At this point, it seems to me that following the rules of conventional article writing is useless. I’m done with the rules. Why? Because you still don’t have a professional will. (For the tiny minority of you who do have a professional will, I’m not talking to you. I’m talking to just about everyone else.)
I’ve written articles in third person with citations. I’ve shared real life stories of people who died without a professional will and my advising their survivors that they need to start the statute of limitation clock ticking, because someone can now sue the estate for malpractice. I’ve cited to real cases where estates were sued for negligence for much less than failing to leave a professional will. (There’s a citation for you.) I’ve explained to people how the law creates a right to sue your estate for your malpractice even if you’re dead. (There. I just did it again.) I’ve given talks. Advertised in The Therapist. Maybe I just need to break the rules and tell it like it is.
Do we really need to wait for a colleague to die and cause “newsworthy” damage from failing to leave a professional will? Because it seems to me that even a death of a colleague alone isn’t even enough to motivate most people to get this done. Every time I mention this topic to a group of therapists, someone walks up to me with a story of how a colleague died without a professional will and the aftermath was trying for that person’s survivors.
What’s it going to take to get you to sit down and get your professional will done? Hopefully this article will do it, because that’s my ultimate goal here. Maybe you’re annoyed by my tone right now, but I hope you don’t use that as your excuse to continue putting this off. Clearly I’m not trying to win a popularity contest. You can focus on my tone or you can focus on getting your professional will taken care of once and for all. You decide.
I do not recall knowing about professional wills when I was practicing as an LMFT. Maybe you’ve been in the same boat until this moment. I happen to be a wills and trusts attorney and that is how I came to realize the gravity of this issue.
Professional Wills 101: Why You Need One
If you’re not informed about professional wills, I’ll give you the quick explanation now. CAMFT Rule 1.3 effectively requires that you create a professional will. Unfortunately there are no guidelines for what a “professional will” should look like. On top of that, a Licensed Marriage and Family Therapist must maintain clinical records (in accordance with HIPAA of course) for a minimum of 7 years after termination of treatment. In the legal field, a common truism is that without a remedy, there is no law. In other words if I say “stealing is illegal” but there is no legal consequence for stealing, it’s effectively legal to steal. The converse applies here. There is no statute that says you have to have a professional will per se. But the rules and laws cited in this paragraph that create a remedy – you or your estate can be sued if you fail to create a professional will. These rules and laws are the basis that forms a de facto requirement that you create a professional will. Because if you (or your estate) can be sued for not doing it, you’re effectively required to do it. Thus I would submit that where there is a remedy, there is a law.
But do you really need rules and laws here? I’m going to take a leap here and guess that you genuinely care about your patients and loved ones. I know you do. For no other reason than you just plain care.
Recommended Content for Your Professional Will
The point of a professional will is straightforward. If you die or become incapacitated, a clinician needs to be assigned to refer your patients out to appropriate care as soon as possible. And then someone needs to take control of your clinical files in accordance with relevant privacy laws. It’s a lot better for everyone if you leave some basic instructions. Enter the document we’re calling a “professional will.” Although I am not the biggest fan of the “DIY” approach for this type of thing, I’d rather you do it yourself than do nothing if those are the only two options. So I’m giving you some guidelines.
There is no particular set of rules dictating the elements necessary for a valid professional will. But I’ll give you one imperative: Don’t over think it! I’ve seen too many people get mired in thinking of just the right clinician to refer patients out, contacting the clinician, considering what to do about a funeral service, etc. Done is better than perfect. Get something done now and do your deep thinking later. The purpose and nomenclature tells us that a professional will is substantially similar to a will or living trust that an estate planning lawyer would create. Years of experience (and litigation) have yielded a number of best practices for drafting wills and trusts, which I have adapted into my recommendations for your professional will. Some of these best practices in the context of a professional will can be summed up as follows:
1. Identification of the creator. It is a good idea here to use the name most people know you by, whether or not that happens to be your legal name. You should also include your office address(es), and license number(s) so that it is absolutely clear who you are.
2. Appointing a “clinical executor.” Generally, attorneys advise that only one person act as executor, because one does not want to slow down the administration process with disagreements among multiple executors. This is not to say that the executor is not allowed and encouraged to seek outside assistance. But there should be one person who has the final word where judgment calls are needed. You should also name at least one and preferably two alternate clinical executors in case your first choice can’t/won’t act.
3. Authority of the clinical executor. The clinical executor should have express authority to access physical and electronic clinical files and to contact active patients. It is always a good idea to spell that out, since this is probably the clinical executor’s most important function.
4. Outside assistance. This is very important in my opinion. You should take steps to ensure that the clinical executor has quick access to clinical files. It may be a good idea to name one or two people (a family member or close friend) who can help with non-clinical issues like access to the premises where clinical files are located and reimbursement for out of pocket expenses.
5. Compensation of the clinical executor. This is tricky, because a professional will does not necessarily have the same force and effect of a traditional will. Nevertheless, I feel strongly that some intent and authorization (whether or not legally enforceable) should be expressed for the compensation of the clinical executor because he or she is taking on personal liability by referring patients and taking possession of patient records.
6. Overriding clauses. Estate planning attorneys make a lot of money off of people who try to do their own estate planning, because often in such cases people write in terms that are unclear, incomplete, or unlawful. This risk can be somewhat mitigated by clauses that instruct clinical executors to override any directives that turn out to be unlawful, unethical, or inappropriate under unforeseen circumstances.
Estate planning attorneys could add many more terms like a HIPAA release in case of incapacity to permit doctors to speak with your clinical executor, various contingency clauses, and so on. You should seek professional help from an attorney or an attorney-created template in order to incorporate some of these more technical clauses.
Frankly, having a non-attorney complete this task makes me nervous. I see a lot of plans go bad when people do their own estate planning. But I’d rather you do it yourself than do nothing.
Just get it done. PLEASE!
I have thought long and hard about this both from the perspective of a former clinician and as a practicing trusts and estates attorney. I don’t need to preach to this audience about the tendency to avoid the topic of our mortality. I’m not throwing stones from my glass house. But at a certain point, you just have to sit down and get this done, because your patients and loved ones are counting on you. Now it’s up to you. You can focus on my unprofessional tone. You can put this off for tomorrow. Or you can do a little research and get this done.
Gadi Zohar, Esq., LMFT is the CEO of TherapistWill.com, an online professional will solution. He also practices as a trusts and estates lawyer in Palo Alto, California. He no longer provides professional psychotherapy or psychological counseling. This article is for information purposes only, and does not constitute an attorney-client relationship. The opinions of the author are not a guarantee of any particular outcome.
