If you're a Professional, You Need a Professional Will.
For practical, ethical and legal reasons, it is important that psychologists and other professionals plan in advance for the management of professional practice issues in case of sudden incapacity or death. A well-prepared professional will can serve to protect yourself, your estate, your patients and your family members.
Your professional will designates a trusted colleague as “professional executor” and provides all the information needed to close your practice.
You will utilize an attorney to help compile a list to facilitate executor access to all relevant contacts, client records and other important documents, including hard copy and electronic files as well as back-up files.
This is not a substitute for a Personal Last Will and Testament.
Benefits of a Professional Will
For practical, ethical and legal reasons, it is important that psychologists and other professionals including attorneys plan in advance for the management of professional practice issues in case of sudden incapacity or death. Unless you work in an organization that has policies in place to manage relevant clinical and record-keeping issues, a professional will is usually the best solution and can serve to protect yourself, your estate, your patients and your family members. A professional will designates a trusted colleague as “professional executor” and provides all the information needed to close your practice. A professional will is especially important if you are in solo practice, but may also be appropriate for psychologists who work as independent practitioners or contractors in group practices or other organizations.
Get Legal Advice
If you do not know of an appropriate attorney for this job, we suggest contacting our firm. Obtaining legal counsel can insure that your professional will meets your individual needs, is valid, and is consistent with the provisions of your personal will. You can streamline the process by preparing a draft professional will and list of questions in advance of meeting with your attorney. For example, an attorney can address questions such as: Should my professional executor sign my professional will? Are witnesses needed? Should my professional executor be paid by my corporation or LLC (if applicable) or by my estate? How should financial issues such as collecting unpaid bills be handled?
Informed Consent and Records Transfers
If you have created a professional will, we recommend that you add a brief statement to your informed consent document to notify patients that your professional executor may have access to their records in case of your incapacity or death.
How to Notify Patients
Current and past patients need to be informed of a psychologist’s disability or death as well as how to access their records. Some patients may not have told their spouses or family members that they are seeking care, which can complicate the process of notification. If you have a place in your files indicating how patients prefer to be contacted, or if you have an administrative assistant who knows the preferred means for contacting your patients, you should include this information in your professional will. Alternatively, your professional executor can be instructed to use his/her judgment in determining how best to notify patients, consistent with state law.
Options for notifying patients without alerting their family members include using your voicemail answering system and posting a notice at your office, on your website, and/or in the local newspaper. Please note that in some states, providing notice in the local newspaper is required. For example, the Florida Board of Psychology rules require the executor, administrator, personal representative or survivor of a deceased licensed psychologist to publish a notice in the newspaper of greatest general circulation in each county where the licensed psychologist practiced.
Whether or not you wish your current and/or former patients to be informed of any funeral or memorial service is a personal choice.
Know Your State Laws and Resources
Many states have adopted the APA Ethics Code or similar standards in laws or regulations governing the professional conduct of psychologists. APA Ethics Standard 3.12 states: “Unless otherwise covered by contract, psychologists make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted by factors such as the psychologist's illness, death, unavailability, relocation or retirement…” In addition, most states have laws mandating the retention of patient records for a specified number of years, and such laws may apply to the estate of a deceased psychologist.
Some states also have laws or other guidance that specifically address issues relating to a psychologist’s death or disability. However, states vary considerably in this regard, so you should be familiar with the relevant laws and regulations in your jurisdiction.
For example, Oregon requires licensed psychologists to designate a “qualified person” who will intercede for client welfare, manage records, and make necessary referrals in case of the death or incapacity of the licensee.
The New York Board of Psychology Practice Alert on “When Practice Ceases” addresses planning for the unexpected and provides detailed information on topics including confidentiality, the transfer of patient records, and patient abandonment.
Some state psychology boards, such as in Florida, keep track of who has patient records after a psychologist retires or dies. In these jurisdictions, the psychology board should be given notice of who is assuming custody of your records.
If you have further questions about creating a professional will, please contact our law firm at 626.765.4469.
*The terms “patient” and “client” may be used interchangeably in this article to refer to recipients of psychological services.
Please note: Legal issues are complex and highly fact specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time and vary by jurisdiction. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.