Reference · Evidence Code and the records chapter · read 11 September 2026
The privilege does not lapse at death. It changes hands.
When a client dies, two things happen that are easy to get backwards. The psychotherapist-patient privilege survives, and its holder becomes the personal representative. And the right to the record runs to a defined list of people — the representative, and since 2021 the beneficiary as the Probate Code defines one — not to whoever is grieving, and not to whoever asks first. The retention duty keeps running underneath both.
Who holds the privilege →Who holds the privilege
One sentence answers it, and it is the third one.
Evidence Code §1013 defines the holder of the psychotherapist-patient privilege in three clauses: the patient, where there is no guardian or conservator; the guardian or conservator, where there is one; and — “(c) The personal representative of the patient if the patient is dead.” Nothing in the article makes the privilege end with the patient, which is why a request that arrives after a death is answered the same way as one that arrives before it: by asking who holds the privilege now, and whether they have waived it.
| Who is asking | Standing | Where that comes from |
|---|---|---|
| The client, while living and without a guardian | Holder | Evid. Code §1013(a). |
| A guardian or conservator of the client | Holder | §1013(b), where one has been appointed. |
| The personal representative of a deceased client | Holder | §1013(c): “The personal representative of the patient if the patient is dead.” |
| A beneficiary, as Probate Code §24 defines one | Representative for records | H&S §123105(e)(4) names the beneficiary as well as the personal representative for the purposes of the records chapter; the amendment that added the beneficiary took effect 1 January 2021. |
| A parent of an adult client | Neither, without more | §123105(e) lists a parent only for a minor patient, and §1013 does not name a parent at all. |
| A spouse, sibling or adult child, without appointment | Neither, without more | Relationship is not on either list. What matters is the role the Probate Code defines and the document that establishes it. |
Two different lists are at work: Evidence Code §1013 decides who holds the privilege, and Health and Safety Code §123105(e) decides who counts as the patient’s representative for the records chapter. A person can be on one list and not the other.
Who may have the record
A defined list, and a 2021 addition to it.
“‘Patient’s representative,’ ‘patient’s personal representative,’ or ‘representative’ means any of the following” — a parent or guardian of a minor patient; the guardian or conservator of an adult patient; an agent under a power of attorney for health care, to the extent needed to fulfill the duties in that division; and, for a deceased patient, the beneficiary as defined in Probate Code §24 or the personal representative as defined in §58.
The subdivision was amended by Stats. 2020, Ch. 101 (AB 2520), effective 1 January 2021. Guidance written before then describes a narrower list, which is a reason to read the section rather than an article about it.
Once a requester is within §123105(e), the request is a records request: the inspection and copy clocks, the per-page charge and the retention date are the ones on the records calculator.
H&S §123115(b) is not written out of the picture by a death: where the provider determines there is a substantial risk of significant adverse or detrimental consequences, the four conditions apply as they would to any other request for mental health records.
A parent of an adult client, a spouse, a sibling or an adult child appears on neither list without an appointment or a Probate Code role. Whether a particular person holds that role is a legal question with a document behind it, and asking for the document is the ordinary answer.
What the practice still owes
The duties that do not end with the treatment.
B&P §4980.49 and its counterparts: a licensee retains a patient’s records for seven years after the therapeutic relationship ends, or seven years after a minor patient reaches 18. A death ends the relationship and starts nothing over.
The unprofessional-conduct sections require confidentiality of everything received in confidence during treatment and everything learned about the client, “except as otherwise required or permitted by law” — a formulation with no expiry attached to it.
The chart closes with the same discipline it was kept with: the date the practice learned of the death, from whom, what was done with any scheduled appointments, and each request received afterward with what was provided or withheld and why. A refusal under §123115(b) is itself a document that belongs in the file.
The retention duty is what makes a professional will practical rather than sentimental: the person named there is the person who answers a representative’s request years later.
The other direction has its own pages
What happens to the records when the therapist dies or closes is the closing checklist and the professional will generator: the custodian, where the files are, and who tells the clients. This page is the reverse case, and the two meet at the same duty — somebody has to be able to answer a request years later.
Then what
The pages around this one.
The clocks
Records request deadlines
Five working days, fifteen days, the summary option, the retention date.
What is in the chart
Psychotherapy notes and the record
What separates, and what the state asks instead.
If the practice ends
Closing a practice
The custodian, the notice, and the records that outlive the office.
Where every figure came from
Sources.
The privilege
The records chapter
Each definition above is quoted from the section cited, read on 11 September 2026 and linked. Whether a particular person is a beneficiary or a personal representative within the Probate Code’s meaning is a legal question that usually has a document behind it, and this page does not decide it. Nothing here is legal advice, and nothing here addresses clinical response to a client’s death, which is a different subject with different sources.
