How to Comply with “Professional Will” Requirements

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Gadi Zohar, Esq., LMFT* *Gadi Zohar is a trusts and estates lawyer. He does not offer professional psychotherapy or psychological counseling.

The following article titled How to Comply with “Professional Will” Requirements was published in the publication for the Santa Barbara chapter of the California Association of Marriage and Family Therapists.

Here is an excerpt:

“This article can be summed up as follows:

1) You must create a plan providing for continued client care and proper maintenance of clinical files in case of your death or incapacity.

2) The Legislature should provide clearer guidance to LCSWs, LMFTs, and LPCCs for the maintenance of clinical files.

3) It is not a good idea to take license to write a professional will “free hand.”

4) Any solution should include the participation of an estate planning lawyer.”

Click here to read the article.

ASK YOUR THERAPIST IF SHE HAS A PROFESSIONAL WILL

Many psychotherapists work in private practice.  They often serve a very important function in our lives: holding our deepest hopes and fears as we traverse the peaks and valleys of our lives.  Yet, they are human beings who can die or suddenly lose capacity just like the rest of us. 

When a therapist dies, the ripple effects are going to be felt strongly by her patients.  Therapists understand very well that abandonment is one of the most hurtful experiences a patient can experience.  They plan to have a backup therapist available when they go on vacation.  But despite the fact that they are generally required to have one, most therapists do not have a professional will for referring their patients out and handling clinical files properly if the therapist dies or becomes incapacitated.  Many therapists do not even know that they are required to have such a document, which is similar to a will (hence the term, “professional will”). 

What’s more, many inexpensive professional will options available to therapists are created by other therapists, not estate planning lawyers.  You wouldn’t want a lawyer for grief counseling.  Why would you want a therapist creating a professional will?  It is simply unreasonable to expect a therapist to think like an estate planning lawyer. 

 
If you are a patient, ask your therapist if she has a professional will.  You have a right to know, just as you have a right to know whether she carries malpractice insurance.  in fact, the American Counseling Association requires disclosure of the existence of a professional will in the patient-therapist informed consent agreement.  Hopefully your inquiry with your therapist will spur a healing conversation about the mortality of the people on whom you depend.

Remember that your therapist is human too.  If she doesn’t have a professional will, it’s not because she’s irresponsible.  Many therapists simply do not know they need such a document.  They have so many ethical demands that they are not likely to think about this one without being informed.  To illustrate the point, you might want to share with them the story of a real person whose therapist died without a professional will.  This is not just an academic exercise.  It really does happen.

Finally, therapists are not lawyers.  So they might not consider the fact that such a document should be vetted by an estate planning lawyer.  The best solution is to get a lawyer involved.  It doesn’t have to be a $3,000 estate plan.  They can create their own professional will and have an estate planning lawyer give an opinion/recommendations.  Or they can try therapist-will.com, which offers a relatively inexpensive online option.  But therapist-will.com is only available to California therapists at this time.

It is very easy to avoid this topic until it’s too late.  In the spirit of Seven Ponds, you are invited to break the avoidance norm and broach this topic with your therapist.  Hopefully, you’ll both be glad you discussed it.

First Hand Account of Patient whose Therapist Died without a Professional Will

In February of 2012, a person apparently living with bipolar disorder posted the words below on HealthBoards.  Her therapist died without a professional will and the patient was lost afterwards.  This type of suffering and sense of abandonment can be prevented or at least mitigated by therapists in a few minutes and for a relatively modest fee by simply going to Therapist-Will.com.

My Therapist Died

I’ve had the same therapist for over ten years. She was more than that, she was my friend. I could tell her ANYTHING even the most horrible thoughts. It’s been about 9 months and I’m suffering by not having sessions with a therapist. My PD doctor is ok but simply rights prescriptions. How do I start over? In order to understand me and how I got here they would or should know everything. How in the world am I supposed to do that? Number one I would be reliving everything thru the discussions, number two it would take FOREVER, I’ve had a lot of crap in my life and number three how do I replace someone like her? She had her own practice so nobody I could ask for direction and I’m not even sure what has happened to my medical records. I’m in desperate need of help but I don’t know where to start.”

If you go on to read the message board, you’ll see a whole host of people advising the author on what she can do to get her records and look for a new therapist.

Below is one such posting.  Notice how the author is surprised that nobody “inherited” the deceased therapist’s practice.

Re: My Therapist Died

I’m so sorry for your loss, I love my therapist too, and can’t imagine how grief stricken I would be to lose her suddenly…..I’d need therapy immediately to help me through it! No one took over her practice and “inherited” her patients? I think you need to find someone new immediately, and it may take more than one try to find the perfect fit, but you need to talk to someone ASAP! Good Luck!”

Click here to see the post and all responses on HealthBoards Health Message Boards.

The Death of My Therapist: A Patient’s Story

The following is an excerpt from an article called The Death of My Therapist: A Patient’s Story in Psychiatric Times by an anonymous author known by the screen name “NeedsFixing.” Had this person’s therapist had a professional will, this patient might not have suffered the abandonment feelings she went through. With Therapist Will, tragedies like this one can be mitigated with a commitment of a few minutes and $79 from a therapist. We just need to get the word out to therapists about how easy it is!

“I did not allow my therapist’s death to push me over the edge, but what about her other patients? Did they get what they needed? Do the professionals in her circle have any idea what her patients went through? Do other therapists have better contingency plans? I know no one likes to think about his or her mortality, but shouldn’t there be a plan in place if something happens? If I had not reached out, would I not have learned anything about what happened? Why wasn’t the therapeutic community there to help me get through this loss?

What I went through is apparently not an isolated incident; when I told others in the therapeutic community, they reported similar experiences with patients who had gone through the death of a therapist. Therapists need to be made aware of the effect this can have on patients; they should be taught to develop a plan so that they can offer services to those left behind.  I know that I would have had a difficult time no matter what. But if people had been available to help me deal with the loss it would have made me feel less vulnerable and alone.

It has been a year since my therapist died. As her anniversary approached, I kept thinking about her and my anger surfaced again. I have gotten over the abandonment I felt from her death, but I still haven’t gotten over the anger I felt at being left with no support or guidance from her colleagues. I am using this story to help me deal with my anger by putting it to productive use. I am hoping therapists will learn from reading about what I went through. Please take some action so that someone else does not have to go through what I did.”

The full article is available on the Psychiatric Times website by clicking on the hyperlink in this sentence. You must register with Psychiatric Times in order to read the full article. Membership is free of charge and you do not have to be a health care provider in order to register.

I did not allow my therapist’s death to push me over the edge, but what about her other patients? Did they get what they needed? Do the professionals in her circle have any idea what her patients went through? Do other therapists have better contingency plans? I know no one likes to think about his or her mortality, but shouldn’t there be a plan in place if something happens? If I had not reached out, would I not have learned anything about what happened? Why wasn’t the therapeutic community there to help me get through this loss?What I went through is apparently not an isolated incident; when I told others in the therapeutic community, they reported similar experiences with patients who had gone through the death of a therapist. Therapists need to be made aware of the effect this can have on patients; they should be taught to develop a plan so that they can offer services to those left behind. I know that I would have had a difficult time no matter what. But if people had been available to help me deal with the loss it would have made me feel less vulnerable and alone.

It has been a year since my therapist died. As her anniversary approached, I kept thinking about her and my anger surfaced again. I have gotten over the abandonment I felt from her death, but I still have not gotten over the anger I felt at being left with no support or guidance from her colleagues. I am using this story to help me deal with my anger by putting it to productive use. I am hoping therapists will learn from reading about what I went through. Please take some action so that someone else does not have to go through what I did. – See more at: http://www.psychiatrictimes.com/articles/death-my-therapist-patients-story#sthash.peZ0pK8V.dpuf

I did not allow my therapist’s death to push me over the edge, but what about her other patients? Did they get what they needed? Do the professionals in her circle have any idea what her patients went through? Do other therapists have better contingency plans? I know no one likes to think about his or her mortality, but shouldn’t there be a plan in place if something happens? If I had not reached out, would I not have learned anything about what happened? Why wasn’t the therapeutic community there to help me get through this loss?What I went through is apparently not an isolated incident; when I told others in the therapeutic community, they reported similar experiences with patients who had gone through the death of a therapist. Therapists need to be made aware of the effect this can have on patients; they should be taught to develop a plan so that they can offer services to those left behind. I know that I would have had a difficult time no matter what. But if people had been available to help me deal with the loss it would have made me feel less vulnerable and alone.

It has been a year since my therapist died. As her anniversary approached, I kept thinking about her and my anger surfaced again. I have gotten over the abandonment I felt from her death, but I still have not gotten over the anger I felt at being left with no support or guidance from her colleagues. I am using this story to help me deal with my anger by putting it to productive use. I am hoping therapists will learn from reading about what I went through. Please take some action so that someone else does not have to go through what I did. – See more at: http://www.psychiatrictimes.com/articles/death-my-therapist-patients-story#sthash.peZ0pK8V.dpuf

I did not allow my therapist’s death to push me over the edge, but what about her other patients? Did they get what they needed? Do the professionals in her circle have any idea what her patients went through? Do other therapists have better contingency plans? I know no one likes to think about his or her mortality, but shouldn’t there be a plan in place if something happens? If I had not reached out, would I not have learned anything about what happened? Why wasn’t the therapeutic community there to help me get through this loss?What I went through is apparently not an isolated incident; when I told others in the therapeutic community, they reported similar experiences with patients who had gone through the death of a therapist. Therapists need to be made aware of the effect this can have on patients; they should be taught to develop a plan so that they can offer services to those left behind. I know that I would have had a difficult time no matter what. But if people had been available to help me deal with the loss it would have made me feel less vulnerable and alone.

It has been a year since my therapist died. As her anniversary approached, I kept thinking about her and my anger surfaced again. I have gotten over the abandonment I felt from her death, but I still have not gotten over the anger I felt at being left with no support or guidance from her colleagues. I am using this story to help me deal with my anger by putting it to productive use. I am hoping therapists will learn from reading about what I went through. Please take some action so that someone else does not have to go through what I did. – See more at: http://www.psychiatrictimes.com/articles/death-my-therapist-patients-story#sthash.peZ0pK8V.dpuf

Patients’ Rights Dictate that Psychotherapists and Counselors must have a Professional Will

A psychotherapist is under a duty to create a professional will, because most if not all ethical codes as well as various laws require the clinician to provide for undisrupted care of patients in the event of an untimely death or incapacity.[1]  Most, if not all, psychotherapists and counselors know that they must leave a backup therapist available when your regular therapist is unavailable (due to illness or vacation, for example).  The same concept holds true equally, if not more so, in the event a therapist meets an untimely demise or somehow loses the capacity to treat patients.  Therefore, a professional will must act as the backup in such situations so that the patient’s rights are protected.

In addition to the care of patients, a psychotherapist must make sure clinical files are available to the patient or for the patient’s benefit.  This is a patient’s right.  This again evinces the need of a professional will.

As the term professional will suggests, the document acts very much in the same manner as what we traditionally think of as a will.  Instructions are left to be followed by designated responsible people.  And because the professional will is more like a will than any other traditional legal document, there are many advantages to involving a trusts and estates attorney to create a professional will.

Therapist-Will.com was founded by a trusts and estates attorney and Licensed Marriage and Family Therapist.  Our documents are vetted by licensed trusts and estates attorneys in every state we serve.  And the process of creating a Therapist Will professional will makes it possible for therapists to complete a personalized professional will in 20 minutes.  And the cost is so reasonable that there is simply no legitimate excuse for a licensed private practice clinician to fail to create a professional will.

 

 

[1] See, e.g., California Association of Marriage and Family Therapists Code of Ethics Rule 1.3; National Association of Social Workers Code of Ethics Rule 1.15; American Psychological Association Code of Conduct Rules 3.12 and 10.09; American Counseling Association Code of Ethics Rule C.2.h.; California Business and Professions Code §2919.

Therapist Will’s “Exhibit A” gives Therapists Freedom with an Important Twist

Recently, a Therapist Will user asked us a question about her “Exhibit A.”  For those who do not know, our professional wills attempt to provide you with restricted options to make it virtually impossible for you to create terms in your professional will that would cause problems in the future.  To counterbalance those restrictions, we include an optional “Exhibit A” in which a therapist may write whatever instructions may have been missing from the professional will template.  Below is an excerpt from that email in which we explain these important concepts.  It was written by Gadi Zohar, the founder and CEO of Therapist Will.  He is a trusts and estates attorney by profession, and that background informs the creation of Therapist Will.

I want to explain the deeper concept behind my professional wills.  I have seen many unfortunate cases where someone tried to do their own estate planning either by trying to write something out themselves or through using a service that allows people to create their own wills online or otherwise.  The problem with those do-it-yourself services, in my opinion, is that they allow people too much space to “free hand.”  I can’t tell you how many times I have seen people write something they think is clear, but after they are gone their survivors don’t necessarily agree on the meaning.  In one recent example I participated in an 8 hour mediation where the language of the will was such that one could understand my client’s mother to have left her half of the house to my client or half of her half (i.e. 1/4 of the house) to my client.  That was done with a form will purchased online.  So let’s say the mother saved $2,000 or even $3,000 with the online form will.  I can tell you that her daughter and husband spent many times that amount of money on the dispute resolution.  In this case, I think the family relations can actually be repaired, but as you can imagine, that is another unfortunate cost of the do-it-yourself approach.
This is what I want to avoid while providing people with an affordable option to create a solid professional will.  I can just picture the case in the future where someone dies and their client commits suicide or harms someone else.  A plaintiff’s attorney would have a field day finding out that a therapist didn’t have a professional will.  And as just about everyone seems to know on one level or another, litigation is miserable.  This leaves me wanting for a solution to help people prevent this type of tragedy, especially on the heels of what would presumably be another tragedy (whatever causes a therapist to die or become suddenly incapacitated).  I understand that just about nobody is going to pay a lawyer thousands of dollars to create a professional will and the other options out there are not done by trusts and estates lawyers (and I’m sorry to say that it shows).
With that background, I’ve created a $79 professional will that is virtually impossible for people to mess up.  In so doing, I provide limited choices and essentially no room for substantive “free hand” provisions like the ones I have seen when settling disputes like the one I described above.  To counterbalance that fairly restrictive measure, I’ve created the “Exhibit A” option.  Because some people will have many very legitimate wishes to include additional instructions, and they ought to be able to put anything they want in their professional will.  So if you look at the explanation of the Exhibit A in the main body of the document you’ll see that the Exhibit A is explicitly for guidance only and anything in the Exhibit A that contradicts a material term in the document is considered void.  For example, if someone said for whatever reason in their Exhibit A that they want their clinical files turned over to a person who is not covered under HIPAA (e.g., “Once you refer my clients out, give the clinical files to my wife whom I have always trusted and cherished.” [and who is not a therapist]), they can write that in the Ehibit A and the professional will has a backstop allowing the clinical executor to do something else, and perhaps tell the wife that the deceased clinician trusted her with the clinical files and cherished her, but the clinical executor has to override that directive in order to comply with HIPAA.
This is just one example of the depth of thought I’ve put into this document, which is hard to explain in advertising.  I could put you to sleep (or scare you to death) talking about this stuff for hours.
The link below shows you the instructions attached to the Exhibit A in an actual Therapist Will.