In mid-July of 2014 I received an inquiry from a lawyers’ list serve asking if anyone knows what to do with a deceased therapist’s clinical files. I will call the deceased therapist “Frank.” My reply to the inquiry surprised several seasoned estate planning lawyers who were unaware of the sensitive issues around proper handling of clinical files, and the risk of a law suit against Frank’s estate because Frank did not have a professional will.
Frank’s son (I’ll call him “Jeff”) was the personal representative of Frank’s estate. I spoke with Jeff on July 18, 2014. I explained to Jeff that he cannot access Frank’s clinical files, which luckily Jeff already knew. Jeff then revealed to me that Frank died in mid-June, 2014. In other words, by the time I spoke with Jeff, Frank’s patients had gone a month not knowing what happened to their therapist. I advised Jeff to call the California Psychiatric Association to ask for assistance in finding a clinician to handle the clinical files and to follow up with Frank’s patients (a CAMFT attorney once informed me that CAMFT gets similar calls several times each year). Next came something truly unpleasant.
I had to advise Jeff that his father’s estate is now in danger of being sued for negligence (i.e., malpractice), because Frank did not have a professional will. I told Jeff that he needed to “start the clock” to countdown to the end of the limitation period for a negligence law suit against Frank’s estate. Because under California law the estate can be sued if a patient or a third party is injured (i.e., hospitalized/hurts herself, or another person) as a result of Frank’s failure to provide for a professional will. (See California Code of Civil Procedure section 377.20.) Jeff now lives with the knowledge that as personal representative of his father’s estate, he could be forced to defend a law suit against the estate.
If you are a private practice therapist with no professional will, you are rolling the dice every day. Although the odds are you will never need a professional will because you will likely survive past your retirement, you are making your gamble with other people’s proverbial treasure, because it is the survivors and patients who pay when a therapist dies or becomes incapacitated without a professional will.
You can take care of this issue faster and easier than you may know simply by visiting www.Therapist-Will.com.