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.