This article was originally published on socialworktoday.com.
The often-blurred lines between social work and law present an age-old ethical challenge for those in the social work field. Sharing common interests and objectives—such as improving quality of life for clients, combatting social injustice, and promoting social well-being—social workers and attorneys are often faced with needs and issues that intersect and go beyond their respective scope of services. The challenge lies in how to handle these overlaps when they happen—particularly when a mishandling of these crossovers may mean a breach of ethics. With an understandable desire to go above and beyond the call of duty, social workers may feel obligated and tempted at times to provide advice to clients in areas beyond their scope of knowledge and expertise—namely, legal advice. It is in these cases that the presence of a strong, two-way referral system is as vital to clients' well-being as it is to the integrity of the two professions.
A Difference in Perspective
Often social work and law will serve similar roles as client advocates and brokers. However, the timeline of when their services come into play significantly differs. Additionally, while social workers will often assume the role of facilitators, connecting their clients with necessary resources and services, attorneys are often considered resources themselves.
Trained to fully explore and understand the context of a client's problem before identifying a plan or treatment, social workers may work through every possible solution before creating a client's "road map," which serves to steer the client in the healthiest and most productive direction, providing knowledge and resources along the way to help the client arrive at a beneficial solution to the issue at hand.
At this point attorneys will often become a part of the picture. As a legal resource, lawyers are in charge of giving legs to this road map, making sure the client arrives at the intended destination within parameters they both feel comfortable with and benefit from. During this process, it's critical for both attorneys and social workers to establish an open, respectful relationship, assisting each other in understanding the client's needs and wants.
On the other side of the equation is the attorney-client relationship, which in many instances benefits from adding the educated perspective of an experienced social worker. In the best interest of the client, it is wise for lawyers to see how a licensed professional in a related field handles an issue. Many elder care issues lay at the crux of moral caregiving and lawyers should not ignore various solutions simply because a subject is beyond their realm of knowledge. Not every problem needs to have a strictly legal-based solution.
Elder Care Case Examples
In her social work, Cindy encounters a patient who needs to be placed in a nursing home; however, the patient is worried that in the process the state will seize his home. The patient recalls a neighbor who found herself in a similar situation and, in order to avoid seizure, had deeded her home to her children prior to submitting a Medicaid application. Citing his friend's experience, the patient approaches Cindy asking for advice on what legal measure to pursue in order to best protect his property and assets.
The dilemma Cindy is faced with is far from uncommon but poses significant ethical consequences if handled poorly. The client's request for advice extends outside the realm of Cindy's education, training, and certification and instead falls into legal territory.
If Cindy, however offhand or well intentioned her actions, were to instruct her patient on the best course of legal action, she could be charged with practicing law without a license. It is a restriction reinforced by NASW Ethics Rule 1.04(a), which states that social workers "should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience." Within these rules, it's also stressed that those not legally certified have no power to issue legal advice, select legal documents on behalf of another person, prepare legal documents, interpret the law as it applies to another's situation, or represent another person in any legal matter.
Cindy's ethical duty to refrain from providing legal advice does not, however, mean her client's needs should or will go unmet or ignored. It is as much her ethical duty to ensure her clients' and patients' needs are fulfilled as it is to ensure they are fulfilled correctly.
In some cases, social workers are quick to seek legal advice, but they do so in an uninformed manner—a pitfall that could be easily avoided by having a trusted, standing referral relationship in place. Responsible professionals recognize that their decisions can have serious consequences and long-term ramifications. It is vitally important to establish referral sources with trusted professional colleagues, consultants, and attorneys. Such consultation may help the social worker examine every important facet of options and consider all pertinent ethical and legal issues. A second case study illustrates this.
A mental health facility admits Mary, an elder, indigent, out-of-state patient experiencing acute confusion. The facility indicates Mary is uncooperative to treatment, an escape risk, and a threat to staff. The facility's social worker, Randy, immediately reaches out to an elder law attorney for emergency conservatorship. This conservatorship process is expedited with the help of facility physicians and approved by the courts based on facts generated by the facility. However, the conservatorship is dissolved a short time later by the attorney firm's request due to the stabilization of Mary's drug-induced delirium and emerging capacity. The attorney found Mary to be competent, although her choices and way of life are not typical.
The perfect storm in this scenario was triggered by poor assessment, which led to a lack of identifying all possible courses of action and eventually an absence of consultation with appropriate experts. A substantial amount of time and money would have been saved if Randy had followed NASW Ethics Rule 1.04(b), which states social workers should "provide services in substantive areas or use intervention techniques that are new to them only after engaging in appropriate study, training, consultation and supervision from people who are competent in those inventions or techniques." In this scenario, a standing relationship with a firm or attorney would have behooved Randy, allowing him to make the most beneficial decision for Mary's health and future.
Attorneys are also often faced with issues involving clients and their families that require more than legal assessments. Take, for example, Gary, an elder law attorney.
Gary's client, Linda, needs nursing care immediately. Linda's daughter, Melissa, is her primary caregiver. Linda did not finish executing her estate and incapacity documents nor did she develop a thorough life care plan. Melissa now has to prepare for guardianship litigation while making immediate arrangements for her mother's long term care. Melissa quickly becomes overwhelmed with the task at hand and places her mother in an assisted living facility nearby and then further focuses on her mother's legal documents. Linda's condition worsens and doctors diagnose her with Alzheimer's disease, but her current assisted living community does not have a specialized program for seniors with memory impairments. Melissa is forced to reassess her mother's living arrangements and find a better alternative.
In an ideal situation, Gary would have a standing relationship with a social worker who could advise Melissa regarding her options for a suitable elder housing facility for her mother, taking into account all of her physical and mental health history. Ultimately, the client is better served when legal, housing, and life care needs can be effectively and efficiently decided upon in one place.
Establishing a Referral Relationship
Social worker-attorney relationships are the wave of the future. It's not a matter of where one service ends and the other begins but rather how the two can work collaboratively with one another.
In Randy's case, and in many others, it would have been beneficial for him to engage in consistent networking and collaboration with attorneys prior to his incident with Mary. For social workers, this may mean stepping outside of their fields by attending legal networking events and introducing themselves to legal circles. Most state bar associations have committees designated to exploring practices that closely resemble those of social workers, including suicide prevention and awareness committees, military legal assistance programs, committees on racial and ethnic diversity, and committees on LGBT issues. These committees are prime opportunities for social workers to engage and partner with committee members, developing connections that could ultimately develop into lasting referrals.
Additionally, there is an emerging trend of attorneys seeking out social workers to assist in improving and expanding their own client services. By establishing a connection with a legal professional within a practice, social workers not only plug into a pool of resources but also have the potential to gain new clients whom attorneys require assistance in handling. Firms are taking the innovative step in developing client services to meet the needs of baby boomers by bringing the reciprocal referral source idea in house. Attorneys and social workers are joining together to become a formal full-service team, helping clients under one roof.
When you step back and take a look at the social work world, you'll see legal threads weaving in and out of cases, and the same is true in the inverse. Recognizing this intersection will put social workers ahead of the curve and potentially help them avoid ethical snags along the way. Establishing a relationship or partnership with a trusted attorney is crucial, providing the basis for a reciprocal referral system that reinforces profitability for both sides, as it does both professions' ethical standards. But more than anything, it is crucial to embrace this change and recognize that the aging of America is altering the shape of how law firms deliver client services.
— Amy Boulware, LAP, MSW, is an active member of the Alzheimer's Association, the Area Agency on Aging and Disability, and NASW.
— Sally Brewer, BS, is a care coordinator, qualified dementia care specialist, and paralegal who is a member of the Dementia Care Professionals of America.
— Dana Perry, JD, is an estate planning, special needs planning, and elder law attorney.
The authors are colleagues within Chambliss law firm's estate planning practice.
Posted on January 23, 2016
by Waterhouse General filed under