NH Legal Perspective: A will that works for health care providers

This article, written by attorney Madeline Hutchings, was originally published by the NH Union Leader an can be found here.

Avoiding making your estate plan? All right, then just start with the document that may be required by your licensing board. A health care professional is legally required to plan for what happens to patient care in the event of his or her unexpected unavailability — a requirement that can be satisfied through a document called a “professional will.” However, if you think the professional will you signed in 2005 has you covered, then keep reading.

What is a professional will?

A professional will is a document in which you appoint someone to handle the care of your patients, and your practice in general, in the event you are unexpectedly unavailable. It is a vital resource in the case of any health event that makes you unable to manage your affairs, even temporarily. So you can tell your existential fears to stand down — a professional will is not just for after you have died.

Is a professional will required?

In many cases, yes.

Health care professionals are required by law to plan for their unexpected inability to care for their patients. The New Hampshire Board of Psychologists requires all psychologists to abide by the Ethics Code of the American Psychological Association, which requires psychologists to make a “plan for facilitating services” in the event of illness or death. Analogous legal requirements apply to other types of health care practitioners.

For many practitioners, and especially those in private practices, these requirements necessitate a professional will. Unless your workplace already has a well-regulated system for handling unexpected absences, then you are the bottom line.

What goes in a professional will?

Your professional will names a licensed practitioner (and ideally at least one backup) as a “professional executor” (PE), to step in and take care of your patients and your practice if you die or are incapacitated. Think carefully about whom you trust to make referrals for (or personally treat) your patients, manage your records, and otherwise keep your practice afloat in your absence. While a responsible sibling may be a suitable executor of your personal will, your PE should be someone you trust to step into your shoes and helm your professional life — something you know is no easy feat.

Becoming someone’s PE is an honor, but it should not be a surprise! Choose a PE who agrees in advance to undertake the responsibility.

What about the professional will I made when I first opened my practice?

To be effective, your professional will must be current. It should direct your PE to a separate, comprehensive, and frequently updated list of locations and access instructions (e.g., usernames and passwords) for patients’ files, financial records, scheduling systems, telephone and voicemail, email and other online accounts, your professional liability insurance policy, and the like.

To live up to your ethical obligations and protect your patients, do not just pick a PE with an active license and then point him or her to your keyring. Carefully consider the changing nature of practice administration and records storage, and equip your PE to succeed.

How important is it really?

Consider the time and care you invest in patient relationships. Honor the importance of these relationships. Create a professional will, and carry your good work through to the finish.