Alain Montgomery, JD
Staff Attorney 
The Therapist
Originally published in the May/June 2021 issue of The Therapist
Reviewed and Updated February 2024

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It’s natural for marriage and family therapists to feel responsibility for their clients and a sense of stewardship over the information the clients have shared during the course of treatment. Mental health care practitioners have a responsibility to make sure certain duties to their clients are not disrupted in the event of their incapacity or death. This article discusses how a professional will ensures that the health and safety of clients and the confidentiality of their treatment information remains protected in the event of their therapist’s incapacity or death.

Are LMFTs Ethically and/or Legally Required to Have a Professional Will?Z Although a professional will is not a legal requirement, the CAMFT Code of Ethics encourages therapists to have a plan that manages the expected and the unexpected disruptions of treatment that could arise from their incapacity or death. The CAMFT Code of Ethics states the following:

1.3 TREATMENT DISRUPTION:
Marriage and family therapists are aware of their professional and clinical responsibilities to provide consistent care to clients/patients and to maintain practices and procedures that are intended to provide 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.

1.4 TERMINATION:
Marriage and family therapists use sound clinical judgment when terminating therapeutic relationships. Reasons for termination may include, but are not limited to: the client/patient is not benefiting from treatment, the continuation of treatment is not clinically appropriate, the therapist is unable to provide treatment because of incapacity or extended absence, or there is an unresolvable ethical conflict or issue. (See also sections 3.8 Client/Patient Benefit and 5.11 Scope of Competence.)

In addition to the the ethical considerations, California law mandates that a marriage and family therapist retain a client’s health record for a minimum of seven (7) years from the date therapy is terminated. If the client is a minor, the health record must be retained for a minimum of seven (7) years from the date the client reaches eighteen (18) years of age.1 Thus, the client has an expectation that their health record will be kept for such a time period in the event they desire a copy or a summary. This can be addressed in a therapist’s professional will.

What Is the Purpose of a Professional Will?
A professional will details the therapist’s wishes and sets forth specific directives for winding up their practice in the event of incapacity or death. A comprehensive and well-drafted professional will is clinically important because it provides a clear plan for how the therapist’s clients will transition to new providers, thereby minimizing disruption in treatment. A professional will also ensures that the disposition of the practice is executed in compliance with all applicable legal and ethical standards. Thus, having a professional will protects against the risk that confidential client information will be compromised and affords the therapist’s colleagues, staff, and family peace of mind by providing specific instructions for how to manage certain aspects of the practice in the event of unforeseen circumstances.

A personal will appoints an executor to gather all the deceased individual’s property; pay any debts, expenses, and taxes; and distribute what is left to the designated beneficiaries. It’s important to note that a professional will is not a substitute for a personal will. However, similar to a personal will, a professional will confers authority on a professional executor to act on the incapacitated or deceased individual’s behalf and carry out a set of instructions. For example, a marriage and family therapist’s professional will can provide instructions to the professional executor for notifying the therapist’s clients, managing client records, and providing clients with referrals for their continued treatment in the event of the therapist’s incapacity or death.

What Happens If an LMFT Becomes Incapacitated or Dies Without a Professional Will?
In the event that a therapist becomes incapacitated or dies without a professional will, the legal representative of their personal estate (i.e., the individual named as the executor and/or trustee) may become responsible for taking possession of, managing, and/or distributing the therapist’s real and/or personal property. Arguably, this would include the clinical records in the therapist’s possession at the time of their death. If upon death, the therapist does not have a personal estate plan for the distribution of their property outlined in a will and/or a trust, assets will be distributed to surviving family members such as a spouse, children, parents, or siblings.2 It’s important to note that the therapist does not need to have an existing personal will to create a professional will—one is not dependent on the other.

What Is Included in a Professional Will?
In thinking about what the professional will must accomplish, it’s important to remember that it requires the therapist to do two things. First, the therapist needs to provide their professional executor with all relevant and necessary information that allows them to notify clients, facilitate continuity of care, manage client records, and wind up any other aspects of the business and practice. Second, the therapist needs to inform clients that they’ve instituted a plan for the continuity of the clients’ treatment and the handling of their mental health care records in the event of the therapist’s incapacity or death. This can be accomplished through the Informed Consent Form or Disclosure Statement provided to clients at the outset of treatment. The form/statement can explain the professional will authorizing a professional executor to coordinate care for the client in the event of the therapist’s incapacity or death. The form/statement can expressly state that the professional executor will have access to the information necessary for facilitating continuity of care. Such information may include, but is not limited to, the client’s contact information, treatment plan, and diagnosis, if applicable, and/or a summary of treatment. For more information about the topic of informed consent, review the CAMFT article "Revisiting Informed Consent" by Michael Griffin.

There is no uniform template or one-size-fits-all format for a professional will, which can be as simple or complex, as detailed or sparse as the circumstances require. The therapist’s client population, the size of the therapist’s practice, the therapist’s area(s) of specialization, and the therapy setting will determine the professional will’s directives. Following are some likely components.

Appointment of an Executor With Instructions for the Executor to Follow
The role of a professional executor is to carry out the instructions detailed in a professional will. Therapists may deem it prudent to designate an MFT or other licensed behavioral health care provider who is familiar with the legal and ethical duties regarding clinical treatment, confidentiality, continuity of care, and recordkeeping to serve as executor. It may also be beneficial for the therapist to appoint someone familiar with their theoretical orientation and client population. This may not be possible, but a professional executor who is not an LMFT or other licensed behavioral health care provider may not be familiar with the therapist’s duties as prescribed by California law and corresponding ethical standards.

In addition to appointing a professional executor, a professional will sets forth specific instructions for the professional executor to follow. Relevant instructions may include, but are not limited to:

• Notifying current clients, employees, and/or supervisees of the therapist’s death or incapacity by a specific means or by any means deemed appropriate;
• Facilitating continuity of care for the therapist’s clients and providing referrals of mental health care professionals who are an appropriate fit for each client’s clinical needs;
• Strong records in accordance with the relevant ethical standards and state and/or federal regulations that pertain to recordkeeping (if this is impracticable, it’s important to know the statute of limitations for malpractice claims to protect the estate);³
• Destroying outdated confidential client records properly;
• Releasing records pursuant to client and third-party requests in compliance with all applicable laws; and
• Seeking reimbursement by a specific means for services rendered.

Identification of Individual(s) Who Possess a Copy of the Professional Will
It’s important to identify the individuals who possess a copy of the therapist’s professional will and to indicate where it’s located. For example, the professional will can identify the names, phone numbers, and email addresses of any individuals provided with a copy, such as the professional executor, a family member, a friend, a colleague, and/or the attorney who drafted it.

A List of Clients’ Contact Information and the Location of Client Records and Administrative and Financial Materials
The professional executor will need a list of the therapist’s active and former clients, the location of client records, and information on how to access those records in hard copy and/or electronic form. Additionally, the professional will can provide the names and contact information of any individuals able to assist the professional executor in locating and accessing client records and other relevant documents, such as billing and financial records, appointment calendars, and the therapist’s professional liability policy.

Password and Access Code Information
Therapists use a variety of instruments to communicate with clients, insurance companies, and supervisees/employees. The professional executor may need access to the therapist’s computer to retrieve a client’s electronic health record as well as access to the therapist’s work phone, voicemail, website, and social media accounts to make relevant notifications and changes.

Other Pertinent Instructions Regarding Communication With the Deceased Therapist’s Family Members or Legal Representative
The professional will can dictate how the professional executor contacts and shares information with the legal representative of the therapist’s personal estate. For example, it may instruct the professional executor to contact the legal representative of the personal estate or a specific family member to determine the disposition of outstanding funds, debts, or routine expenses. Also, the professional will may allow the professional executor to seek reimbursement for their services in winding up the therapist’s practice from the executor of the personal estate.

What Is Required to Make a Professional Will Valid Under California Law?
Under California law, there are certain formalities that must be satisfied for a will to be valid. A professional will is not a personal will, nor does it replace one. However, the formalities that apply to a personal will may also apply to a professional will. Under the California Probate Code, the following requirements must be met to execute a will:

• The testator (the individual who makes the will) must be mentally competent by being of sound mind and be capable of making decisions and reasoning;⁴ and
• The will must be signed and dated by the testator in front of two witnesses who sign the will at the same time, either when they witness the testator sign the will or when they witness the testator acknowledging the therapist’s signature on the will.⁵

In California, notarization is not required to make a will legal. In California, an original will can be amended as long as the new document complies with the same formalities required for the original will.⁶ So, it is advisable to review the professional will periodically and make amendments or changes.

Conclusion
There are endless ways to craft a professional will that achieves the goals unique to any therapist’s practice in the event of their incapacity or death. Hence, there is not one specific or generally applicable format for a professional will. CAMFT recommends that therapists obtain legal counsel to ensure that the terms of their professional will are in accordance with state law, comply with all applicable formalities, suit the unique needs of their practice, wind up the practice effectively, and are consistent with their personal estate plan. Having a professional will can offer the therapist, as well as their colleagues, clients, and family members, freedom from unnecessary stress in the event the unforeseeable happens. For additional resources and information about professional wills, please visit Will Writing and Office Preparedness in the Members Only section of the CAMFT website.

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Alain Montgomery, JD, is a staff attorney at CAMFT. Alain is available to answer member calls regarding letah, ethical, and licensure issues.

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Endnotes

¹ Cal. Bus. & Prof. Code § 4980.49 (a).
² Cal. Prob. Code § 6450 - § 6455.
³ Cal. Civ. Code § 340.
⁴ Cal. Prob. Code § 6100.5.
⁵ Cal. Prob. Code § 6110.
⁶ Cal. Prob. Code § 6120.

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This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.