Technical helpsheet issued to help ICAEW members consider the practical implications on accepting an appointment as a sole principal’s alternate.
This helpsheet has been issued by ICAEW’s Technical Advisory Service to help ICAEW members consider the practical implications on accepting an appointment as a sole principals alternate.
Members may also wish to refer to the following guidance:
Accepting the appointment
Accepting an appointment as an alternate is a serious decision and it is important to consider the following:
- Skill set: Are you familiar with the type of work and the client base of the sole principal’s practice? Does the practice provide regulated activities such as audit, investment business, insolvency and probate? Do you hold the necessary licenses/registrations required to carry out this work, if necessary?
- Capacity: Do you have spare capacity, should the time come, to take on extra work?
- Practicalities: Will you have access to files physically/electronically? Will you have access to the office and/or client money account? Has cloud access been arranged for access to information? Will accepting an appointment impact your current PII policy to cover your work as alternate?
A simple agreement between yourself and the sole principal may be helpful in respect of holiday absences or for short term illnesses other than mental incapacity. However, in the event of death or incapacity you should be aware that you might be acting without proper authority and would risk incurring liability for acts that were not properly authorised, for example you could be liable to a subsequent claim for damages, perhaps by beneficiaries of the estate of the sole principal as a result of actions taken.
It is recommended that a legal binding agreement is entered into providing a legally valid basis for the appointment. This approach consists of the following:
- Property and Affairs Lasting Power of Attorney (LPA) for the alternate to act during any periods of incapacity, and
- Provision for the appointment of the alternate as a special executor in the sole principal’s will (other executors may be appointed in respect of the rest of the estate), and
- An acknowledgement of the arrangement appointing the alternate and specifying the terms and conditions.
Legal advice is strongly advised in structuring these agreements.
As soon as you have assumed responsibilities for the conduct of the sole principal’s practice (whether because of the sole principal’s incapacity or death) you must do the following:
- Notify ICAEW. Your guide to maintaining your firm’s record.
- If you do not have an ICAEW practising certificate or it has lapsed, you must immediately apply for an ICAEW practising certificate. If you are also a member of another professional body you would also need to discuss any practising requirements with them.
- Check the PII’s policy renewal date and secure the continuance of the sole principal’s PII policy during any period of incapacity. In the event of the sole principal’s death, you must discuss the matter with their next of kin and check the sole principal’s PII to ensure that the policy will cover your conduct of the practice. You should also consider discussing arranging run-off cover with the next of kin. We would also recommend you inform your own insurance provider that you are acting as an alternate.
- Write to the list of current clients of the sole principal introducing yourself and advising them of the incapacity or death of the sole principal.
If any client advises that they do not wish you to deal with their affairs, then you must comply with their wishes and instructions.
Continuing the sole principal's practice
During the period of incapacity or following the sole principal’s death, subject to you holding the necessary regulatory licenses and registrations, you must carry on the practice in a proper and professional manner and take all responsible steps to preserve the goodwill of the business:
- The sole principal’s practice must be continued under its existing name and title. All business letters or other communications issued by the alternate must bear in a prominent position the following wording:
The practice of [name of sole principal] who [has died / is temporarily incapacitated] is temporarily being carried on by [name of alternate].
- Determine as soon as possible for each client the nature of the engagement, its extent and appropriate deadlines relevant to each client. If any errors or defaults of the sole principal comes to your attention, try to correct the errors and notify the professional indemnity insurer.
- Keep all the records of the practice up to date. In additional you must maintain records of expenses incurred in conducting the practice and the remuneration due to you as the alternate. Guidance on fees can be found in the ICAEW Code of Ethics.
- If you encounter a conflict of interest between the interests of your own clients and those of the sole principal’s clients, you should act in accordance with ICAEW Code of Ethics on conflict of interest. Alternatively contact the Technical Advisory Services on +44 (0)1908 248250.
Sale of the practice during period of incapacity
If, while you are conducting the practice of the sole principal, the sole principal’s next of kin agree to sell the practice to another party, you should take all reasonable steps to facilitate the transfer in accordance with its terms.
If the sole principal is incapacitated in such a way that consent to such is unlikely ever to be obtained and the incapacity seems likely to continue, you should seek independent legal advice.
Taking over the practice on death
Your authority, as a special executor, stems from the WilI and therefore, in theory, you can act immediately following the death. In practice, it may be difficult to operate the business effectively before probate is granted, because the grant confirms the executors’ authority to third parties such as the practice’s bank. It may be possible for the special executor to apply for a ‘limited grant’ covering only the practice (the normal grant of probate would cover all of the estate of the deceased).
Once you take over the practice you must open new books of account. This would also be required if the sole principal dies when the alternate is already conducting the business under an LPA. These new books of account must be maintained until the practice is disposed of or until your responsibilities come to an end.
New temporary bank accounts including a client bank account, if appropriate, would need to be opened at the practice’s bank. All receipts and payments of the practice must be made through these accounts pending the grant of probate. On such grant, the temporary accounts must be consolidated with the existing accounts of the practice.
It may be sensible to contact HMRC and Companies House, particularly if the sole principal died close to filing deadlines. They may be sympathetic in giving extended filing deadlines.
If in doubt seek advice
ICAEW members, affiliates, ICAEW students and staff in eligible firms with member firm access can discuss their specific situation with the Technical Advisory Service on +44 (0)1908 248 250 or via webchat.
© ICAEW 2023 All rights reserved.
ICAEW cannot accept responsibility for any person acting or refraining to act as a result of any material contained in this helpsheet. This helpsheet is designed to alert members to an important issue of general application. It is not intended to be a definitive statement covering all aspects but is a brief comment on a specific point.
ICAEW members have permission to use and reproduce this helpsheet on the following conditions:
- This permission is strictly limited to ICAEW members only who are using the helpsheet for guidance only.
- The helpsheet is to be reproduced for personal, non-commercial use only and is not for re-distribution.
For further details members are invited to telephone the Technical Advisory Service T +44 (0)1908 248250. The Technical Advisory Service comprises the technical enquiries, ethics advice, anti-money laundering and fraud helplines. For further details visit icaew.com/tas.