Recently, the lives of numerous mental health professionals and business owners were changed forever due to a tragic and unexpected explosion.  As you may recall, on August 26, 2019, an explosionrocked an office complex and shopping center in Columbia, Maryland.  22 businesses were affected, some of which were mental health practices. Although I do not have any connection to these practices directly myself, one can be certain that there are a number of logistical and strategic issues that now arise for them including how to handle clients while they recover from this disaster. Fortunately, nobody was killed or harmed in the explosion. As I read the news, though, I was reminded of the importance of proper business planning, which includes having a professional will in place.  

Very often in discussions with clients of my own, I find that this is a topic that mental health practitioners often do not consider, know where to begin, or even what questions to ask when it comes to setting up a professional will, let alone what a professional will actually even is. Besides basic unfamiliarity regarding this, some of the hesitation may also be due to the belief that post-mortem planning is not something people like to talk about.  

So, let’s first start with the easy question. What is a professional will?A professional will is simply a written plan for your practice that can be implemented in the event that you die unexpectedly (or expectedly) or became incapacitated.  Just as you may have a personal estate plan (including a will, an advanced directive and other planning documents) for yourself, so should your practice have such a plan in place for it.  The professional will shall appoint someone, called an Executor, to administer the provisions of the will.

So why have a professional will?  A primary consideration is simply because you are required to have something in place, per the ethical rules governing your license in Maryland (and likely in many other states too).  

Your ethical obligations (and those of your practice) does not end when you become incapacitated or die.  As a licensed mental health professional, you have an ethical obligation to your clients to prevent client abandonment and ensuring their continued care, and ensuring that they are placed with another practitioner and/or practice, if necessary.    

For example, the NASW’s Code of Ethics, Section 1.07 (t) indicates that it is the ethical duty of social workers to have a plan to deal with client information in the event of the social worker’s passing.  

The American Counseling Association’s Code of Ethicsalso details an ethical duty to have a plan in place under Section C.2.h.  Section B.6.i also requires that precautions be made in advance of a therapist’s passing, to protect the confidentiality of clients’ information.

The American Psychological Association’s code of ethics, the Ethical Principles of Psychologists and Code of Conduct, also has two relevant sections related to advanced planning as well. Section 4.08(a) states that it is a psychologist’s duty to make reasonable efforts to have a plan in place, and Section 5.09 also deals with protecting the confidentiality of client information in the event of a psychologists’ death.   

A professional will would address these ethical duties laid out by NASW, the ACA and the APA.  Another way to look at it is, just as purchasing insurance to cover your business and professional license is an essential (and required!) expense for your practice, having a professional will is also an essential part of owning a practice.

So, who should be an Executor?  Although some practitioners may choose not to, it is highly recommended that your Executor be a licensed mental health professional, rather than a friend or family member.  A professional will with a licensed mental health professional named as its executor shall ensure that your partner or spouse is not left having to deal with your practice in the event of your untimely passing.  This is important from both an ethical and legal perspective.  

By naming a licensed professional as your executor, you are ensuring there is someone familiar with the ethical and legal obligations expected of a mental health practice, including how to address handling confidential protected health information (PHI) as required under HIPAA, as well as the aforementioned obligations to your clients.

Furthermore, by having a mental health professional as your Executor, their experience with handling clients and the ethical duties expected of the Practice may help to prevent later claims by clients against your estate due to how they or their PHI were handled as your practice was closed, sold or transferred.

Having a professional will also means that a plan is in place as well to address any financial obligations that your practice may have, be it a lease agreement, payment for wages and salaries owed to employees and contractors, or any other financial obligation your practice may have.   As discussed above, this potentially could help reduce the likelihood of a legal dispute arising as well.

There are practical reasons for having a professional will in place too.  As mentioned above, a professional will with a licensed professional as its Executor can prevent leaving a costly and burdensome set of tasks for your partner, spouse or family to deal with on top of the already overwhelming tasks they may have handling the affairs of your own personal estate.  

So, what should a professional will include?In addition to naming an Executor to administrating the terms of the will, the will should also answer the most pressing questions regarding your practice, including:

  • Who are your practice’s clients and how does your executor get in touch with them? What is to happen with them in the event the practice closes or if it is sold?
  • What about the practice’s schedule(s)?  Will the Executor have access to it?  
  • What is required for the executor to access your physical office location?  Is there an ID or pass-card needed?  Are keys needed?  Where are copies of the keys needed for access located?  
  • Where is the practice’s client, administrative, and/or personnel records stored?  How do you access them (e.g. are there logins and passcodes)?
  • Does the practice and/or you have a website, professional pages or profiles online and/or social media accounts? What are the logins and passwords needed to access these sites?
  • What is going to happen to the practice in the aftermath of your passing or incapacitation? Is it going to be transferred or sold? Is it going to be closed?
  • What is going to happen with your employees and your contractors? If there are salaries or wages owed, who will make sure they get paid?
  • What about your lease obligations? Or other financial obligations the practice had?
  • Are you planning on compensating your Executor for their time and effort to carry out their duties?  If so, how much?  Where are the funds coming from?

In addition to drafting the professional will, there are some other practical considerations for you to take into account as well.  You need to determine where copies of your professional will shall be stored, and if copies will be given to anyone, including your Executor, in advance of any possible incapacitation or death.  

You also have to consider client informed consent.  As mentioned above, in the event of your untimely passing or incapacitation, your Executor will be responsible for contacting your clients and potentially even accessing their records.  One way to easily get informed consent from clients for your Executor to do this is to update your initial client paperwork/intake forms they sign (which should include an informed consent clause generally anyway) to include a clause granting consent to your Executor, if ever necessary.

Lastly, know that your professional will is a written, signed paper document, not one carved in stone (literally and metaphorically speaking) for a reason.  This is a document that is meant to and should be updated from time to time.  Remember, a professional will, as with a personal will, is designed to express your wishes and desires at a time when you are no longer around to make them known yourself.  Since we cannot obviously predict when or if our own passing may occur, having the will updated prior to it actually happening is extremely important.  A good rule of thumb is to re-review your professional will every few years or so and/or whenever there are material changes to your practice (such as expanding, moving offices, adding employees, partners, etc.).  If changes may be needed, you can consult an attorney to assist you with updating it as necessary.

In conclusion, developing a professional will, should be far from a morbid and anxiety provoking experience. It should serve as a huge stress-reliever for you, as once it is in place you know that in the event of your passing or incapacitation there is a plan. It is ready to go with the right people to administer it, so there is no ambiguity or risk for your practice or your family. 

For more information or assistance with developing a professional will, or for other legal considerations regarding your health-care or mental health practice, or to set up a free consultation, contact Mayer Law, LLC today at (443) 595-M-Law or by email at contact_us@danielmayerlaw.com.

DISCLAIMER:

This article is legal information and is not provided as a source for legal advice. It is made available by Mayer Law, LLC firm for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog, you understand that there is no attorney-client relationship established between you and Mayer Law, LLC. This blog should not be used as a substitute for competent legal advice and you should consult with an attorney before you rely on this information.