Professional Wills and Preparing for Personal Emergencies
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Disclaimer
This guide addresses management of a New York therapy private practice upon the death or incapacitation of the practice owner. It does not include every consideration and there are more resources on these topics. This guide was last updated on February 16, 2024 and some of the information may have since changed. The information in this guide is not legal advice and should not be relied on as legal advice. If you have a legal issue, you should speak to an attorney.
This guide includes links to third party websites for access to information and resources. We do not control these websites. We have not reviewed all the content that appears on these websites, and are not responsible for the legality, accuracy, or appropriateness of their content. Content on these websites may change at any time, including after we decide to share their links on this site. For legal advice about your specific situation, you should consult with a qualified attorney.
Introduction
Mental health professionals in individual private practices have responsibilities that continue beyond their incapacitation or death, including the preservation and release of client records. Advance planning ensures these responsibilities are satisfied and makes things easier for loved ones and colleagues. A professional will is a great starting point.
Legal and Ethical Obligations
New York Rules of the Board of Regents
The New York Rules of the Board of Regents, Part 29 deals with unprofessional conduct. Under Part 29, unprofessional conduct includes:
Maintaining Records: “failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient. Unless otherwise provided by law, all patient records must be retained for at least six years. Obstetrical records and records of minor patients must be retained for at least six years, and until one year after the minor patient reaches the age of 21 years,” 29.2(a)(3);
Releasing Records to Clients: “failing to make available to a patient or client, upon request, copies of documents in the possession or under the control of the licensee which have been prepared for and paid for by the patient or client,” 29.1(b)(7);
Ensuring Privacy and Confidentiality: “revealing of personally identifiable facts, data or information obtained in a professional capacity without the prior consent of the patient or client, except as authorized or required by law,” 29.1(b)(8);
Continuity of Care: “abandoning or neglecting a patient or client under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care, or abandoning a professional employment by a group practice, hospital, clinic or other health care facility, without reasonable notice and under circumstances which seriously impair the delivery of professional care to patients or clients,” 29.2(a)(1).
The Office of Professions clarifies that: “The abrupt cessation of services by psychologists who unexpectedly become ill, disabled, or die normally would not be considered abandonment as it is defined, but appropriate planning for such events early in the professional relationship can ensure that patient/clients receive the essential services they need when such emergencies do occur.”
HIPAA
The responsibilities of HIPAA do not end with the incapacitation or death of the covered entity.
HIPAA requires ”that covered entities apply appropriate administrative, technical, and physical safeguards to protect the privacy of medical records and other protected health information (PHI) for whatever period such information is maintained by a covered entity, including through disposal.”
Ethics Codes
The National Association of Social Workers’, “Code of Ethics – Social Workers’ Ethical Responsibilities to Client,” states that:
“Social workers should protect the confidentiality of clients’ written and electronic records and other sensitive information. Social workers should take reasonable steps to ensure that clients’ records are stored in a secure location and that clients’ records are not available to others who are not authorized to have access,” 1.07(l);
“Social workers should take reasonable precautions to protect client confidentiality in the event of the social worker’s termination of practice, incapacitation, or death,” 1.07(t);
“Social workers should make reasonable efforts to ensure continuity of services in the event that services are interrupted by factors such as unavailability, disruptions in electronic communication, relocation, illness, mental or physical ability, or death,” 1.15.
Professional Wills
A professional will is a document that provides instructions for a mental health professional’s loved ones and colleagues in case they become incapacitated or die.
A professional will should:
Provide information about the mental health professional and the professional’s practice;
Appoint another licensed mental health professional as professional executor, and grant the professional executor the authority to manage important tasks in the professional’s absence; for instance, notifying clients of the professional’s incapacitation or death;
Provide the professional executor with instructions on how to carry out required activities; for instance, the storage, release and destruction of client records;
Even though it’s called a professional “will,” the professional should also have a Last Will and Testament and appoint an executor for the professional’s estate. It is likely appropriate to refer to the professional will in the Last Will and Testament.
Best Practices
In addition to executing a professional will, there are other measures a professional can take to prepare for management of their practice in case of incapacitation or death.
Contact the providers of your case management program, email, phone, and other services to determine their procedures and recommendations in case of your incapacitation or death. Find out how you can ensure that your personal and professional executor will have access to your systems and records.
In 2016, New York passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) to allow for access to the online accounts of individuals who are incapacitated or pass away. Individuals should give explicit permission to their executors to access their accounts in advance directives like a will and power of attorney authorization.
Give copies of your professional will to your personal executor or closest family member or friend, your professional executor(s), and your malpractice insurance carrier.
Maintain detailed instructions for your professional executor with contact information for important people, your user names and passwords, list and locations of devices and files, where to find client records, instructions for the maintenance, release and destruction of client records, and more. Regularly review and update these instructions. Keep them in a secure location, that is accessible to your professional executor, if you include private information like passwords.
Run through your practice, systems and procedures with your professional executor so they better understand how things work. Providing access to clear written office procedures is ideal.
Connect your personal and professional executors in advance.
Make readily accessible notes about your clients’ notification preferences to ensure their privacy is protected.
Talk to clients about what will happen if something happens to you. Alert them verbally and in writing about the procedures you establish in case of such an emergency.
Draft template messages (letters, emails, outgoing voicemail messages, etc.) for clients notifying them of your plans for their continued care and access to their records.
Ensure that former clients know who to contact for copies of their records.
Ensure that you appropriate liability insurance is maintained.
Make plans for efficient maintenance and closure of your practice.
Consider how expenses will be paid upon your incapacitation or death. Ensure that your executors have access to necessary funds.
Other Resources
San Diego Psychological Association, “Guidelines for Preparing Your Professional Will.”
Consult an Experienced Attorney
An attorney experienced in the issues impacting mental health professionals help you determine your practice’s specific responsibilities and advise you about how to efficiently meet them. You can learn more about the services Pepitone Law provides to mental health professionals on our Home and Mental Health Professionals pages.
