The death of a practising psychologist has many legal, ethical, clinical and personal implications which may have a profound impact on family, colleagues and clients. This is even more likely if the death is sudden and unexpected. Many psychologists will have a will that outlines how they want their personal matters to be settled following their death, but many will not have considered planning for the end to their professional life. Becoming incapacitated for a prolonged period through serious illness also poses similar challenges for those trying to assist the psychologist. The following Q&As address some of these challenges. This article does not replace the need to seek specific legal and other professional advice.
I’ve heard I should have a practice contingency plan (PCP) for my private practice, but I don’t know what this entails or where to begin. What should I do?
A PCP is a guide that assists the executor of the will, or a nominated person, in the management of practice affairs in the event of a psychologist’s death or incapacitation. Psychologists should get independent legal advice to ensure the PCP is incorporated into their will. It is also a good idea to keep a copy of the PCP separate to your will so it can be easily accessed and activated in the event of you becoming incapacitated.
PCPs should include:
- The appointment of a professional nominee who can conduct, or assist the executor to conduct, the professional and ethical obligations to clients and other professional matters related to the business. Ideally, this would be a psychologist. You should meet with the professional nominee to ensure that they agree to fulfil the PCP arrangements.
- Details of all practice locations, leases, administration information, security arrangements and staffing.
- Location of current and past client records including contact details, passwords and/or keys to storage. Records of files that have been destroyed should also be included. Inactive files should clearly indicate the last date of contact to ensure your professional nominee can arrange for the appropriate storage or disposal where required.
- Instructions for notifying clients. You will also need to determine whether you want the notification to be restricted to current clients only. Sensitive notification of clients is essential. The professional nominee may notify clients by contacting them individually via phone or letter. Inactive clients may be notified by placing a notice in the local paper or through an announcement on the practice voicemail, or practice website. This must be done in a way that respects client confidentiality.
- Details of organisations or persons to be informed such as the professional indemnity insurer, registration board, membership organisations, referring practitioners, lawyer and accountant.
Helpful resources
Who will sort your private practice if you die suddenly? (bit.ly/2TR62ZX)
Practice contingency plan: (bit.ly/3r1aQbg)
Resource finder: Practice contingency planning with checklist (bit.ly/3yJRdqI)
None of my colleagues are interested in being the nominee in my PCP. What should I do?
You may wish to try another AHPRA-registered health professional who understands the ethical demands of psychology work and provide them with instructions about your PCP. Alternatively, you could consider paying a psychologist for this service if colleagues are reluctant to take on unpaid work.
I have a will, but do I need to reference my PCP in that, or is it okay to leave some written instructions attached to the will?
It is advisable to consult your lawyer to ensure that your will reflects your current intentions and that your lawyer has correctly included the PCP in your will. While the PCP should be included in your will, it is also separate to it. Your will covers your personal assets and personal directions, but the PCP only covers your psychology practice. (Note: It is best to use the term ‘practice contingency plan’ and not ‘practice will’ as legal advice we have received is that the term ‘practice will’ could, in some states, mean this document, the PCP, replaces your actual will).
Without the PCP being included in your will, the executor is not bound to follow it. Unless the executor is a health professional, they are not bound by the same legislation and ethics as a psychologist.
A lawyer can advise whether your PCP is likely to serve its purpose, for example, that it does not contain anything that may be potentially problematic to the efficient winding up of your practice or to the duties of your executor in winding up your estate. A lawyer can also advise on the most appropriate way for you to document how your professional nominee is to be compensated for assisting your executor should your PCP need to be activated.
Your will, which includes the PCP, should be stored safely and your executor informed on where it is held. As stated previously, it is advisable to also have a copy of your PCP kept where it can be accessed in the event of you becoming incapacitated and unable to continue in your practice for any length of time.
What role will the executor of my will have in implementing my contingency plan? What should I instruct them?
If you have a PCP included in your will, the executor of your will can contact the nominee and arrange for them to put this plan into action. If payment has been agreed to for the nominee’s work, then the executor can also arrange for this to be paid from your estate.
In the absence of a PCP, your executor will be responsible for the winding up of your practice and all the steps outlined above, such as notifying clients, storing files etc., If the executor is someone such as a family member or friend, this could be quite onerous on someone who is in grief and who is also having to manage the legal requirements of implementing the will. Hence, it is advisable to have a nominee who can take over that role and who understands the ethical and clinical decision-making of psychology work.
Should I include payment in my PCP?
Given the considerable time, and the professional knowledge and responsibility, required of the nominee it is appropriate that they are paid for this service. This could be determined as a one-off fee from your estate if you have died, or an ongoing fee for service if you are incapacitated and the nominee will be providing a service over some time, such as by storing and responding to enquiries about access to files. It would be advisable to speak to the lawyer who has assisted you in writing your will about how payment could be set up from your estate, or whoever has power of attorney for you as to making such payments if you are incapacitated.
What if I were to become incapacitated? What arrangements should I make in relation to a PCP?
The broad principles addressed in the above questions equally apply in the situation of you needing to leave your practice for some time, or permanently, due to incapacitation. For example, have a nominee appointed and clear, written instructions about how clients, and others, are to be notified, files managed etc. A copy of the PCP could be held by the nominee and close family members should also know who the nominee is and how to contact them in the event of your incapacitation. Payment may also need to be considered for the nominee’s work.
If I were to die suddenly, would it be possible for another person to take immediate steps to notify clients and refer on if needed? What should I do to enable this to happen?
If you were to die suddenly, the executor of the will should notify the nominee to put in place the PCP. As covered earlier, your PCP should include instructions on immediate steps to take such as notifying clients currently on your books and discussing with them options such as arranging for other psychologists to possibly take over their care, and their file management. Instructions will need to be detailed enough to include information such as where diaries can be found, passwords for computer access, where keys are kept for locked filing cabinets etc., The nominee should also communicate with referrers and others, such as third-party funders, to notify them of your death, to cease registration with them etc.
Checklist for developing a practice contingency plan
Use this checklist to ensure you have covered the key aspects of a PCP.
1. Include the name of your professional nominee(s) and their contact details. In deciding on an appropriate nominee consider their knowledge of the ethical and legal issues such as storage of psychology records, their ability to sensitively communicate with clients and willingness to undertake the task.
2. Outline details of the specific agreement made with the professional nominee(s). For example, whether financial reimbursement will occur or whether activities are pro bono.
3. Detail how your nominee should access the practice (e.g., who has keys). The keys may be with an administrative person, family member, the nominee, the executor or, in larger practices, a practice owner or manager, or another colleague at the practice.
4. Explain how access to security passwords can be obtained, for example, where they are stored. This includes computer passwords and passwords required for building access.
5. Outline a process for accessing your current client list and scheduled appointments, whether these are in paper diaries or electronic ones. For example, include details of the location of your diary, electronic calendar, or instructions on accessing a practice software program.
6. Provide instructions for how you would like clients to be contacted – whether by phone, by mail, by email, or a notice in the newspaper. You may prefer current clients be contacted in a more personalised way, such as by phone. Sensitivity to confidentiality issues also needs to be considered.
7. Include a list of organisations or persons to be informed, for example, Australian Health Practitioner Regulation Agency (AHPRA), and/or the Psychology Board of Australia (PsyBA), your professional indemnity insurer, membership organisations such as the APS, referring practitioners, accountant, lawyer.
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