Deciding for My Client: When Social Workers Serve as Proxies

by Allan Barsky, JD, MSW, Ph.D.

     Social workers believe in client self-determination, meaning that they respect the right of clients to make decisions on their own behalf. What happens, however, when a client is no longer capable of making his or her own decisions? If a client, lawyer, judge, or family member suggests that a social worker should act as a proxy on the client’s behalf, what ethical considerations should the worker take into account? Note that proxies (or surrogate decision-makers) can be appointed to make health care decisions and/or financial decisions.

    Interestingly, the NASW Code of Ethics does not specifically cover social workers’ obligations when they are acting as proxies. The closest standard covering this issue suggests:

1.03 (c) In instances when clients lack the capacity to provide informed consent, social workers should protect clients' interests by seeking permission from an appropriate third party, informing clients consistent with the clients' level of understanding. In such instances social workers should seek to ensure that the third party acts in a manner consistent with clients' wishes and interests. Social workers should take reasonable steps to enhance such clients' ability to give informed consent.

Benefits of Social Workers as Proxies

    So, if a client lacks mental capacity to provide informed consent, a social worker is generally supposed to seek consent from a third party who is responsible for making decisions. In the scenario stated above, the question is whether it is ethical for the social worker to be this “third party,” to act on behalf of the client. The answer is a clear and firm, “It depends.”

    There is nothing inherently wrong with a social worker acting as a proxy. In fact, there may be significant benefits in having a social worker act as a proxy:

• There may be no other person who knows the client as well as the social worker (e.g., if the client has no surviving family members or close friends, and the worker has been working with the client for a significant length of time).
• The social worker may be more objective than family members or friends in making decisions on behalf of the client. Family or friends might impose their own beliefs and values. A social worker may do so, also, but is trained to have self awareness, which may prepare the worker to make decisions consistent with the terms of the power of attorney or living will.
• The client’s family and friends might have greater trust in a professional social worker (e.g., if there are conflicts between family and friends who might otherwise be the proxy).
• Social workers often charge less than professional proxies such as lawyers and accountants. (Of course, this is a benefit to the client and client’s heirs, rather than to the social worker.)
• The client may prefer that the social worker is the proxy, which would be honoring client wishes and self-determination.

Risks

    In addition to considering benefits, social workers should consider the ethical and legal risks of assuming the proxy role. First, there may be issues of conflicting interests and dual relationships (Standard 1.06 of the NASW Code). If the social worker has been serving the client as a clinical counselor, for instance, it would be a conflict of interest for the worker to ask the client to appoint the social worker as her proxy. The client may feel pressured into making this assignment, even if the social worker has good intentions and the client possesses mental capacity at the time of the request. 

    Another conflict of interest may arise in regard to acting as a proxy and continuing to act as a clinical counselor after the client has lost mental capacity. The worker’s views on what is good for the client and consistent with the client’s wishes may be affected by what happens in counseling. The client may also feel compelled to follow whatever the worker suggests in counseling, as the worker has power over the client in a broad range of life decisions. 

    Further, it may not be appropriate for the worker to simply terminate counseling to assume the proxy role. Terminating counseling in such circumstances may be viewed as abandoning the client (Standard 1.16) or placing the worker’s interests above the client’s (Standard 1.01).

    Another area of concern relates to the social worker’s role, mandate, and place of employment. If the social worker is working for an agency, the agency may have policies that do not allow the social worker to assume the role of proxy. Also, would the worker be able to act as a proxy outside the agency (and get paid personally), or would the worker be serving as a proxy as an employee of the agency? The ideal situation might be for a social worker who is working in an agency or private practice to specialize in acting as a proxy for clients.

    A final area of concern relates to the potential disputes that the worker may need to manage with regard to the client’s family and friends. If there is high conflict, the worker should be prepared for how to manage this conflict—in terms of having the clinical skills and the time to deal with the conflict.     

    Consider an end-of-life situation. If the worker has to make a decision about whether to remove life support or whether to authorize risky surgery, the worker is not making the decisions in a vacuum. Although the client’s wishes are supposed to be paramount, family or friends may want input into decisions. Emotions may run high. They may also contest certain decisions. 

    Financial issues may become tricky, too. If a family member thinks the proxy is misusing the client’s financial resources, there could be conflict, as well as legal actions. 

    Acting as a proxy can be enjoyable, gratifying work, but you can expect many challenges along the way.

Considerations

    If you (as a professional social worker) are thinking about acting as a proxy for a client, you might want to consider:

• Do you have the time, skills, emotional stamina, and experience to assume this role? (See Standard 1.04 regarding professional competence.)
• Are you familiar with the laws governing proxies, living wills, and durable powers of attorney?
• Can you engage in this role in a manner consistent with your agency policy and the NASW Code of Ethics (particularly, avoiding dual relationships when there is a risk of exploitation)?
• Does your liability insurance cover you in the proxy role?
• Do the benefits to your client outweigh the risks?

    Proxies play an important role in the lives of people who lack mental capacity, making key decisions on their behalf. Despite the cautions, acting as a proxy can be very interesting and meaningful work. When deciding whether to act as a proxy, please ensure you are apprised of all the potential benefits and risks.

Dr. Allan Barsky is Professor of Social Work at Florida Atlantic University and former Chair of the National Ethics Committee of the National Association of Social Workers. He is the author of Ethics and Values in Social Work (Oxford University Press), Conflict Resolution for the Helping Professions (Oxford University Press), and Clinicians in Court (Guilford Press). The views expressed in this article do not necessarily reflect the views of any of the organizations with which Dr. Barsky is affiliated.