Under the Legal Services Act, probate is one of six reserved legal activities. "The Legal Services Act's regulatory objectives include improving access to justice, and protecting and promoting the interests of consumers," explains Chris Greenhalgh, Manager, Quality Assurance Department, ICAEW.
Alongside this, the Legal Services Board's (LSB) current strategic themes include fairer outcomes for people experiencing disadvantage and reducing the unmet need for legal access across large parts of society.
In compliance with the Act's objectives, and to support the LSB's themes, accredited firms and authorised individuals providing probate services must therefore recognise and address the vulnerability, or potential vulnerability, of clients.
To help them do this, ICAEW has produced tailored guidance on dealing with vulnerable clients. Anyone applying to become an authorised individual must also confirm that they have read and understood this guidance.
ICAEW's guidance is based on information contained in The Legal Services Consumer Panel's guide 'Recognising and responding to consumer vulnerability – A guide for legal services regulators', which includes risk factors contained in the British Standard on Inclusive Service Provision (BS 18477).
In outlining the risk factors that firms working in probate should be looking for, the ICAEW guide notes that "consumers of legal services are often dealing with life-changing events. Some may also feel vulnerable and recognise they have limited knowledge".
"This explains it really well," says Sophie Wales, Head of Regulatory Affairs and Policy at ICAEW. "It talks about life events, and I think that's certainly what we are dealing with in probate work."
The risk factors are designed to help identify circumstances that could contribute towards making a client vulnerable. There are 20 factors to consider and these range from mental and physical ill health or disability to low income, inexperience, bereavement and relationship breakdown:
|Mental health issues
|English as a second language
|Being a carer
|Lack of internet access
|Loss of income
|Release from prison
"The guidance talks about the presence of one or more of these risk factors increasing the likelihood of someone being at a disadvantage during a transaction or communication," says Chris.
"And for probate there are two that are probably going to be there for every client," he explains. "One is inexperience because most people don't commonly deal with the process. And then you're going to be dealing with bereavement by the very nature of the engagement. So you're always going to have at least one or two, probably two, as a minimum starting point for almost every client."
"You should probably be thinking about most of your clients as being vulnerable," adds Sophie. "So when we talk about vulnerable people, we need to think about it in a broader context because people who you wouldn't think of as stereotypically vulnerable could be vulnerable in these circumstances. And that's predominantly because they're bereaved and they're probably dealing with a process they're completely unfamiliar with."
"They don't really know how it's going to work or what their choices are, for example what they can do themselves and what should they be getting a professional to do," she explains. "They don't know how long it's going to take and there's a lot of confusion about what their rights are as a beneficiary and as an executor."
"It's also ripe for there to be issues, concerns or misunderstandings and potentially aggrieved parties," she adds, "so it's especially important to think about vulnerability when you're dealing with probate work."
"Then if you start to layer on top some of the more traditional characteristics that would make someone vulnerable – such as a mental or physical ill health – it becomes even more important that you recognise the issues and ensure people have fair access to justice," stresses Chris.
Clarity and support
"A lot of the firms accredited with ICAEW have become accredited because they want to service their existing client population," says Chris. "So by virtue of that, they probably have a good relationship with the people that are coming to them for probate already."
"What our firms can also help with is terminology and jargon," he adds. "Because there's a lot of people that might be going along in life quite happily as clients of your firm and then they say to you: 'I've just been told I'm an executor of someone's will' and they don't really understand what that means for them."
"You can cut through the jargon and explain the process, and that can reduce the vulnerability that comes from inexperience and not being familiar with the process or terminology."
"There are often family dynamics and sensitivities too," says Sophie. "And you need a skilled professional to navigate the technical side of it and the relationship side, and give clarity to people."
Although the ICAEW Code of Ethics does not explicitly address working with vulnerable clients, its fundamental principles of integrity, objectivity and confidentiality are key.
"Both our guide for legal services and our general guidance for members and firms working with vulnerable clients ultimately come back to our Code of Ethics," emphasises Chris.
"There's an important interplay here," he explains. "We might be talking about sensitive scenarios, for example, and confidentiality is key to everything that ICAEW members do, and it's at the core of what we're about."
"Our members and firms are really in a position of responsibility and trust here," stresses Sophie. "And they are well placed to help and support vulnerable people through the process."