Updated: May 13, 2019
So here's a real life scenario, you're sitting in session with a client and they turn to you and ask "what happens to me if you die? Does someone call me? How would I even know that something happened to you?"
In that moment, as they stare at you with an unsaid dependency on the next few words out of your mouth; what do you say?
Its around this time that my phone rings... "What is a Professional Will?"
Bursting Bubbles in 3... 2... 1
Its not actually a Will (not technically.. not in Texas at least). Sparing a very long conversation about the statutory requirements that make a Will...a Will; it's best just to say 'its not a Will because it doesn't involve your personal estate; ergo, it does not go through the formal court process.'
Still, its important that we refer to it as a Will because it functions like one in both form and spirit.
So what is a Professional Will?
Its best to conceptualize a Professional Will as a really formal (and written) delegation of tasks that are primarily concerned with your clients, their records, and concluding your relationship with them in an ethical (and caring) manner.
Like a traditional Will; the document assigns someone to function as an Executor; of whose job it will be to: (1) contact your clients; (2) assume custody of your records; (3) arrange for record transfers; (4) help clients find other resources; (5) contact your colleagues; and (6) various other non-financial tasks to close-out the practice.
Unlike a traditional Will; your Executor (or) Administrator isn't concerned with allocating business property, settling debts, or much of anything else that touches the legal side of the practice. Those matters get addressed in accordance with how you formed your practice.
A client asks "can't the Executor of my Personal Will serve as Executor of my Professional Will? Do I even need a Professional Will if they can contact clients?" My response is "could you share client information with that person today under any circumstances?" Typically, that answer is no.
Unlike a traditional Will, the Executor of a Professional Will must be qualified and authorized to view, manage, and dispose of client information. This typically translates to ...are they licensed? Bob the Banker could not serve as your Executor, even though they may be your most trusted friend.
When Does it Become Effective?
Your professional Code of Ethics require an "established plan" be effective in three major situations. Those situations are (1) death; (2) incapacity; or (3) closing of the practice.
Many of the national mental health organizations offer free templates for a Professional Will. However, these templates are not necessarily state specific and it's best to have a qualified Estate Planning Attorney to make sure that your Professional Will does not delegate powers that overreach their legal authority.
Considering the Client
Reality check! No one ever rushes to do estate planning unless (1) someone else dies; or (2) they become responsible for someone else's well-being and safety. When asked about their personal wills, my clients often say "we decided to finally come in to get these done because we have kids now and we want to make sure that they are okay if something happens."
I think its much the same for therapists. You care deeply for your clients and somewhere along the way you realize that planning for your death is actually planning for someone else's life. A Professional Will is an attempt to ensure the well-being of your clients, their peace of mind, and conclude your ethical duty with forethought and compassion.
If you are a mental health professional and aren't sure if a Professional Will is right for you, feel free to give me a call or visit me at The Law Office of John Garland to set up a Free Consult to talk through your specific situation.
I'm happy to help in anyway that I can.
The information above is not legal advice. You should always consult with a qualified attorney in your State before drafting legal documents and (or) making any legal decisions. I have supplied this information ONLY as an educational and conversational guide.