Planning for the Death or Incapacity of a Psychotherapist: Limiting Exposure to the Decedent’s Estate

Psychotherapists have a legal and ethical duty to plan for their incompetence or death. Lack of proper planning can easily lead to a negligence claim against the estate.

Imagine the following scenario:

David’s mother, Marian, was a licensed family therapist with an active practice who died suddenly without an estate plan. David represented himself and files a petition for probate shortly after Marian’s death, and 8 weeks later he was appointed administrator. During the period before appointment, David did nothing with the practice other than put a sign on the door stating that the office is permanently closed. He didn’t contact patients, gather files, or make referrals to other therapists for continued treatment. When David finally consulted an attorney, he learned that the estate was vulnerable to a claim of professional negligence because Marian did not have a “professional will” creating a written plan for the transition of patients and clinical files upon her death or incompetence. The estate was potentially liable if one of Marian’s patients was injured through self-harm, or if a third party was injured as a result of a violent act by the patient. All David could do was attempt to mitigate the harm by immediately contacting all of the patients about his mother’s death, and transferring the files to another licensed therapist for continued and uninterrupted treatment.

The duties owed by a licensed therapist are established by the California Association of Marriage and Family Therapists Code of Ethics, Rule 1.3 as follows:

TREATMENT DISRUPTION: Marriage and family therapists are aware of their professional and clinical responsibilities to provide consistent care to patents and maintain practices and procedures that assure undisrupted care. Such practices and procedures may include, but are not limited to, providing contact information and specified procedures in case of emergency or therapist absence, conducting appropriate terminations, and providing for a professional will.

If one of Marian’s patients had come to the office for his regularly scheduled appointment, he or she would have seen the sign indicating that the office was “permanently closed.” The patient would not know that Marian had died, and could perceive abandonment. That could trigger terrible consequences, like suicide or harm of others. That outcome could be a foreseeable result of the therapist’s breach of duty to provide for a professional will, and could expose the estate to a multi-million dollar lawsuit.

But what about patient confidentiality? To protect the estate as administrator, David’s instinct may be to review his mother’s files to determine who might be potentially violent or suicidal, and triage immediate referrals for those individuals. But David is not a therapist; he is not in a position competently to evaluate patient records, and this is clearly beyond the scope of his role as administrator. Fortunately, HIPPA permits David to disclose private patient information to a therapist for the purposes of continued treatment upon the death of incompetence of the primary therapist (California Civil Code, section 56.5(j)). David should simply refer all of the files to a therapist for immediate evaluation.

There are concise rules on how patient records must be maintained by therapists. As of January 1, 2015, all patient records by private practice therapists in California must be maintained for at least seven years after termination of treatment, or seven years after a minor patient has reached the age of majority (Health and Safety Code Section 123110). The duty does not terminate upon the death of the therapist; the estate administrator must arrange for compliance.

It is incumbent upon the estate planning attorney to assist clients who are psychotherapists to develop a “professional will” as part of their overall estate plan. This document should not only include parameters for continued patient care including the name of a clinical “custodian” of the decedent’s practice, but also guidelines for the handling of files that meet HIPPA guidelines. Finally, the professional will should include a clear and concise road map for the trustee or administrator of the estate regarding the issues presented upon the death of a psychotherapist. Time is of the essence, and the trustee or administrator must ensure that there is a seamless and immediate transfer of the decedent’s practice to another licensed therapist.

Consult an experienced professional who understands these rules to prepare an appropriate professional will for a psychotherapist.

Jack Osborn

Jack B. Osborn is a Partner with Brown White & Osborn LLP and his practice focuses on probate. He is currently the President of the San Bernardino County Bar Association as well as the Chair-Elect of the Conference of California Bar Associations. Mr. Osborn is frequently called as an expert before the California legislature on proposed probate legislation.
Jack Osborn