For mental health providers, advance planning is more than just a prudent business strategy: it is an ethical obligation.
A professional will provides a comprehensive way for mental health providers, from psychologists to licensed clinical social workers and licensed professional counselors, to plan for unforeseen circumstances resulting in a provider’s incapacity or death. In short, the will delineates the steps a practitioner’s colleagues – or other designated parties – will take to ensure the practice provides continuous, seamless client service even after an individual provider is unable to do so.
A professional will is distinct from a personal will. Typically, a personal will is a legal document that sets forth a person’s wishes regarding the distribution of property and the care of any minor children. By failing to create a plan for distributing assets after death, the testator places his estate in the hands of the Commonwealth’s intestacy scheme. On the other hand, a professional will is a document used by healthcare providers, particularly mental health providers, to outline how their practices should be handled in the event of unexpected closure or unavailability. While the failure to execute a personal will arguably detriments only the testator himself, a professional will impacts more than just the individual provider or the practice: because it impacts clients and patients by providing a plan for continued care, failure to prepare a professional will could leave patients without a clear healthcare alternative.
In many states, including Virginia, a healthcare practitioner is obliged to provide continuity of care and services to clients and patients. To meet this ethical obligation, many providers create and maintain a professional will. This helps ensure that if something happens to the provider a patient routinely sees, another provider can provide a smooth transition to continued care. A professional will can help a provider meet his ethical obligation in this regard.
The Commonwealth’s Requirement to Provide Continuity of Care
The aspirational standards set by the American Psychological Association include a set of model ethical rules which many states have adopted or embedded within their own statutes.
The APA Ethical Principles of Psychologists and Code of Conduct (Ethics Code) requires mental health providers, including psychologists, licensed clinical social workers, and licensed professional counselors (but not psychiatrists, who are MDs and thus operate under a different structure), are charged with a duty to continue to provide treatment and not to abandon their clients: even in the event of death or incapacity.
The Ethics Code language reads as follows:
Unless otherwise covered by a 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, or by the client’s/patient’s relocation or financial limitations.
Ethics Code Section 6.02(c) further instructs:
Psychologists make plans in advance to facilitate the appropriate transfer and to protect the confidentiality of records and data in the event of psychologists’ withdrawal from positions or practice.
Many states have adopted the APA Ethics Code or similar ethical standards in laws or regulations governing the professional conduct of psychologists. In Virginia, guidance for practitioners can be found in the Commonwealth’s Regulations Governing the Practice of Psychology. Specifically, Section 18VAC125-20-150(B)(10) requires practitioners to make “reasonable efforts to provide for continuity of care when services must be interrupted or terminated.” Subsection 13 requires them to keep “pertinent, confidential records for at least five years after termination of services to any customer.”
customer.”
Drafting A Professional Will
As noted above, personal will and professional will are two different documents and plans. A professional will does not address the distribution of a single person’s assets after death, but rather, lends guidance to other practitioners regarding how to care for and service the provider’s clients, and how to handle their confidential records.
In creating a professional will, a provider will usually designate at least one and perhaps two executors, often other mental health care professionals. If the provider is a solo practitioner, the executor may be a trusted colleague in the community or industry. This person will act on the provider’s behalf in critical roles, including:
● Making decisions about storing, releasing, and/or disposing of patient records;
● Carrying out activities necessary to properly administer the professional will; and
● Helping to ensure continuity of care.
It is important to ensure the executor(s) knows where to find client records and to access the practitioner and practice information necessary to ensure client service remains seamless.
While the APA states that attorney engagement is optional, retaining counsel to assist you is advisable to help you understand the process, the implications, and to help ensure you are taking all necessary steps.
What This Means for Providers
Particularly if you are a sole provider or in a small practice, a professional will can be a vital business document. It can help ensure continuity of care and the smooth transfer of records in the event you become unavailable. A professional will can help you protect your clients and patients should you be rendered unable to serve them. For more information on how to create a professional will, reach out to a healthcare attorney for legal advice tailored to your specific situation.