Trusts and Estates

Ca. Trs. & Estates Quarterly 2015, Volume 21, Issue 1

WHEN A PSYCHOTHERAPIST DIES OR BECOMES INCOMPETENT, TIME IS OF THE ESSENCE AND PATIENT PRIVACY IS PARAMOUNT

By Gadi Zohar, Esq.*

I. INTRODUCTION

Many psychotherapists in California operate as sole practitioners, not in the group practices that are more common among other healthcare providers. Therefore, when a private practice psychotherapist dies or becomes incompetent, two unique issues come to the forefront, both of which are of interest to trusts and estates practitioners whose practices include counseling these healthcare providers.1 First, as a matter of relative urgency, the therapist’s patients should be contacted expeditiously. Second, therapists are required to maintain clinical records2 for a period of time, and in accordance with laws intended to protect patient privacy. Thus, when planning for the potential incompetence or death of a psychotherapist, the trusts and estates attorney should focus on two issues: (1) immediate access to clinical files and records, and (2) proper handling (and, ultimately, destruction) of clinical files and records.

II. THE CLINICIAN’S LEGAL AND ETHICAL OBLIGATION TO PLAN

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