What is a Professional Will, and why would I need one?
Most people don’t like to think about the possibility of becoming incapacitated or about their inevitable deaths. Despite this reluctance, many people understand and value the importance of having a Last Will and Testament as a way to clarify their wishes and make it easier for those wishes to be carried out upon death. And while becoming incapacitated is not a situation addressed by a personal will, people often have established powers of attorney for individuals to represent them in the event that they do become incapacitated. While people seem willing to accept the importance of drafting a personal will, few people fully consider the impact of death or incapacity on their professional lives – what would happen to their clients, to their business, if they were no longer around?
Additionally, for some professionals such as mental health providers there are state regulations that require practitioners to have a plan in place for the disposition of mental health records in the event of disability, illness, or death. See 3 CCR 721-1:16. Although these issues may not be relevant to people in every profession, for those in helping professions with legal requirements and ethical obligations to their clients, such considerations are highly relevant. Unfortunately, these issues are often not addressed adequately before an event leading to incapacitation or death.
This article will explore the idea of creating a Professional Will as a tool to help ensure mental health professionals have a plan in place for the disposition of their practice should something happen to prevent them from continuing to serve their clients. Any professional providing services to clients might benefit from the creation of a Professional Will, and the information discussed below may be appropriate in a variety of professional settings. However, the main focus of the discussion below is mental health providers, and other professionals may need to consider additional issues beyond what is addressed in this brief overview.
What is a Professional Will?
A Professional Will is a document that outlines a plan if a professional becomes incapacitated or dies. In the context of mental health, it addresses the ethical obligations of mental health providers to their clients related to ongoing care, confidentiality, disposition of records, and other considerations. It can also provide the guidelines for the closing of a professional practice in the professional’s absence.
A Professional Will is NOT a Last Will and Testament and in no way substitutes for drafting a personal will. It does not contemplate the disposition of personal assets and liabilities, but instead focuses on professional and business issues. It can, however, ease the burden on loved ones, who will likely not know how to appropriately deal with client records, ongoing appointments, billing issues, and other professional concerns. Having a Professional Will is one way to help those left behind navigate a challenging time, eliminating the need for them to figure out the right way to handle lingering professional obligations and preventing potential ethical issues related to dealing with clients and client records.
Why would I need a Professional Will?
In certain professions, practitioners develop important, confidential relationships with their clients, beyond simple arm’s length transactions between strangers. Sometimes the nature of these relationships is clear, such as with mental health providers, legal professionals, and other healthcare providers. However, professionals such as accountants and real estate brokers often have similar relationships with their clients, and it is important for all professionals to consider what would happen to their clients and records in the event of their incapacity or death. For professionals who work within organizations, there are generally policies and processes in place to deal with the possibility of death or incapacity. However, for people operating as sole practitioners, there are no such safety nets in place, and it is incumbent upon these professionals to plan for all contingencies.
Beyond practical considerations of billing and records retention or destruction, many professions also operate within ethical requirements such as continuity of care, confidentiality, and avoiding harm to clients. A Professional Will is one way to help ensure that practitioners will continue to live up to these ethical requirements and serve their clients well, even in their absence. A Professional Will allows people to make mindful decisions about how to deal with client notification, referrals, and other sensitive issues before any action must be taken instead of during times of increased stress or after it is too late to make these decisions.
What should a Professional Will include?
There are many things to consider in drafting a Professional Will, and the specifics will vary based on each profession and the needs of the clients. However, below is a list of items that should be considered for all Professional Wills:
- Designation of a Professional Executor: This is the main function of the Professional Will – choose your Executor with care, ideally someone in your profession who understands the professional and ethical standards of the field;
- Designation of a Backup Executor: In the event your Executor is not available when needed;
- Contact Information: For your Executors, current and past clients, professional liability insurance carrier, attorney, colleagues, etc.;
- Office Information: Location of office, files, keys, appointment books; passwords for e-mail, voicemail, computers and software;
- Notification instructions: Who to notify, how to contact them, and what to say – this may include past and current clients, insurance carrier, licensing boards, and more depending on your profession;
- Compensation Provision: Identify how and at what rate (flat rate, hourly billing) your Executor will be compensated for the time spent enacting the plan in your Professional Will.
This list is not exhaustive, and depending on the nature of the business there may be other important information to include and additional considerations beyond the document itself. For example, mental health practitioners using a Professional Will should include a statement in their informed consent paperwork notifying clients that in the event of their death or incapacity, a Professional Executor may have access to their records. It is important to think through the business and ethical obligations of each specific profession to determine what information to include in a Professional Will and what other actions should be taken related to the Professional Will. In addition, the Professional Will can be drafted at various levels of complexity and legal enforceability ranging from the drafting of a legal contract between the professional and the Executor(s) to a non-legally binding list of tasks and people designated to perform the tasks.
This article only touches upon the many things to consider when determining if a Professional Will is right for you. From the format of the document to what information should be included in a Professional Will, individuals will have different requirements and each person must determine what will best meet his or her professional needs. The brief overview provided in this article is intended to provide general information only and does not constitute legal advice. In making these important decisions for yourself, it may be helpful to have the assistance of an attorney familiar with your profession to help identify how you can create a document that best serves your clients and your business.
For questions regarding this article please contact Mike Smeenk.