Podcast Episode 24: How Will You Write Your Private Practice Will?

Enlightened Practice Podcast

Dr. Ken Braslow invites Dr. Amy Berlin to discuss practice wills, a legal document that sets out the wishes of the private practice owner in relation to their property; a good idea for protecting patients and colleagues. Let’s learn more about the ethics of planning this sooner than later in this valuable new episode of the Enlightened Practice Podcast.

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Transcript of the podcast

Ken: Okay. Welcome back to the podcast today, very happy to have Dr. Amy Berlin on the podcast with us. Welcome, Amy.

Dr. Berlin: Thank you. Good to be here. 

Ken: Dr. Berlin is a psychiatrist and private practice in the Bay Area in California. And today we’re going to be talking about practice wills. And honestly, I had not heard of this until you brought it up. And then I thought, oh, my God, how is it that I’ve never heard of this? So, today I want to learn from you about everything there is to be doing and thinking about with practice wills.  So, hi! Welcome back. And yeah, so where do you even begin? What is a practice will?

Dr. Berlin: I think the right way to think about a practice will is it’s a document that enables anybody who needed to step in and take over managing your practice for you. Were you to suddenly become disabled or to die unexpectedly. It has all the information that somebody would need to do that, where your keys are, how to log in to your EHR, how to find your schedule, how to change your voicemail. It’s the nuts and bolts of how you how you operate that especially if you’re a solo practitioner and don’t have staff that knows these things, someone else could step in on your behalf and take over the operation and the shutting down of your practice ultimately.

Ken: Wow. So when I think of a will, I think of, I leave the following assets to so-and-so. But this is much more in the nitty-gritty of it. Do you have passwords in there?

Dr. Berlin: So, just on that point, it’s a funny thing because when I drew my document up and I showed it to my estate attorney as part of work she was doing for me in other areas of my life. She said, I really don’t like the use of the word will for this and I think it has to do with that. So, she actually advised me to call my document “practice closure instructions.” So that’s what my document is officially titled. And the people, the colleagues that I name in it who would be doing the practice closure, the practice closure assistants. 

If you google private practice will and you see some samples online, you’ll see language of private practice will and executors and it is kind of an executor function. It’s basically naming the person who would execute on the closing down of your practice. But just based on your comment, you reminded me of those instructions that I got. But to answer your question, I don’t have passwords in there for a few things. One, is I use Luminello. And in Luminello, I can name a private practice assistant and someone who sets up their own password to my instance of Luminello. So, both of the people I’ve named, and this is a best practice, you name one colleague and an alternate. For some reason, that colleague was not available, just like many of us do in our wills. They have both been invited to be assistants on my Luminello account so they both can have access to my Luminello account. I don’t need to name the password. Well, I have the password to my voicemail in there, but I don’t think there’s anything else that I need the password to in my practice closure instructions.

Ken: Okay. So we went real deep really quickly then. Let’s take a step back. Where did this even come from? How did you even think about this?

Dr. Berlin: I don’t remember. I remember learning about it. And I’ve read that it’s a recommended best practice for solo practitioners. I’m someone who really likes to get organized and so I’m fastidious with my estate planning and my emergency kits. I like being prepared. And so it’s possible that along the line of learning about all of those things, I crossed paths with something that was written about a “practice will.” I don’t honestly remember how I first learned about it, but once I did, looking online for templates to see what a standard document of this type even looks like. And it’s interesting because I remember the first time I did that and this was several years ago, I did it again recently. 

I just Googled private practice rules. There are a lot more templates online. I think more and more people are understanding the importance of this. It was quite honestly, a very gradual project of several years is like half-hour here, a half-hour there. Drawing up my own document and then would move offices and have to make a change. I went from having an old school EHR on my computer to a cloud-based EHR and that changed a lot of things. So it’s a live document because our practices are always changing.

Ken: Did you end up using a template or did you have a lawyer modify it for you?

Dr. Berlin: I used a template. My lawyer also hadn’t heard of this and she’s a solo practitioner. She’s like, wow, this is a really good idea. She had never been asked to look at anything like this. So, what I did was I used a template, and then the template prompted me to think about just where are all the people and the pieces of my practice located. Before the pandemic, I was in an office space with a property manager. So like naming who’s the property manager in my building and checking with that person if someone were to contact them on my behalf, would there be any issues with that property manager, with that person? So just going through different scenarios and there’s another point I wanted to make, but what was your question? I just completely forgot what it was. Do you remember it?

Ken: I don’t.

Dr. Berlin: Oh, my, the template! Yes, we have a template. And so the template was just a place that jogged my memory in terms of where are all the parts of my practice that I just kind of know from procedural memory and don’t even have to think about where they are located. What would somebody walk in here with no understanding about how my practice runs, what would they need to know? So templates are really helpful because they name the big items like how to find the list of patients, how to find your schedule, how to find how to contact patients, all that is covered in the template. And then there are other things that as I was writing it up I thought of along the way.

Ken: I see. How do you think about it in terms of your patients as you’re going through the document?

Dr. Berlin: So, it’s now part of my practice policies that all new patients sign that I have designated one or two colleagues who would step in on my behalf were I to become incapacitated. And I asked them by signing my practice policies to give me permission to release their information to my colleagues. And so I doubt many of my patients remember this, but I covered this with my liability carrier making sure that the verbiage of this passed muster with them for existing patients in my practice who had already signed my practice policies when they came into my practice. I drew up a practice policy addendum and ask them to sign that. So, for some patients there was a conversation that had to happen and most of them expressed feeling reassured knowing that I was doing that. And patients that have come on to my practice since I’ve incorporated it into my standard practice policies it never comes up because people don’t read that. It’s like the last paragraph, right? At that point, no one’s really paying attention.

Ken: Right. So, how long did it take you to do it, and how painful was it to put together?

Dr. Berlin: Well, I mean, you’re talking to someone who likes setting things up. So, the painful part was I couldn’t just completely immerse in the project until I was done from beginning to end. I had to do it in bits and pieces and get interrupted, but it was because it was getting plugged in after hours, after all the other things that we have to do. It took a few years. 

Ken: Oh, wow. 

Dr. Berlin: And also then the pandemic happened. What I’m saying is I wasn’t consistently working on it every day. Like if you were to compress the time that I worked on it if one could work on it uninterrupted. I would say depending on how complicated your practice is, a few days of writing, naming all the bits and pieces.

Ken: How did you know how much detail to go into? Did you give a demo to the people who you named, and walked them through it to see if they had any questions?

Dr. Berlin: That’s a great idea. I haven’t. I have shared it with them. I hope they’ve looked at it. I tend to be a pretty good writer. I think my writing is really clear. I’ve broken things up into really clear steps. I included in the document screenshots of my Luminello. So the instructions are very step-by-step, but I don’t actually know. I haven’t actually taken a poll of like how did this land for you?

Ken: Oh, it makes sense, just so much to think about on a high level, and then getting to that really fine tooth level, that’s really meaningful. Now I can see why it took a few days if you’re giving them screenshots and line-by-line instructions.

Dr. Berlin: That’s my approach. That may not have been necessary. Just having had friends who have had to step in and shut down their parents’ affairs that were more or less well organized for them and just knowing how stressful that is. This is a big ask for. You’re basically asking someone who in theory already has their own practice, to manage your practice. Although, one of the things I saw this, in some of the templates that I wrote that I stipulate is that my practice closure assistants, i.e. executors, would bill my practice for their time. And so I noted this in my instructions to them and it’s also in my personal will instructions that this is an anticipated expense. I wouldn’t expect a colleague to do this for free. This is a lot of work. But I really wanted it to be as clear and user-friendly a process as possible.

Ken: So they would bill the estate. And you let the patients know that, so that way the patients wouldn’t be confused about the relationship?

Dr. Berlin: Not the patients. The executors would bill the estate for their time spent managing the shutdown.

Ken: But that’s not disclosed to your patients?

Dr. Berlin: No, no, no. That’s not disclosed to my patients.

Ken: Got it. Yeah, that makes sense.

Dr. Berlin: And not that they would start taking care of my patients, but that they would be letting my patients know that I was no longer available and helping my patients find a new psychiatrist.

Ken: That’s interesting. That becomes more of a case manager on a much higher level.

Dr. Berlin: Yeah. The way I broke it down, just in my practice, I would say about two-thirds of my week of the clinical hours I have in a week is spent doing therapy. And another third is spent doing medication management. But if you look at the panel of my patients, I have a ton of medication patients because those folks aren’t coming in every week and a smaller subset of therapy patients. The therapy patients would need a lot more hand-holding. So it’s a smaller group of patients. All of the medication patients in my practice at least have therapists.

And so this is one of the pieces of instruction in my will or clearer instructions as I show my executors where to find the authorization to contact the therapist in the patient’s chart. So that they can find that person’s phone number and then they can reach out to that therapist and rope that therapist in to maybe be the person who’s doing the frontlines work of referring to different psychiatrists, etc. So that’s an example of the sorts of things that I found myself thinking. So, for example, one of the pros of taking a long time to write this document is it gives you time to notice things in your practice. So, one of the things that I realized as I was putting this document together is that I wasn’t maintaining the practice of updating releases that expire after one year.

Ken: Oh.

Dr. Berlin: Technically, we need to do that. So, now I have a workflow in my practice where I put a task in my task list when the next release is going to be due. And that way I know that for all my patients there’s an up-to-date release in their chart, both for the purposes of having them released, but also that if my executor needed to step in, they would easily be able to find that and be buried somewhere, and it would be the current therapist with a current phone number to reach that therapist.

Ken: That’s fantastic. And then in terms of your therapy patients, what approach do you want your executor to take with them?

Dr. Berlin: So, obviously, if we if this were to come to pass, we don’t know if this would come to pass because I had an accident with a disabled or if I had died. So, depending on the circumstances and this is why you choose colleagues who you really trust. You trust that they would have enough of their own skillset to figure out what’s the best way to talk with my patients. But I would want what I’ve instructed and my document is for my therapy patients to get a phone call, but my med patients can get an email. I think my therapy patients would need to get a phone call. Maybe there would be an email that would go out first saying, I’m a colleague of Dr. Berlin’s and I need to set up a phone call with you. And then they would be sure they were calling them at a time when they could speak. And then the expectation is they would potentially offer themselves as a referral or find other people that could work with them. That would be more of a project.

Ken: Yes. Any other criteria that you’re looking for in terms of your executors as you thought about people to ask?

Dr. Berlin: I think I just kind of organically gravitate to thinking about people who, at least in my fantasies. I don’t actually know how anybody else practices. I’m not in the room with them and their patients feel like they have a similar style to me. You know, it’s like, probably not unlike when you think about if you’re drawing up your other estate planning documents, who do you name as the guardian of your children, just who feels like most akin? Who would you want to entrust the care of your patients to in a situation like this?

Ken: That’s a great way to put it. So let’s say I’m a new grad, just going into private practice. How much should I be thinking about this?

Dr. Berlin: I think we all should. I mean, unfortunately, we never know what’s going to happen to us. And if we are responsible for taking care of people and there’s nobody built in to step in and take care of the people you’re responsible for. You need to identify somebody who would do that if you no longer are able to. So it’s not really a question of how long have you been in practice? It’s a question of are you responsible for people’s well-being?

Ken: Yeah, that’s a good point. What happens if you don’t do it?

Dr. Berlin: I don’t know. I’ve certainly had patients over the years who have had therapists die on them. In the same way, you wouldn’t say, I’m a young parent, so I’m not going to die later. You want to have your life insurance and your guardians named to take care of your children. And it’s a very loving thing to do that for people in our family and for our patients. And I think that if again, I hope this document never has to be used, but if it were to come to pass that it was my patients getting a call saying, I’m the person, your psychiatrist, your therapist designated to help you through this process. I think they would feel really taken care of.

Ken: What about for groups, any considerations? Is this only for solo practitioners?

Dr. Berlin: I think it’s most critical for solo practitioners because presumably, this is a big presumption, but presumably groups have cross coverage and a lot of the nuts and bolts of how the practice is run are not practitioner dependent. There’s the administration of the practice, the billing of the practice, even contacting patients and scheduling. That may not be the purview of the clinician. But I still think that depending on how much variability there is in how different clinicians operate within a group, I think the question for groups would be to ask themselves if clinician X were to suddenly not be able to come to work tomorrow, do we have processes in place to account for that?

Ken: That’s a good point, I think. Small groups wouldn’t assume they do have admin help even if they are approved. And sure, if it’s a hospital system, you would think, although there should be in theory, business succession plans. But yeah, this makes sense that the lack of admin help, and especially if you’re on your own, man, it’s just overwhelming to think about the lack of this. And I think this is so important, so meaningful. So, what would you say is the lowest-hanging fruit here? Like the easiest way to get started with it?

Dr. Berlin: Get a template and start to gradually edit it over time. Just look up a template. And a lot of the templates that I saw were posted by psychological associations. So, I don’t know if this is better known in the world of psychologists and psychiatrists. And so there were some things that didn’t quite match, but I found the template really, really helpful and I found it really comprehensive. So, think about who you would want to name as your colleague in an alternate and have a conversation with them. And maybe you do for them what they do for you. Start to craft from a template. 

I don’t know. Some people might find it easier to do this with a buddy like sitting down with somebody else, and like, let’s do this together and ask each other questions. And what do you think about this section? Of course, that means you have to coordinate schedules with another person which is complicated. It’s a big project, but it’s also, this is the sort of thing I like to think about. I think it’s very worthwhile. And I think it then also makes you think about other aspects of how you practice that you can streamline. Like the example I gave of making sure I have a way of ensuring that my authorizations are up to date.

Ken: It makes sense. So, at any point do you have to have a lawyer review it or it’s not a legal document in that sense?

Dr. Berlin: I don’t think it’s a legal document. Like I said, I asked my state attorney because I just that’s just what I do. And she had never heard of this and she didn’t really have much of a basis for reviewing it. Her main feedback was, don’t call it a will.

Ken: Lest it be confused with a legal.

Dr. Berlin: Exactly. I don’t think it’s a legal document. I’ve read, for example, that the San Francisco Center for Psychoanalysis has a committee on ethics that has posted some things about practice wills and I know it’s considered a best practice. I don’t believe that it’s a requirement of any sort. I mean, just kind of riffing on the legal question, I probably at some point asked my liability carrier to take a look at it too, because that’s another place to get a legal review and made sure for example because my point of contact at my liability carrier is named in my document so that my colleagues. That’s really important. There may be questions about dispelling patients, referring patients. There may be questions about releasing charts to new treaters and so those are instructions in my document. Before you release any charts, talk to my liability carrier. And so I had to check with my liability carrier to make sure if you hear from this person on my behalf with this document, is that straightforward or is there something else that needs to happen?

Ken: And what did they say?

Dr. Berlin: I know they gave me instructions or whatever the instructions were I put them in my document. But, yes, there was definitely a way to do it. I just don’t remember what the specific way was.

Ken: Yeah. So maybe we can get that link and we’ll put it on the site here so that people can follow out. Any other recommendations for reading or links that you might have? You don’t have to think of them now.

Dr. Berlin: I’ll just name one other thing. It’s kind of related and you’ve maybe heard me talk about this in other conversations, but in the course of looking at best practices for overall estate planning, I discovered an online tool called Ever Plans. And I know there are other products like this. It’s not unique, but basically, it’s a platform where you can name all of your bank accounts and you can name all of your digital subscriptions and you can upload all of your insurance policies, and then you can name people who have access to different sections of that of your instance of the platform now or at your death or both. And it was like another thing that kind of prompted me to think about all these different dimensions of my practice and of my life. So, it feels very, very similar. And I just find it as a tool very helpful to give me a structure to thinking about this process. I think you’re asking these questions. What’s the structure to this? I found Ever Plans just as one tool really helpful for that structure. 

Ken: That’s great. Okay. Well, you’ve given me a whole bunch to do.

Dr. Berlin: Are you excited to go home and write yours?

Ken: Yes, I’m way behind.

Dr. Berlin: It is intimidating, but you know, I think you can go about this process not feeling like it’s an emergency and you’re just gradually chugging away at it and it will get finished.

Ken: That’s great. Well, thank you so much for your thoughts here. I learned a lot.

Dr. Berlin: Sure.

Ken: This is great. Thanks so much.

Dr. Berlin: Thanks for having me. I hope this is helpful to folks.

Ken: It’s fantastic. And we’ll look forward to having you back again soon and take care for now. Thanks. Bye.

Dr. Berlin: Bye.

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