Elder Law Attorney Dilemma

Sorry for my long absence.  I have been deluged with client files coming back from the Medicaid agencies after months of the agencies’ inactivity after a huge computer snafu.  Unfortunately, I can’t promise that I will return to my weekly schedule steadily.  There is a bit of a secondary backlog of newer applications that has built up as the Medicaid agencies, the applicants, and their attorneys deal with the pre-computer-snafu backlog.  Still, for the first time in weeks, here is a new installment of the Protecting Seniors News blog.

What is an elder law attorney’s obligation to the emotional well-being of a client?  What does an elder law attorney do after discovering information that might “break a client’s heart” when the client is emotionally vulnerable?  Does it matter that the emotionally-charged information has no impact on the legal services?

Before going further, I must give a little background on elder law attorneys.  Elder law attorneys talk amongst themselves.  We talk amongst ourselves a lot.  Elder law attorneys, especially those who focus on long term care issues, know each other and, generally, like each other.  In addition, there aren’t many of us.  We all face the same or similar issues with our clients and all must navigate the same ever-changing terrain of long term care regulations, health care provider contracts, and family dynamics.  We turn to each other as sounding boards, as confidants, and as supporters.  In this vein, an elder law attorney sometimes turns to colleagues for ideas on how to handle thorny situations.

One of these thorny situations fell into the lap of an attorney who helped a client qualify for Medicaid so she could move into a nursing home.  She had been disabled because of a severe accident in her early 30s.  Over time, her health deteriorated to the point that she was bed-bound for 8 years.  Her husband worked 8-10 hours per day and then acted as caregiver for her the rest of the day.  He also had a great deal of involvement in raising their children during the first years of his wife’s disability until the children were able to move out on their own.  After 24 years, the couple sought help qualifying the wife for Medicaid to pay for her care.  (They had mistakenly believed that nothing could be done to get her care without costing the couple all of their savings and income.)

The attorney helps her qualify for Medicaid and, at the same time, helps the husband save a great deal of their savings.

A few items of paperwork needed to be done as a follow-up to the Medicaid approval, and the attorney was working with the couple’s daughter.  The daughter mentioned something about the husband’s girlfriend.

The attorney didn’t know what to do.  The existence of a girlfriend had no impact on Medicaid eligibility.  It had no impact on care for the disabled wife.

The attorney understood the husband’s loneliness.  He had been more of a caregiver than a spouse for 24 years.  At the same time, the attorney understood that the wife might want to know that her husband had not been faithful.  Still, telling the wife might do nothing more than break her heart at a time that she already had a pretty bad life.

The attorney sought input from the wife’s social worker at the nursing home, and the social worker asked the attorney not to share the unfortunate information with the wife.

The attorney also sought input from two elder law attorney colleagues.  One colleague agreed with the social worker and suggested keeping the information from the wife.  The other colleague was concerned about the propriety of an attorney withholding information from the client.

I don’t think the attorney had any better idea of what to do after receiving advice from the social worker and the other attorneys.  I’m not sure how I would handle such a sticky situation myself.  I’m not sure that there is a good answer.

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