This code is intended to establish a set of guidelines as to how Members of the BEST Foundation are to conduct their business, and to ensure that there is a set of common guidelines for all.
It takes into account that Members of the BEST Foundation work in many disciplines and backgrounds in providing estate planning solutions to clients.
The aim of this code is to provide ethical standards that Members must comply with, in order to act in accordance with the highest professional standards and to protect the interest of clients and the industry.
Definitions:
- In this Code reference to ‘Client’ may mean individuals, those instructing a Member jointly, or those who are part of a company instructing a Member in relation to Estate Planning.
- ‘Members’ refers to members of the BEST Foundation, and could be an individual or someone working on behalf of a corporate body with a membership of the BEST Foundation (the ‘Company’).
1.0 General Provisions of the Code
1.1 This Code of Practice will ensure that where a Member of the public instructs a Member (or the Company of a Member) in relation to an Estate Planning matter, they will have access to competent, ethical, and professional services.
1.2 A Member shall always ensure that they and anyone who acts on their behalf does so in accordance with the laws and regulations of the jurisdiction in which they operate.
1.3 The BEST Foundation and its Members will ensure full compliance with this Code of Conduct. Any non-compliance may result in disciplinary action, which could include removal as a BEST Foundation Member. Additionally, information regarding the breach may be shared with other parties if deemed necessary.
1.4 This code of Conduct applies to the following services offered by Members and / or their Company:
1.4.1 Preparation of Wills and other testamentary documents
1.4.2 Estate Planning and administration of estates of the living
1.4.3 Estate Planning and administration of estates of the deceased
1.4.4 Power of Attorney
1.4.5 Advice and execution of Deeds
1.4.6 Storage of documents
1.5 A Member who delegates work to another individual or manages or supervises someone providing advice or documentation in relation to the above services is responsible for ensuring that the work done complies with this Code as if it was done personally by them.
2.0 Conflict of Interest
2.1 Members or their Company must not act where a conflict of interest arises.
2.2 A conflict arises where a Member of Company has a duty to act in the best interest of more than one individual in relation to the same or related matter, or where the Member’s own interests’ conflict with those of the client.
2.3 A Member shall at all times exercise independent professional judgement. No Member should allow their independence or integrity to be compromised.
2.4 A Member must not place undue pressure on a Client to use their services.
2.5 The Member should not prepare documentation for a Client where the Member, anyone in their immediate family, or someone have a close business relationship with, benefits under that documentation.
2.6 Where a Member is asked to prepare documentation for a member of their family, it is best practice to decline to do so, in particular where the Client requires advice in circumstances that may result in litigation.
2.7 Where instructions are taken jointly from Clients, the Member shall confirm that:
2.7.1 They are asked to act jointly for the Clients
2.7.2 No information given to the Member can be confidential from the other
2.7.3 A resulting conflict would mean that the Member could no longer continue to act for either of the Clients.
3.0 Competence
3.1 Members must complete annual training in line with the BEST Foundation’s Continuous Learning Requirements to ensure that their expertise remains current, up to date and in line with best advice. The BEST Foundation reserve the right to request evidence of a Member’s continuous learning..
3.2 Members must only provide services to clients which they are adequately covered by Professional Indemnity Insurance to offer.
3.3 Members must obtain Professional Indemnity Insurance for a minimum of £2,000,000. The BEST Foundation reserve the right to request evidence of this at any time.
3.4 Members or their Company must only take up work which is within their competence. They should not undertake work for a client that they are not able to perform without delay. Where a Member feels they cannot assist a Client for any reason, they must decline to act. They may refer a client to another Member who is competent to perform the required work.
3.5 In accordance with their duty of care, the Member must deal promptly with new enquiries, instructions to draft documents, queries, and issuing documents for execution.
3.6 Where a Client declines advice, or does not wish to pay for advice, the Member is under no obligation to proceed with providing advice.
3.7 Members must use a software package for drafting documentation from the BEST Foundation’s Approved List of Providers.
3.8 Members must provide a storage service. The BEST Foundation reserve the right to request evidence of this at any time.
4.0 Legislation
4.1 Members and their Company must always ensure that all relevant statute is adhered to, including but not limited to:
4.1.1 General Data Protection Regulation (GDPR)
4.1.2 Consumer Rights Act 2015
4.1.3 Consumer Credit Act 2006
4.1.4 The Consumer Protection from Unfair Trading Regulations 2008 and Consumer Protection Regulations 2014
4.1.5 The Consumer Contracts Regulations 2013
4.1.6 The Money Laundering Regulations 2007, 2017 and 2019
5.0 Promoting the Business
5.1 Members will not refuse to act for a client based on the client’s race, sex, colour, ethnicity, religious beliefs, disability, age, or sexual orientation.
5.2 Members must never coerce and harass clients to make decisions and must assist them to make informed decisions.
5.3 Members must not make unsolicited visits or phone calls to prospective or potential clients.
5.4 Members must not contact anyone named in the documentation they are instructed to produce for a Client unless:
5.4.1 the contact is required to undertake the duties owed to the client as part of the contract.
5.4.2 The client is deceased and the executors and/or the beneficiaries are being notified.
6.0 Information/cancellation of a contract for clients
6.1 Members must from the outset provide the name of the Member acting for the client and if this is through a Company the name of the Company.
6.2 The terms of business must be provided to the Client and signed by the Client in advance of work commencing.
6.3 The terms of business must include what level of professional indemnity insurance the Member or their Company has.
6.4 Members or their Company must always ensure that the Client has been advised on the right to cancel a contract and the cooling off period prior to incurring fees and how these are calculated.
6.5 Members must inform the Client if their information is to be passed to third parties in order to carry out their instructions.
7.0 Fees
7.1 Information on prices for each product or service provided must be listed to the Client.
7.2 Fees shall be fair and reasonable and fully disclosed to the client in advance of work beginning.
7.3 Fees shall be deemed and fair and reasonable taking into account the following:
7.3.1 The complexity of the work
7.3.2 The time spent by the Member
7.3.3 The outcome for the client
7.3.4 Any special circumstances, such as time constraints
7.4 A Member may agree another basis of charge with a Client but any agreement must be in writing and signed by the client before work is commenced.
7.5 The client should be given a 14 day cooling off period, which should be made clear in the terms provided by the Member.
7.6 Where a Member offers a free or discounted price Will or Wills they must make their clients aware of the normal retail price that would have been charged, with and without the purchase of additional goods or services, and why they are entitled to the free or discounted service.
7.7 Discounted and free Wills must not be used as a means to ‘upsell’ unnecessary goods or services to a client and where appropriate there should be no requirement or obligation for a client to have to pay anything in addition or have to receive other services of goods.
Additionally, such clients in receipt of a Member’s free or discounted Wills must not be prejudiced and must receive the full service of a normally priced Will or Wills provided by the Member.
7.8 The BEST Foundation does not encourage free or discounted Will services and reserves the right to request further information from a Member where such services are offered. The BEST Foundation may also wish to make contact with a Member’s clients who are in receipt of these services, to obtain their feedback and views.
8.0 Vulnerable clients
8.1 A vulnerable client is someone with a disability, elderly, infirm, someone with a learning disability or someone who has requested services at a time when they are ill or in distress and do not have the satisfactory knowledge / understanding of the advice given and to understand the document that has been requested to be produced. Nonetheless, the Member deems the Client to have sufficient capacity to act on behalf of the client.
8.2 Members must take reasonable time to ensure that complex terminology and the services being provided are explained to vulnerable clients in a manner that is understandable and if requested, in writing.
8.3 Members shall carefully record their conclusions as to capacity and seek an opinion from an appropriately qualified medical practitioner if the circumstances demand this.
9.0 Money Laundering Regulations
9.1 Members must always comply with the Money Laundering Regulations 2007, 2017, and 2019.
9.2 In accordance with the regulations, Members must take all reasonable steps to securely obtain evidence of the client’s identity in light of the risk-based approach.
10.0 Confidentiality
10.1 A Member is under the strictest duty to treat all information they have about a client confidentially. In accordance with this duty, they must not disclose this information without the consent of the client unless legally required or professionally obliged to do so.
10.2 The duty of confidentiality a Member has to a Client continues after a Member no longer acts for a Client.
11.0 Protecting clients’ funds
11.1 Members must reimburse a Client as soon as possible when a Client has cancelled a contract in accordance with their statutory rights.
11.2 Members must not take payment in advance for services that would be carried out after the Client’s death such as Trustee or Probate services.
12.0 Administering the estate of the deceased
12.1 Members must ensure that they attain:
12.1.1 Sufficient evidence of the executors and whom they are working on behalf of.
12.1.2 Sufficient evidence to verify and identify the deceased and proof of their death.
12.1.3 Obtain reasonable information in relation to the estate:
12.1.3.1 Assets
12.1.3.2 Liabilities
12.1.4 Obtain reasonable information of an individual who may have a claim against the estate.
12.2 Members should clearly state if estate administration work is being carried out by them or another company instructed on the client’s behalf.
12.3 Members should provide executors or the residuary beneficiaries with an estimate of the amount of time it may take to complete work before commencing the administration of the estate on their behalf.
12.4 Members should provide executors or the residuary beneficiaries with an estimate of costs before commencing the administration of the estate.
13.0 Complaints
13.1 Members must have a complaints procedure in place and ensure that this is provided upon request from a Client.
13.2 The complaints procedure will outline how a complaint is to be made, the information required and who the complaint must be addressed to and the time it will take to respond to the complaint.
13.3 If the Client is not satisfied with the Member’s response once their complaint procedure has been exhausted, then the Client must be informed that a Complaint can be lodged with the BEST Foundation.
13.4 All complaints should be acknowledged within 7 working days from receipt of the complaint by the Member and a formal response should be made to the Client within 14 working days. If more time is required to address the complaint, then this shall be confirmed to the Client in writing.
13.5 A record of the complaints should be kept on record to provide to the BEST Foundation as and when requested.
14.0 Continuity Arrangements
14.1 A Member shall ensure that they have made appropriate arrangements to ensure the continuity of their business in the event of their prolonged incapacity or death.
15.0 Disciplinary Procedure
15.1 Breach of this code of conduct by any Member may result in disciplinary proceedings being initiated by the BEST Foundation.
