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Know the Law - Clients' Sensitive Medical Records

Written by: Alexandra T. Breed

This question was answered by Alexandra Breed of the McLane Law Firm

Published in the Union Leader

Q: I am a semi-retired psychiatrist operating as a solo practitioner private practice. Are there specific provisions I should have in my estate plan that will protect my clients’ sensitive medical records in the event of my death?

A: Yes, the inability to immediately access sensitive medical records because of the unexpected death of a professional could cause great hardship to a patient. Many professional organizations now recommend that there be a plan in place to protect patient records under these circumstances. Additionally, some professional organizations require that the estate of a deceased professional transfer confidential patient records to a new treating professional and not to the patient. An increasingly popular method to address this problem is a “Professional Will”.

A Professional Will, properly executed as a testamentary instrument under NH law, allows for the orderly collection, management and disposition of patient and professional records. It can be incorporated into your primary Will, be a separate document referenced in your Will, or be a codicil (amendment) to your primary Will. It must meet the statutory requirements relating to testamentary documents (i.e. in writing, signed by the testator and properly attested to before two disinterested witnesses) and be consistent with your primary Will.

The Professional Will appoints a person called a “Professional Executor” to make decisions about storing, releasing and disposing professional records. The Professional Executor is given the authority to notify patients, the decedent’s professional liability carrier and the appropriate NH licensing board of the professional’s death, and to facilitate referrals to other professionals. The Professional Will typically contains information regarding the location of current and past patient records and patient contacts, the billing records, location of the appointment book and keys for the office and filing cabinets, voice mail access codes, as well as the names and contact information of other persons who would be helpful to the Professional Executor.

Having an effective Professional Will meets the ethical obligations of the practitioner to protect patient records as well as to provide an orderly method to manage and transfer the sensitive patient records on death or incapacity. Every solo practitioner, whether doctor, psychologist, mental health counselor or other, should provide for the orderly management and transfer of his or her practice in the event of death or incapacity. A Professional Will is one way to address this problem.

Alexandra Breed can be reached at alexandra.breed@mclane.com.

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law.  Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 326, Manchester, NH 03105-0326 or emailed to knowthelaw@mclane.com.  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.

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