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Therapist's Guide For Preparing a Professional Will

Kenneth S. Pope, Ph.D., ABPP & Melba J.T. Vasquez, Ph.D., ABPP

This is from Chapter 8 of the book ETHICS IN PSYCHOTHERAPY AND COUNSELING: A PRACTICAL GUIDE, 4TH EDITION by Kenneth S. Pope, Ph.D., ABPP & Melba J.T. Vasquez, Ph.D., ABPP, published by John Wiley. Copyright ©2011. John Wiley. It is presented here only for personal and individual use. Questions about any other use involving copyright should be addressed to John Wiley. Do not reproduce in any form or medium without prior written permission

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Only therapists who are invulnerable and immortal don't need to bother preparing a professional will.

The theme of therapists as vulnerable human beings runs throughout this book. We all share many vulnerabilities. We can't wall ourselves off from the unexpected. At any time a drunk driver, stroke, mugger, heart attack, fire, plane crash, and countless other unwelcome surprises can strike us down. It is an ethic of both personal and professional responsibility to take our mortality and vulnerability into account in our planning.

A professional will is a plan for what happens if we die suddenly or become incapacitated without warning.

It helps those whom we designate to respond promptly and effectively to our clients' needs and to the unfinished business of our practice.

It gives others the basic information and guidance that can be so hard to come by at a time of shock and mourning.

We recommend preparing a professional will as early as possible. We cannot schedule our personal misfortunes or postpone accidents so that they happen only late in our careers. We must prepare for the possibility that something can happen to us--robbing us of our ability to function--at any time, without warning.

No standardized professional will works well with every therapist or situation. The next sections provide a set of steps to help you create your own professional will so that it fits your needs, resources, setting, and practice.

WHO TAKES CHARGE?

Who would respond effectively in the event that you suddenly die or are incapacitated? Who can make necessary arrangements in a time of great stress; take care of matters sensitively, efficiently, and effectively; and make sure nothing important is overlooked? Who is the best person to talk to your clients?

A good professional will clearly designates a qualified person to serve as the executor and authorizes that individual to carry out the will's tasks. How can the designee be contacted in the event of your sudden death or incapacitation? What are the person's telephone, fax, and pager numbers? What are the person's office and e-mail addresses? Are others likely to know where the person is if he or she proves hard to reach?

WHO SERVES AS BACKUP?

Life tends to be full of surprises and sometimes hesitates to cooperate with our plans. At the time he or she needs to step in and take charge, the person you designated to serve as executor may be overseas at a conference or on vacation, may be attending to a family emergency, or may be seriously ill or otherwise unavailable. It is important to have a second and third designee, each ready to step in if necessary.

COORDINATED PLANNING

Coordinated planning can make for a much more useful professional will and make it easier for the executor to carry it out. You can meet with your primary designee and both backups to outline what you want done, what needs to be done, and what information the designee will need. One person may think of something that the others have overlooked, and what may seem to the therapist writing the will to "go without saying" ("You all know that bookshelf where I keep my appointment book, don't you?") may need to be explained.

If designees don't understand where something essential is, you can show them. You can introduce them to the people they will need to work with (e.g., your secretary, the executor of your personal will, your accountant, your attorney, your office landlord). They can exchange contact information with each other.

When the time comes for the designee to take charge, he or she will have detailed instructions and information in your professional will and will also know the rationale for each step (having been involved in the planning process), will know the key people to work with, and will know where the records and other materials are.

YOUR OFFICE, ITS KEY, AND ITS SECURITY

In addition to providing your office address, it is helpful to be as specific as possible about where each key to your office can be found--for example, "There are four copies of the key to my office. One is on the key ring that I always carry with me. It is the key with the blue plastic on it. My partner, whose contact information is . . ., also has a key to the office. My secretary, whose contact information is . . . has a key. The building manager, who can be contacted in an emergency at . . . has a key."

There may be separate keys for each of the consulting room doors, the storage room, the filing cabinets, the desks, the computer, and the door to the building itself. It is easy to overlook a key that someone will find essential to carry out the responsibilities of your professional will.

Some office security systems require a code. Be sure to specify the necessary codes and instructions and where the system is located.

YOUR SCHEDULE

Where is your schedule kept: in a daily planner you keep with you, an appointment book at the office, on your computer or personal digital assistant? Once the record of your scheduled appointments is located, is additional information needed to access it? For example, if you keep your schedule on your computer, what passwords are used to log on and access the schedule, where on the drive is the schedule kept, what are the names of the relevant files, and is there a backup somewhere if the copy on your computer has become corrupted or if the computer itself is unavailable (e.g., destroyed in an office fire or earthquake or stolen)?

CLIENT RECORDS AND CONTACT INFORMATION

The executor may need to contact your clients. A professional will must include clear instructions about how to locate and access client records and contact information. The ability to locate treatment records promptly may become exceptionally important because the sudden death of a therapist may trigger a crisis for some clients. The professional will should also designate whether the executor or someone else will maintain the client records of the incapacitated or deceased therapist. This information can be announced in the local newspapers and/or filed with the state psychology licensing board and state psychological association, or both.

AVENUES OF COMMUNICATION FOR CLIENTS AND COLLEAGUES

How do clients and colleagues contact you: answering machine, email, other methods? Clearly describe each and how the person carrying out your professional will can access the messages. What codes are used to retrieve messages from your answering machine? What are the names of any relevant email accounts along with the user name, password, server address for receiving and sending mail, and so on?

INFORMED CONSENT

Clients have a right to give or withhold informed consent for release of information. Documentation of consent for providing the executor with client contact information and access to client charts can be kept with the client charts and a note of it made in the professional will. One option is to include the name(s) of the executor in the original description of services that patients read and sign as part of informed consent.

CLIENT NOTIFICATION

Therapists may choose one or more methods to notify clients of a therapist's incapacitation or death, such as calling each client, placing a notice in the local newspaper, changing the outgoing message on the answering machine to include the announcement, changing the answering machine message to ask clients to call the clinician who is implementing the deceased therapist's professional will, and sending letters.

It is worth spending some time considering the potential impact of each method and considering it in terms of the Golden Rule--Would any of us want to learn of our own therapist's or clinical supervisor's death by reading about it in the newspaper or hearing a recorded announcement on an answering machine?--and of how each of our current and former clients might respond. Are there resources that clients might find helpful in these circumstances (e.g., designated colleagues who will make appointments available to your clients to help them deal with the immediate consequences and, if the clients choose, to locate subsequent therapists)?

You will have a good sense of which approaches will work best for your individual practice and the relationship you have with your clients. Some long-term patients may require special consideration.

The notification method must respect each client's right to privacy. Letters and phone messages that are not carefully handled can lead unintentionally to the disclosure to third parties that a person is seeing a therapist. Family members and others may not always respect the privacy of someone's mail and may, perhaps "accidentally," open and read mail that is not addressed to them. A telephone message left on an answering machine sometimes can be heard by those for whom it was not intended. In some cases, such unintentional disclosures can place a client at great risk. The abusive partner, for example, of a client who sought therapy because she is a battered woman may become enraged at finding out, through an intercepted letter or telephone message, that the client has sought help and may react violently, perhaps lethally.

COLLEAGUE NOTIFICATION

What colleagues should be notified immediately? Are you a member of a group practice, or do you share a suite of offices? Are there clinicians who provide consultation or supervision to you on a regular basis or who receive those services from you? Do you co-lead a therapy group or family sessions with anyone? Are there conferences or workshops where you regularly present? It can be helpful to check the listings in your scheduling book for a few months to make sure that you do not overlook any colleagues who should be listed (along with contact information) in your professional will for immediate notification.

PROFESSIONAL LIABILITY COVERAGE

It is useful to include the name of the company providing professional liability coverage, contact information, the policy number, and instructions for the company to be notified immediately on the therapist's death or incapacitation.

ATTORNEY FOR PROFESSIONAL ISSUES

Many therapists have consulted an attorney for professional issues. The attorney might have reviewed the therapist's office forms (informed consent, release of information, etc.) to ensure that they conform to state legislation and case law requirements. The attorney might have discussed the therapist's policies and procedures, format for keeping records, or particularly troublesome cases that raised puzzling legal questions. The therapist might have sought legal consultation about how to respond to a subpoena or legal representation in a malpractice suit. It is useful to provide contact information for an attorney whom the therapist consults for practice issues.

BILLING RECORDS, PROCEDURES, AND INSTRUCTIONS

The person whom the professional will designates to take charge will need to know where the billing records are, how to access them (e.g., if they are maintained by computer software), who prepares and processes the bills (e.g., a billing service, accountant, or office clerical worker), and how pending charges are to be handled.

Some therapists may wish to forgive part or all of any remaining unpaid bills that were to be paid out of their clients' own pockets. Some may wish to provide a session--at the deceased therapist's expense--for each client, during which the clinician serving as executor of the professional will would work with the client to discuss the situation, assess current needs, and explore options for future therapy. The professional will should include explicit instructions about any such wishes.

EXPENSES

How have the therapist preparing the professional will and the person designated to serve as professional executor decided that the executor will be compensated? Perhaps the easiest arrangement is at the executor’s customary hourly rate, but other approaches can be used—for example, a flat fee, a token payment, the executor declining any compensation for rendering this service to a friend, or a contribution to a charity chosen by the executor. A professional will needs to include clear instructions about how all business- related expenses are to be paid.

YOUR PERSONAL WILL

To avoid unintended problems and conflicts, it is helpful to review both your professional will and your personal will side by side to ensure that they are consistent. If a personal will, for example, directs all assets to be disbursed in a certain way but makes no mention of funds to be used to pay the executor of your professional will, problems can arise. It is useful if each will makes explicit reference to the other.

LEGAL REVIEW

Review of the professional will by an attorney skilled and experienced in mental health law can prevent numerous problems. The executor of the professional will can consult with the attorney about any legal questions arising in the days, weeks, and months after the therapist’s death.

The attorney can advise on whether, in the light of state legislation and case law, the professional will is best authenticated simply by the signatures of disinterested witnesses, the seal of a notary, or other means.

COPIES OF THE PROFESSIONAL WILL

Copies of your professional will can be given to those designated as potential executors and to your attorney. Some therapists may consider making special arrangements to ensure the executor gains access to information such as their passwords for retrieving email and answering machine messages only after their death. These arrangements avoid having confidential information in multiple copies of the will distributed to others

REVIEW AND UPDATE

People, practices, situations, and times change. A professional will that is perfectly suited to us when we draw it up may have out-of-date contact information and aspects that do not fit us well at all just a year or two later. It is helpful to review a professional will on a regular basis—say, once a year—and make an immediate update whenever there is a significant change in our circumstances.

 

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