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By: Nola Nordmarken, M.A., and Ofer Zur, Ph.D.
Table Of Contents
Introduction
Why A Professional Will Is Necessary
Professional Codes Of Ethics On Abrupt Termination
Components Of The Professional WillThe Executor
Team Members And Their Duties
Preparing Your Team
Records And Security Information
Client Records
Financial Records And Procedures
Client Notification And Communication
Professional Notification
Disposition Costs
Attorney For Professional Issues
Copies Of The Professional Will
Introduction
Steve was a creative, energetic, warm and caring psychologist with an easy smile and a unique ability to emotionally connect respectfully with even the most difficult clients. He was a highly valued and active member of the professional community as well as being a devoted family man. He woke up one morning telling his wife, “I think I need to be checked out.” He was dead before the paramedics arrived. Another colleague, Pam, had a special talent in working with really tough kids in an outward-bound program. She went to sleep in a cozy mountain cabin she and her family had rented for the weekend only to awaken speechless and disoriented the next morning. Tests revealed a massive stroke that left her without speech and unable to continue her practice. While rare, some tragic stories involve psychotherapists who have committed suicide or who have been murdered by their clients.
We have all heard a story or two. There are sad stories of colleagues who have suffered brain damage following a car crash and others who have been left with permanent disabilities following freak accidents. We shake our heads, offer words of sympathy and return to the fog of denial related to our own vulnerability and mortality. It’s easy to get caught up in the flow of our day-to-day personal and professional lives and to put off thinking about the possibility that we, too, could be surprised by sudden death, disability or significant life changing events.
While most clinicians have completed their personal will or ‘living will,’ far fewer have taken steps to prepare a professional will. There are many possibilities for why we hesitate. The idea of performing this task may seem so daunting in its organization and follow through that it is easily placed at the bottom of a very long to-do list. It also may be superficially comforting to avoid the feelings related to our lack of control over death and disability, or to reassure ourselves that those experiences will occur in a very distant future. However, each of us will die, and most of us will have at least some period of disability before that occurs. While most of us are likely to retire before we get to an acute state, some may not have this option. For the sake of our clients, family and colleagues, we have a responsibility to make decisions and plan ahead so that we might prevent additional complications and suffering to those who will survive us. Creating a professional will is the way to prepare for such eventuality. For psychotherapists in private practice this can be a relatively simple task. It basically includes appointing an executor, a team of back-ups and some simple instruction on how to contact clients. The trusted colleagues, mentioned in the will, will be responsible for maintaining legal and ethical standards as they conduct the disposition of your practice. They will be trusted to provide appropriate referrals and transitional support for your clients, notify licensing and insurance agencies and maintain proper handling of client information and files, as well as a myriad of other tasks.
Why A Professional Will Is Necessary
As therapists, it is our responsibility to provide the best possible care and to do no harm. If we die unexpectedly or become suddenly incapacitated, our clients have certain needs and rights that extend past our ability to respond to them. Some of these issues are legal rights, such as the handling of records and appropriate referral and transitioning for ongoing treatment. Others are more practical, such as decisions regarding the closure of offices and the letting go of staff, while some are more sensitive clinically and include the processing of clients’ feelings regarding the sudden loss of relationship. It may even be wise to address the concept of the professional will and plans for referral and management of records early in the therapeutic relationship. Thus your client is aware that you have made provisions for this possibility.
Few professional codes of ethics provide detailed standards or principles as guidelines in these situations. One can easily argue that the injunction against harm, by itself, is a mandate to have a professional will in order for continuity of care and appropriate handling of records to be carried out in accordance with the codes of ethics and the law. Ethically speaking, clients have the right for our care of them to extend past our own death, and this can best be accomplished by preparing a professional will.
A professional will can be prepared with a relatively small amount of time, effort and planning. It will ease our minds to know that this document is in place. If the unfortunate occurrence of sudden incapacitation or death occurs prior to the quiet and orderly retirement from professional life that we would all like to envision, it will certainly ease the transition for everyone. Without this the burden of these responsibilities often falls initially to the therapists’ spouse, other family members or close friends who may be caught up in a wave of grief. In most situations they are not aware of how the practice has been managed, are not clear about the details of confidentiality in all of its’ aspects nor do they have the clinical background to assess and provide for what is best in terms of helping clients process the loss or to refer them to appropriate professionals. Colleagues are better equipped but may be at a loss as to how to locate the information necessary to make the smoothest transition for all involved. Certainly, we do not want our lack of planning to add additional burden to friends, family and colleagues, nor do we want our clients to have less than optimal care. A professional will can also help to protect our estate from being sued due to the mishandling of records or client care. A professional will can be fairly simple or quite complex. This course provides suggestions for use in formulating a personalized professional will. It is not intended as legal advice.
Professional Codes Of Ethics On Abrupt Termination
Some professional codes of ethics provide a detailed review of the principles and standards to be followed in the event that a mental health practitioner abruptly dies, becomes disabled or must close the practice unexpectedly. Other codes do not attend to such cases. Only the CAMFT code of ethics mentions the term “professional will.”
Regardless of whether the notion of therapists’ abrupt disengagement from the practice is mentioned in the code, it is clear that each professional code alludes to the necessity for therapists to attend to such eventualities. One can easily argue that the injunction against harm, by itself, is a mandate to have a professional will in order for issues of continuity of care and appropriate handling of records to be carried out in accordance with the codes of ethics and the law.
For a detailed article on the codes of ethics on abrupt termination, click here.
Components Of The Professional Will
Most psychotherapists’ professional wills are likely to include the following components:
Naming an executor for one’s professional will is the first step in constructing such a will. A clinically licensed executor, as well as one or two back-ups, should be named for even the smallest practice. When choosing these people, consider how your death or disability might personally affect the individuals who you are asking to serve as executor or backups and decide accordingly. For example, if your practice partner happens to also be your best friend, he or she may feel that acting as executor is a positive way to honor your memory and to process the loss. It’s also possible that acting in that position might feel overwhelming and too painful, so it’s good to discuss this ahead of time if you feel there may be an issue. The professional executor should also have the contact information for the executor of the personal will, the attorney and vice versa. They may be required to work cooperatively in certain instances. A large and complicated practice requires many more hours of work for the executor and the backups, and this should be considered when deciding the number of team members needed, as well as whether or not they will be compensated. Some therapists simply agree to provide these services to one another free of charge while others prefer to compensate at the usual hourly rate or to donate a fixed amount to a favorite charity of the therapist who provides the service. In any case these details should be included in the will.
A second and third backup should be named to carry out responsibilities designated by the executor or to head the team in case the executor is not available at the time of need. Duties can be divided and assigned to individual team members. This includes such things as changing the outgoing message on the answering machine; contacting clients to assist with processing, referrals and transitions; sharing phone duties, notifying colleagues and professional organizations, etc. You may choose to organize the division of these responsibilities ahead of time or leave it to the person who functions as the main executor.
Once you have identified your executor and team members, it is good to meet with each of them individually or, if schedules allow, as a group to go over your professional will, meet one another and to answer any questions. If schedules do not allow a face-to-face meeting, you might consider a conference call. Each of the team members should have contact information for the others and should be given a copy of the professional will and other instructions before the meeting. If you meet physically as a group, it is best to do this in your office where you can show them where things are kept as you go over the written description.
Records And Security Information
Full access to all records, facilities and communication devices must be available to the executor. This includes locations and keys, or other pertinent access information, to offices, hospitals, storage facilities, post office boxes, file cabinets and clinical and billing records. Include the location and access codes for computers, emails, message services or machines. Contact information for others who have access to these facilities and records, such as practice partners, secretaries, business managers or facility managers, should also be included.
Client records should be organized into groups of current and past clients. Requirements vary from state to state but most require that records be held anywhere from 7 to 12 years. Outdated records should be destroyed, preferably shredded. If the client makes a request in writing, he or she may receive a copy of their records or the records can be forwarded to the new treatment provider. Clients should be informed regarding where their records will be maintained. This information can also be published in the local newspaper, as well as being filed with licensing boards and professional organizations. You should make a notation of any clients for whom it would not be clinically advisable to receive their records. These clients need to make an application to the Office of Record Access of the Department of Health. The Public Health Law, Section 18, may be referred to for a description of reasons why a patient may not have access to their records and provides information necessary for the client to make an appeal.
Financial Records And Procedures
Billing records are to be kept separate from clinical records. Your executor will need to know current billing procedures, who does the billing and how to contact them. Written permission should be given to billing or service management so they may easily convey relevant information to the executor. If the billing is maintained by computer software, information regarding how to access the records will be needed. Information should also be conveyed regarding how you would like ending charges to be managed.
Client Notification And Communication
The location of current clients and the current practice schedule, as well as pertinent contact information, will be needed in order to notify clients who are scheduled on the day of the therapists’ disability or death. If it is not possible to contact these clients before the time of their scheduled appointment, a note can be affixed to the office door directing them to contact the executor or other team members.
Dividing clients between team members for initial notification, referral and transitioning assistance is an option. Also, provide contact information for any past clients you may want to be contacted. Make the team aware of the different modes of client communication, such as email, answering machine, etc., as well as where and how they can access clinical client files in order to smoothly communicate with the client and to provide the best possible individual care. Include information on the location of these communication devices and how to access them. Make lists of codes, passwords, server addresses and the location of necessary clinical client files and keys. Provide written permission to answering service management allowing them to work cooperatively with your executor and team.
You may choose to make notes suggesting how you would like notification to occur and what wording to use, or you may choose to leave this up to the discretion of your team members. Some therapists choose to write a letter to their clients to be delivered after the initial contact with a team member. If this is the case, you will need to provide a list of clients who should receive these letters.
Team members should also know how to respond if clients request attendance at a memorial service, or if they request contact with family members in any way. Make a note of your favorite charity for clients who request this information.
The company providing professional liability insurance and your licensing board should be notified immediately. Make the policy number, license number and contact information available.
Provide a list and contact information for clinical referrals, colleagues or organizations that you would like to have notified. This list should include professional organizations, hospitals or clinics where you are on staff, schools where you might teach and previously scheduled lectures and/or workshops. Business licenses and journal subscriptions should be canceled. Provide contact information and instructions if you want the notice of your death to appear in your professional journals.
Consider the business expenses that are to be paid and provide clear instructions about how this is to be accomplished. Identify the person who has power of attorney to write checks and manage professional finances. Consider all regularly scheduled expenses and how to handle them. This could include such things as postal boxes, billing services, utilities, etc. Expenses involved with closing the office, moving office furniture and storage of files might also be considered in this category. Address how to handle vacated office space. If you have been renting or leasing space, this requires contact information for the leasing agent and directions to cancel or sublet the lease. If you own some or part of the building in which you have practiced, direct your professional executor to coordinate with the executor of your personal will.
Attorney For Professional Issues
Consider consulting with a professional forensics expert, the attorney for your professional organization or one who is experienced in mental health law. You may find that, depending on state laws, it may be sufficient to simply have the document signed by witnesses or to use a notary. Also, check to be sure that your personal and professional wills do not contradict one another in any way.
Copies Of The Professional Will
Your executor and team members should have copies of your professional will. A copy of the professional will should be given to an attorney.
Summary
Our primary responsibility as therapists is to provide optimum care and to do no harm. Although few professional codes of ethics provide detailed standards or principles as guidelines in these situations, one can easily argue that the injunction against harm, by itself, is a mandate to have a professional will in order for continuity of care and appropriate handling of records to be carried out in accordance with the codes of ethics and the law. Ethically speaking, clients have the right for our care of them to extend past our own death, and this can best be accomplished by preparing a professional will. A professional will can be written with a relatively small amount of time and effort. In its simplest form it should include the appointment of a clinically licensed executor who has been given information and access to your schedule and client records. A more inclusive will can include detailed instruction regarding executor and team preparation, client and professional notification and communication, records and security information and financial instructions. The more detailed the will, the greater the probability that the disposition of your practice will go smoothly with the least amount of stress to family and the best possible care for clients.