This information is intended to supplement the Spring/Summer 2014 Good Practice article “Your Professional Will: Why and How to Create,” which includes a Sample Professional Will.

Benefits of a Professional Will

For practical, ethical and legal reasons, it is important that psychologists plan in advance for the management of professional practice issues in case of sudden incapacity or death. Unless you work in an organization that has policies in place to manage relevant clinical and record-keeping issues, a professional will is usually the best solution and can serve to protect yourself, your estate, your patients* and your family members. A professional will designates a trusted colleague as “professional executor” and provides all the information needed to close your practice. A professional will is especially important if you are in solo practice, but may also be appropriate for psychologists who work as independent practitioners or contractors in group practices or other organizations.

Get Legal Advice

APAPO recommends that you hire a knowledgeable attorney to assist you in creating a professional will. If you do not know of an appropriate attorney for this job, we suggest contacting your state psychological association for a recommendation. Obtaining legal counsel can insure that your professional will meets your individual needs, is valid, and is consistent with the provisions of your personal will. You can streamline the process by preparing a draft professional will (using our Sample Professional Will) and list of questions in advance of meeting with your attorney. For example, an attorney can address questions such as: Should my professional executor sign my professional will? Are witnesses needed? Should my professional executor be paid by my corporation or LLC (if applicable) or by my estate? How should financial issues such as collecting unpaid bills be handled?

Informed Consent and Records Transfers

If you have created a professional will, APAPO recommends that you add a brief statement to your informed consent document to notify patients that your professional executor may have access to their records in case of your incapacity or death. Sample language that can be inserted in your informed consent is provided below: 

In case I am suddenly unable to continue to provide professional services or to maintain client records due to incapacitation or death, I have designated a colleague who is a licensed psychologist as my professional executor. If I die or become incapacitated, my professional executor will be given access to all of my client records and may contact you directly to inform you of my death or incapacity; to provide access to your records; to provide psychological services if needed; and/or to facilitate continued care with another qualified professional if needed. If you have any questions or concerns about this professional executor arrangement, I will be glad to discuss them with you. 

For current patients, you can simply print out the above paragraph for their signature. 

Although it is always preferable to let patients know in advance if records may be transferred to another professional, your professional executor may be legally permitted to receive your records even if you have not previously obtained patient consent. For example, your professional will may effectively transfer legal responsibility for your records to your professional executor and/or your personal will may authorize your personal executor to delegate responsibility for patient records. As a practical matter, patients will likely be grateful that you have made arrangements in advance for a qualified colleague to handle your affairs.

How to Notify Patients

Current and past patients need to be informed of a psychologist’s disability or death as well as how to access their records. Some patients may not have told their spouses or family members that they are seeking care, which can complicate the process of notification. If you have a place in your files indicating how patients prefer to be contacted, or if you have an administrative assistant who knows the preferred means for contacting your patients, you should include this information in your professional will (see Sample Professional Will, Paragraph FOURTH (C)). Alternatively, your professional executor can be instructed to use his/her judgment in determining how best to notify patients, consistent with state law. 

Options for notifying patients without alerting their family members include using your voicemail answering system and posting a notice at your office, on your website, and/or in the local newspaper. Please note that in some states, providing notice in the local newspaper is required. For example, the Florida Board of Psychology rules require the executor, administrator, personal representative or survivor of a deceased licensed psychologist to publish a notice in the newspaper of greatest general circulation in each county where the licensed psychologist practiced. 

Whether or not you wish your current and/or former patients to be informed of any funeral or memorial service is a personal choice. It is recommended that you include your preferences in this regard, if any, in your professional will (see Sample Professional Will, Paragraph FOURTH (C)).

Know Your State Laws and Resources

Many states have adopted the APA Ethics Code or similar standards in laws or regulations governing the professional conduct of psychologists. APA Ethics Standard 3.12 states: “Unless otherwise covered by contract, psychologists make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted by factors such as the psychologist's illness, death, unavailability, relocation or retirement…” In addition, most states have laws mandating the retention of patient records for a specified number of years, and such laws may apply to the estate of a deceased psychologist. 

Some states also have laws or other guidance that specifically address issues relating to a psychologist’s death or disability. However, states vary considerably in this regard, so you should be familiar with the relevant laws and regulations in your jurisdiction. 

For example, Oregon requires licensed psychologists to designate a “qualified person” who will intercede for client welfare, manage records, and make necessary referrals in case of the death or incapacity of the licensee. 

The New York Board of Psychology Practice Alert on “When Practice Ceases” addresses planning for the unexpected and provides detailed information on topics including confidentiality, the transfer of patient records, and patient abandonment.   

Some state psychology boards, such as in Florida, keep track of who has patient records after a psychologist retires or dies. In these jurisdictions, the psychology board should be given notice of who is assuming custody of your records.

If you have further questions about creating a professional will, please contact the Legal and Regulatory Affairs Department by email or 800-374-2723.
*The terms “patient” and “client” may be used interchangeably in this article to refer to recipients of psychological services. 

Please note: Legal issues are complex and highly fact specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time and vary by jurisdiction. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.