Avoiding Malpractice Tips

The Professional Will (Part 2)

Nov 8, 2016 | Avoiding Malpractice Tips

The Professional Will – Part 2

In Part 1 of this two-part series we discussed the purpose of a Professional Will and listed the five major categories to consider when creating a Professional Will. It makes sense to proactively prepare for a potential sudden transition of your practice and orderly termination of your practice. The death or even the incapacitation of a practitioner requires an immediate set of actions.

The practitioner’s survivors, spouses, partners, and colleagues have the responsibility to notify patients and to settle legal matters. A Professional Will assigns authority and directions to the Executor, most probably a practitioner. While developing a Professional Will, the practitioner needs to consult with an attorney who is knowledgeable about the profession and the law of wills and estates. Laws differ among states and change over time, which is another consideration.

The five major categories of a Profession Will to consider are:

  1. Executor
  2. The “Keys” to your office
  3. Professional Liability Coverage
  4. Legal Elements
  5. Defining Support Elements

Part 1 of this series discussed the Executor and “Keys”. Again, the Executor should be a trusted healthcare professional. The “Keys” to your practice are the client records and include the therapy documentation, client lists and related details, billing, financials, and appointment book with referral information.

Professional Liability and General Liability Coverage

  • Leave instructions regarding your insurance carriers to be notified including your Professional Liability Malpractice insurance carrier and your General Liability insurance carrier.
  • Make the policy contract, certificates of insurance, and declaration pages readily available so the Executor can verify that coverage is still in force. Then arrange a prorated refund if permitted under the insurance contract(s).
  • If in the event the General Liability policy expires very shortly after the death of the insured, perhaps the carrier will grant a rider extension for a short period of time while on the premises until the office is vacated.
  • Also, check with the landlord of the office to verify remaining use of the office and office lease termination and possible sub-leasing of the office.
  • When the Professional Liability policy is terminated, if it was a claims-made policy, the executor may consider buying an ERP (Extended Reporting Period “tail” endorsement cover) to insure the Estate of the practitioner against future claims.
  • Even though therapy ceased, perils and risks remain under the General Liability coverage while the office is being shut down. Also, malpractice risks remain.
  • Finally, the Executor must verify with the insurance carriers that no incidents have been reported and the status of any and all claims, if any.

Legal Elements

  • Discuss with your attorney the aspects of creating both a Professional Will and a Personal Will. Your attorney must have practice experience in Wills and Estates, especially professional practice law. The facts and circumstances are significantly different, and should, therefore, be addressed with two legal documents.
  • Make sure that you and your attorney check with the state for clarification on both matters. Wills and Estates laws governing practice and closing a practice vary across states and do change.
  • Included in this article is a sample template of a Professional Will for example and informational purposes only. It is not intended to provide legal advice and is not a substitute for obtaining legal advice from you attorney.

Defining Support Elements

  • Make sure that you stipulate compensation and how it is to be paid regarding the people involved, specifically the Executor and your attorney.
  • Also clearly state the performance of duties expected from the people and entities involved in the discharge of your Professional Will.

Download a PDF of an Example of a Professional Will

Published November 2016

Avoiding Malpractice Tips

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