Does your therapist have a professional will?

Posted on May 15, 2013 by

Therapists are required by their ethical and/or legal standards to have a plan in place in the event they die or become incapacitated (often called a “professional will”).  Unfortunately, many if not most psychotherapists and counselors do not have such a plan in place.  Some do not know that such a requirement even exists.  Others simply haven’t gotten around to doing this, just like many others haven’t gotten around to creating a foundational estate plan.  And yet others simply do not know where to go to create such a plan, because services in this arena are sorely lacking and often inadequate or problematic.

The reasons for this requirement is fairly straightforward.  If a therapist dies or becomes incapacitated, first and foremost, we do not want the therapist’s patients to find out by coming to the therapist’s office for an appointment and finding the therapist mysteriously missing for a period of time.  We want a system in place so that patients will be notified and referred to an appropriate clinician as soon as it is realistically possible to do so.  The other reason has to do with patients’ right to their clinical files and to confidentiality.  Under federal and state laws, clinical files must be kept for a prescribed amount of time so that a patient or other appropriate person might have access to such files even after treatment has ended.  These files must be handled by an appropriate clinician (and not the therapist’s friend or spouse, unless that person happens to be an appropriate licensed clinician) who will safeguard patient confidentiality and destroy the files at the appropriate time.

If you are in therapy, you should ask your therapist if she/he has a professional will.  Gadi Zohar has created specialized terms in his living trusts to fulfill this ethical/legal requirement.  Also, TherapistWill.com is an inexpensive and easy alternative for therapists who are not necessarily inclined toward an entire estate plan.

Below are some of the rules that apply to California therapists.  More information on particular laws and ethical rules can be found at TherapistWill’s facebook page.

Licensed Marriage and Family Therapists: California Association or Marriage and Family Therapists Code of Ethics Rule 1.3

Licensed Clinical Social Workers: National Association of Social Workers Code of Ethics Rule 1.15

Psychologists: American Psychological Association Code of Conduct Rules 3.12 and 10.09; also California Business and Professions Code section 2919

Licensed Professional Clinical Counselors: American Counseling Association Code of Ethics Rule C.2.h.

Note that most of the above requirements are national.  This means your therapist probably must follow the same requirements no matter what state the therapist is in.

 

Posted in Uncategorized | Tagged , , , , , | Leave a comment

Three Ways to Make Life Easier for your Family and Loved Ones

Posted on May 15, 2013 by

Click here to read the April 2013 Newsletter entitled Three Ways to Make Life Easier for your Family and Loved Ones.

Posted in Estate Planning, Living Trust, Probate, Trusts, Wills | Leave a comment

TherapistWill.com Facebook Page

TherapistWill.com is now on facebook.  Psychotherapists, follow us and take part in discussions like this one:

Why is a private practice California Psychologist required to maintain files for seven years after a minor patient reaches the age of majority, when the same Psychologist’s clinical files only have to be maintained for one year after the child reaches age of majority if the Psychologist works in a clinic? And what are private practice LMFTs, LCSWs, LPCCs and Psychiatrists supposed to do?

Compare Cal Business & Professions Code section 2919 to Cal Health & Safety Code section 123145.

Link | Posted on April 30, 2013 by | Leave a comment

The Solution is Near for Therapists’ Often Unmet Obligations!

Posted on April 3, 2013 by

Psychotherapists and psychological counselors in private practice must plan for incapacity or death with considerations others may not think of.  Various laws and ethical codes require that a therapist make a plan for the quick transition of existing clients and for the proper handling of clinical files in the event of the therapist’s death or incapacity.

The problem is that most templates for such plans are created by therapists, as opposed to trusts and estates attorneys!

Such documents are often called “professional wills” or some variation thereof.  As the name suggests, these documents are more like wills or trusts.  Only a trusts and estates attorney would know what to look for when creating such a document.  Such documents created by therapists often miss important issues that a trusts and estates attorney would know to look for.  For example, many such documents refer to an agent under a durable power of attorney.  However, if the principal is dead, so is the durable power of attorney.  Another common mistake in such documents is that they do not plan for various contingencies that a trusts and estates attorney is trained to consider.

While the best solution for this problem would be having a qualified and informed estate planning attorney draft a living trust or will with appropriate terms, many therapists do not want or feel they need to pay for such a custom document.

Soon there will be a service called TherapistWill.com which will allow therapists to easily create a professional will for less than the typical fee for one psychotherapy session!  And the template for the TherapistWill(TM) has been reviewed by attorneys.

TherapistWill.com is the brainchild of Gadi Zohar, Esq., LMFT — a trusts and estates attorney who is also a Licensed Marriage and Family Therapist (he now practices exclusively as an attorney).  He has taken what has otherwise been an expensive or cumbersome process and turned it into a simple, affordable 3-step solution.  All one does is create a free user account, answer a series of questions, and after reviewing answers the therapist will be able to print out a personalized TherapistWill(TM).  Therapists will even have 30 days after printing the document to return to their account and make corrections.

The final document includes explanations of each part of the document, guidelines for the implementation of the TherapistWill, and therapists will even have the opportunity to add a self-created addendum for information that is important to the therapist, but is not included in the standard template.

Posted in Uncategorized | Tagged , | Leave a comment

Forced to Sell the Family Residence – based on a true story

Posted on March 4, 2013 by

The following account is based on a client of mine.  Names and non-substantive circumstances have been changed to protect the client’s privacy.

John and Betsy married in 1983.  Betsy owned a house before the marriage and John moved in with Betsy after the marriage. Betsy had one child from a previous marriage, named Elizabeth.  In  1985, John and Betsy had a second child together, named William.   While there were no unusual problems, Elizabeth has never warmed up to John.

Tragically, Betsy was killed in a car accident last year. She did not have an estate plan. The family residence was the only substantial asset John and Betsy owned. The laws of intestacy require that John and Betsy’s community property go to John and the separate property be divided by John, William and Elizabeth. Elizabeth wanted to take her portion of the property as cash. Neither John nor William had the money to buy Elizabeth out of her portion of the family residence and John’s employment was not sufficient to qualify for a large enough mortgage on the residence.

With no viable solution available, John had no option other than to sell the residence and give Elizabeth and William their respective portions of the proceeds.  All of this could have been avoided if John and Betsy had created a foundational estate plan, including a living trust.

Posted in Estate Planning, Living Trust, Probate, Trusts | Leave a comment

Why Some Lawyers want You to do Your Own Estate Planning

Posted on February 13, 2013 by

Estate planning is much more precise and involved than first meets the eye.  But for some reason many people who are not steeped in the world of estate planning think that it is straightforward and simple.  A host of do-it-yourself guides exist that allow you to do your own estate planning, and after all, you just want to say who should get your property.  What could be so complicated about that, you say?

When a lay person or a “dabbling” lawyer drafts estate planning documents, the person risks the unintended complications I have seen time and again.  Here is one of many examples:

What the person did: A man created his own living trust for him and his wife.  He wanted the couple’s two sons to each share in the couple’s lifetime savings of about $600,000.  He created a trust that split in half at the first death of him or his wife.  Half of the estate would be in an irrevocable trust and the other half would be in a revocable trust for the survivor.  Then Son A would be the beneficiary of the survivor’s trust and Son B would be the beneficiary of the irrevocable trust.

What’s wrong with that?  The man’s wife died and the irrevocable trust now contains half of the couple’s property.  First, a knowledgeable practitioner would never have forced the splitting of the trusts, because the irrevocable trust must pay separate income taxes on income in the trust.  Second, the man must now spend down most or even all of his half of the estate before he can touch the money in the irrevocable trust.  This means that Son A will receive little or no money and Son B will receive all or most of the estate at the man’s death.

The solution is the reason some attorneys want you to do your own estate planning.  Because the wife is now dead, the only way to modify the trust is through the courts.  This type of modification is technical and a lawyer will need to draft the proper petitions, give the proper notice, and appear in court in order to modify the trust to reflect the real desire of the couple and to relieve the issue of the irrevocable trust having to file tax returns.

This will cost many thousands of dollars more than a quality estate plan by a trusts and estates attorney.  Therefore, the attorney will make a lot more from the person who did her or his own estate planning than the attorney would have by creating a quality estate plan for the person.

Examples like the one above are plentiful and unfortunate.  And the person who did his own estate planning was a smart man with an advanced degree, so intelligence has nothing to do with such things.  A trusts and estates attorney is steeped in the world of estate planning, and unless you too are steeped in that world, you are gambling with your loved ones’ inheritance every time you take it upon yourself to do your own estate planning.  Your plan might work out fine and you will have saved two three or even four thousand dollars.  But if your plan does not work out fine, the cost will be several multiples of those amounts.  Having to resort to a court for resolution of such problems not only costs a lot of money, but it takes a lot of time and the outcome is never certain until the judge hands down a court order.  If you care enough to create an estate plan, it is worth your while to invest a relatively small amount of money now so that your loved ones do not have to pay with money and stress later.

Posted in Estate Planning | Leave a comment

Advance Health Care Directives

Posted on February 1, 2013 by

There is essentially no time too early for an adult to create an Advance Health Care Directive.  The AHCD is a document that gives a person the power to make medical decisions for you in the event you become unable to express your health care decisions.  Click here to read more about Advance Health Care Directives.

Posted in Uncategorized | Leave a comment