Regulations, Code of Ethics and statutory duties
ICAEW Probate Regulations
Regulation 3 of ICAEW’s Probate Regulations deals with the conduct of authorised work and imposes the following regulatory obligations on authorised persons:
‘accredited probate firms must act in accordance with the fundamental principles set out in the ICAEW Code of Ethics issued by ICAEW’s Council. A firm must make arrangements so that it, its principles and employees comply with these regulations and the professional principles set out in the Act to:
a) act with independence and integrity;
b) maintain proper standards of work;
c) act in the best interests of their clients; and
d) keep the affairs of clients confidential.
An accredited probate firm shall only carry out authorised work which it is competent to perform.
An accredited probate firm must make sure that only authorised individuals undertake, or control the undertaking of, probate work on behalf of the firm.
An accredited probate firm must make sure that all principals and employees undertaking authorised work are, and continue to be, competent to carry out the authorised work for which they are responsible.’
In a licensed firm, the Head of Legal Practice will be responsible for taking all reasonable steps to ensure that the licensed firm and its principals and employees comply with their duties under the Probate Regulations.
ICAEW Code of Ethics
A fundamental principle of ICAEW’s Code of Ethics is professional competence and due care. Section 130 states, among other things, members (which include ICAEW affiliates) have an obligation ‘to maintain professional knowledge and skill at the level required to ensure that clients or employers receive competent professional service; and to act diligently in accordance with applicable technical and professional standards when providing professional services.’
In addition, Part B (applicable to members in practice) contains section 210 on professional appointments which states among other things that:
‘The fundamental principle of professional competence and due care imposes an obligation on a professional accountant in public practice to provide only those services that the professional accountant in public practice is competent to perform. Before accepting a specific client engagement, a professional accountant in public practice shall determine whether acceptance would create any threats to compliance with the fundamental principles. For example, a self-interest threat to professional competence and due care is created if the engagement team does not possess, or cannot acquire, the competencies necessary to properly carry out the engagement.’
Requirement to undertake continuing professional development
Therefore, ICAEW’s regulations, code, and CPD arrangements place authorised probate practitioners and the authorised/licensed firm for which they work, under an obligation to ensure that they or those that work for them are, and continue to be, competent to carry out probate work.
To comply with this obligation, persons who conduct and/or supervise the conduct of authorised work are required to maintain and develop their skills throughout their career by completing sufficient development activity to ensure they remain competent in their roles. This requires them to reflect on such matters as expectations, responsibilities, and knowledge gaps and to evaluate the effectiveness of the CPD they have done and whether it has enabled them to meet their objectives.
They must also keep a record of their CPD activities as they can be selected to show evidence of compliance by our Quality Assurance team (QAD). ICAEW members are also required to complete an annual online CPD declaration and may also be required to show evidence of compliance through its annual monitoring processes.
Accredited firms are required to confirm they have made arrangements to ensure their principles and employees comply with the ICAEW Code of Ethics, the ICAEW Probate Regulations, and the professional principles set out in the Legal Services Act 2007 (as outlined above) on their ICAEW annual declaration.
Applicants applying for individual authorisation under Probate Regulation 4.1c who have attended a qualification course and passed an assessment that covers all the qualification criteria of this regulation except those relating to an overview of the Legal Services Act 2007; and dealing with vulnerable clients must, as part of their CPD requirements, read the guidance notes on these areas and declare on their application form they have done so.