A Professional Will is a legal document used by independent professionals to plan for unexpected closure of practice through death, incapacity, or any other unforeseen circumstances. It is commonly used by most practitioners in mental health e.g therapists, psychologists, counselors, psychotherapists, etc
In fact, The American Psychological Association, one of the biggest organizations of psychologists and related members such as doctors, educators, consultants, scientists, clinicians, etc recommends that professionals should have a Professional Will for ethical and legal purposes as well as practical use. A Professional Will ensures that there is proper continuity or closure of any unfinished practice with as much ease as possible.
In a Professional Will, the practitioner appoints an executor who is mandated with ensuring that all relevant parties are informed of your incapacitation or demise, handle any legal issues that may arise, and carry out any other necessary duties to facilitate the proper closure of the practice. In a team practice, other than solo practice, the executor may be a colleague who may take up your responsibilities to ensure continuity of the business where possible.
In the event of death, a Professional Will is executed hand in hand with a Personal Will. That means an executor of a Professional Will works closely with your attorney and the executor of your Personal Will. For example, your personal will might state the fees to be paid to your Professional Will executor. This means that both documents need to be in harmony. However, it is good to note that a Professional Will does not take the place of your Will and Testament.
How to create a Professional Will
With the help of a guide such as this one and online templates, you can create a Professional Will with ease. It helps to also consult with your state laws as they may differ from one state to another.
1. Communicate with your executor
The first step when creating a Professional Will is to identify a professional executor and their back up and have a discussion with them about your intention of naming them as executors to your will. If they are on board, you can go ahead and discuss in detail what you would like contained in the will and your wish on how you would like your will handled. It is advisable to nominate an executor who is your colleague or another licensed professional therapist. You should maintain communication with the executor(s) in case of any updates or any new information that they should be aware of.
Consulting an attorney for legal advice such as if your Professional Will is in line with applicable laws is an important step. The attorney can review your Professional Will alongside your Personal Will to ensure consistency. For example, you may have omitted in your Personal Will how to handle the fees of the executor of your Professional Will.
Your executor can also consult your attorney on any legal issues that may arise in the execution of a Professional Will in case of your death. It is therefore a good practice to introduce them to each other.
3. Get informed consent from clients
You need to include a clause in your description of services that seeks consent from your clients to expose their information and records to an executor in the event of your death or incapacitation. This clause can further state that the executor if is a colleague, can go ahead and offer care or refer the clients to appropriate help.
This acts as a notification on who is the appointed executor so that the clients are not surprised to hear from him/her. Also, you are able to gather the clients’ preferred methods of notification about your incapacitation/death.
4. Update regularly
Over time the contents of Professional Will might need to be reviewed and updated to maintain its relevance. For example, the client list might have changed due to the addition or removal of some clients, their contact details, a change in your executor, etc. You should create a habit of reviewing it and making any needful changes once or twice a year or whenever there is a significant update.
What is contained in a Professional Will?
It is not surprising to find different formats of a Professional Will, however, all Professional Wills should at least name an executor, give clear instructions to the executor on how to close the practice by granting access to the professional records. The following is an exhaustive list of additional content to include in a Professional Will.
This is the first paragraph of the Professional Will, declaring that the document therein is a Professional Will. It should also include a disclaimer to state that the document should not be used in place of a Personal Will and that it replaces any other earlier versions of the document (if existent).
In addition, it is good practice to state the intent of the document. That is, to provide access to your professional records and a clear guideline to the Professional Will executor with regards to your practice in the event of your death or incapacity.
This section details your information as the owner of the Professional Will. That includes; your name, professional ID or License number, your office location and address.
The next item to include in a Professional Will is the Professional Executor complete with their personal details such as contact information (phone number, email address, etc). It is advisable to have an executor who is a licensed practitioner in psychology or mental health in general.
As a best practice, you need to have a second (and at times third) executor for back up in case the primary executor you have named is unavailable for various reasons. Details of these other executors should also be indicated in this section as well as a clear definition, including ranking the order they are to come in as executors in the unavoidable absence of the other.
Powers/Authority granted to the executor
The authority given to an executor different from his specific instructions should be listed down in this section.
Most of these powers include;
- The power to make decisions with regards to storing, disposing, and releasing your professional records in accordance with the applicable laws.
- The power to implement all actions necessary to successfully execute the Professional Will.
- The authority to delegate or seek any additional help from relevant people crucial to assist in the execution of the Professional Will.
Other relevant parties
Where applicable, other than the Professional executor, there are other relevant parties such as your attorney and the executor of your Personal Will. These should be named and their contact details outlined in this section. They will need to work together to ensure that your will is executed properly.
This is an integral part of the Professional Will. It details the location and access of your professional information. For purposes of avoiding confusion, you should create separate lists/forms/folders that are clearly labeled. You will need to outline information on;
- Current clients data list including their history and contact information
- Past clients data
- A list of persons that can help in accessing your professional records e.g family members, members of staff, colleagues, etc
- Any evaluation or test items/materials that you use on your clients
- Appointment and scheduling information
- Financial and billing data
- Location and access to your computer or any other devices used in your practice
- Relevant passwords to access your professional information
- Website address and access if you have one
- Office telephone number, access code to your voicemail
- Keys and passcodes to your office, files, and any other storage devices.
If the information above is in separate lists, these may be attached to the Professional Will and stored as agreed upon in the Will.
It is important to keep updating most of the information in this section as it is bound to keep on changing.
We mentioned that other than the powers granted to the executor, there are specific instructions on how to go about the execution of the Professional Will. These are at your discretion and may include;
- Notification to clients
Depending on your relation and professional history with your clients, you may have devised how and what you want each of them to be notified. For example, some of your clients may have an explicit method of notification that is discreet since they might not want anyone else to know that they have been seeking professional therapy.
In other instances, state laws may dictate a particular way to notify clients of the demise or incapacitation of their therapist e.g in Florida, executors are required to place a notice of your demise in the largest circulating newspaper within the area you were practicing.
You can also have specific instructions on what communication should be made to your clients. Does it include your memorial arrangements, referrals to a specific therapist etc.
There is also an option to leave out the discretion of notifying your clients to the executor. You can grant him the freewill to choose the best method based on his sound judgement while also being in line with both the legal and ethical requirements.
Notification does not only apply to clients, it should also be made to colleagues, psychology licensing board and insurance provider covering your professional liability.
- You can also have a billing instruction where all your current clients get a free session at your expense to express their feelings about the change, their future plans on therapy etc. Another example of a billing instruction is outlining your billing process, if your executor should collect any outstanding bills in full or if they should forfeit collection.
- An executor may be instructed to facilitate the access of clients records to be used in ther future therapy sessions upon their request and the archiving of the rest of the records in accordance with the relevant laws.
This section includes the agreed executor’s compensation. You should have agreed prior with your executor as well as the back up executors on the expected fees that should be paid to them for executing the Professional Will. The fees may be in the form of a flat fee, an hourly rate or a lumped up fee. It should also be clear who is responsible to pay the fees, normally the executor of your Personal Will from your estate.
Witness and Signatures
A Professional Will cannot be complete without your signature and that of two other witnesses. This authenticates the document. When selecting your witnesses, remember to exclude any persons who may be contentious as explained in this guide.
Where to keep a Professional Will
A common practice is to have four copies of your Professional Will, one copy for your executor, the second copy for your attorney, the third copy for your Personal Will, and the fourth one for the policy insuring Professional Liability.
Why you should have a Professional Will
Professionals offering therapy are ethically required to facilitate continued care for their patients/clients. This means that having a Professional Will is crucial in meeting this obligation. A Professional Will also ensures that your responsibility for care does not have to end with your demise or incapacitation. It offers a smooth transition e.g through the access of their records and any other guidance necessary to make sure that they still access the care they require.
A Professional Will lifts off the burden of having your family and colleagues make difficult decisions regarding your practice. Some of them may not have the expertise, any prior knowledge, or a direct guideline on how to handle matters. This is smoothened by a Professional Will as it lays out clear instructions and access to any needed information in your absence.
With a Professional Will, your personal property /estate is safeguarded from any liability as your clients cannot sue to reach for your property to settle any claims.
Your clients’ personal records, as well as your vital professional information, are well protected by a Professional Will so that only authorized persons e.g. an executor can have access to such information.
It is a fact we do not know what the future holds for us. Certain events such as death are inevitable to everyone. When you are in a practice where many people rely on you for professional care, it is important to constantly think about what would happen to them if you cannot continue providing that care. One of the ways to bring you at peace with this is having a Professional Will in place. This is especially so if you are in solo practice unlike when in an organization that has policies and procedures on how to handle clients’ records in the event of your absence.