’ course (usually GBP225) free to STEP members. The course will trigger ideas and galvanise you to be more proactive in your career.
You’ll feel confident to tell the story of your career in a way that opens up new possibilities for you.
You’ll map your network of contacts, tapping into their knowledge about trends on the horizon so that you can start to future-proof.
You can work out the kind of stretch that will shake you off a career plateau: building courage in stages is a wonderful liberation from the paralysis of inertia.
Or determine how to actively influence how others see you, communicating your career brand and having career conversations that lead to tangible, positive outcomes.
One of the most exciting things set to happen in STEP this year was to be our fourth Global Congress, which would have brought together leading experts in Dublin to exchange insight and expertise with delegates from all over the world. Sadly, the COVID-19 pandemic has meant the event has had to be postponed, but we are looking forward to holding it in June 2021 instead.
The agenda for next year’s Global Congress will remain focused on the big issues impacting the industry both now and in the future, with the wide variety of topics being discussed highlighting the breadth of expertise represented across STEP’s membership.
The world does not stop though, and while we look forward to Dublin we have some very pressing matters to discuss in the meantime. As Chair of the Congress panel, I was asked, alongside fellow STEP board members, in the wake of the COVID-19 pandemic, to review what those matters might be for our industry and the short and long-term impact.
As a result, STEP has launched the Thought Leadership webinar series, kindly sponsored by Rawlinson & Hunter, bringing you some of the more topical elements of the Congress agenda over the next six months. The sessions will include a look at what the tax landscape may look like post-COVID; the risks to vulnerable people when making financial decisions; issues arising for those caught in jurisdictions during the pandemic and how we, as STEP, can rejuvenate the reputation of trusts worldwide.
We’re also delighted to welcome Professor Jason Sharman to the series. Jason will be talking about the findings of his study over lockdown, co-authored with Michael Findley and Daniel Nielson, which involved soliciting offers from 5,000 banks and 7,000 corporate service providers to test know-your-customer standards. The results will be of huge interest to our industry.
The series kicks off with the highly topical subject of video-witnessing of wills, given the changes that have happened in a number of jurisdictions during the pandemic. The panelists will not just look at what has changed but whether the changes are here to stay.
We hope you’ll join us throughout this series, as we showcase the breadth of interests of STEP’s membership and provide up-to-date knowledge on the subjects that matter to our industry. For more information, head to the STEP website.
The England and Wales Law Society has issued guidance to solicitors who advise on tax, drawing out their obligations within the Solicitors Regulation Authority (SRA) rules and regulations.
The new guidance acknowledges the Professional Conduct in Relation to Taxation (PCRT), which has been developed and published by several UK accounting and tax professional bodies, including STEP, and sets out the principles and standards of behaviour expected of all members. Compliance is mandatory for STEP members advising on UK tax matters and failure to comply may result in disciplinary action.
The Law Society explains that it has not adopted the PCRT because the obligations of the solicitors’ profession as a whole are already set out by the law and the relevant regulatory rules governing solicitors. These rules have been formulated over centuries, and they comprehensively describe the relationship between solicitors and their clients. They draw the right balance for the solicitors’ profession by combining the protection of the interests of the client, the interests of the public and the rule of law, while ensuring that access to legal advice is preserved and backed up by an independent regulator.
However, solicitors advising on tax matters are encouraged to be familiar with the content of the PCRT, which overlaps with many of the existing professional obligations on solicitors. For example, the five core principles of the PCRT (integrity, objectivity, professional competence and due care, confidentiality and professional behaviour) are consistent with the legal and regulatory framework that already applies to solicitors.
The PCRT expressly provides that it is not to be interpreted so as to be in conflict with any other professional duties of solicitors. Solicitors that are subject to the PCRT because they are members of one of the signatory professional bodies should therefore comply with the obligations and duties required by the SRA and covered in this guidance in priority over the PCRT.
HMRC also produces standards that set out its expectations of tax advisors. HMRC published a Standard for Agents which sets out its expectations of individuals and businesses that professionally represent or advise taxpayers. Where relevant, solicitors may wish to consider the contents of this or any other HMRC standards, but those standards do not form part of a solicitor’s professional obligations.