Bequest from Patient

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Avoiding Liability Bulletin – October 2007

… In last month’s issue of the Avoiding Liability Bulletin (October 2007), I asked readers to ponder a scenario that involved a wealthy deceased client who left her former therapist a $10,000 bequest in her will in appreciation for her work with the patient and other family members over a long period of time. The fact of the gift is first disclosed to the therapist two months after the patient’s death and one year after the termination of therapy. The deceased patient’s spouse is supportive of the bequest and is the one who tells the therapist about it.

I asked several questions in that article, the first of which I address below. The remaining questions are for others to answer. The questions asked were as follows: a) Is it okay for the therapist to accept the bequest or must/should it be returned to the estate? b) What would your lawyer say? c) What would your professional association say? d) What would be the position of your licensing board?

It is important to read the October 2007 Bulletin to understand my general bias against the giving or receiving of gifts and the reasons why I feel that way. I do recognize, however, that there are exceptions to my general rule and that circumstances may arise where the giving or receiving of a gift may be appropriate, supportable, and lawful. The scenario referenced above appears from the facts presented to be just such a circumstance, despite the large amount of the bequest. In my view, it is okay for the therapist to accept the bequest and there is no need to return it to the estate. Of course, if a state law, regulation, or ethical standard prohibited the gift’s acceptance, a different answer would be given.

The therapist was apparently unaware of the bequest when it was made. There apparently was no discussion of a bequest or gift between the therapist and patient during the course of therapy. There appears to be no family outrage or opposition. To the contrary, the family seems to be supportive of the idea. There was apparently no pattern of prior gift-giving or receiving and there appear to be no issues of dual relationship, exploitation, boundary violations, or anything other than a good will gesture motivated by appreciation for services rendered. The fact that the client was wealthy is helpful when thinking about the size of the gift. In the absence of a specific prohibition against accepting and keeping the gift, there appears to me to be no valid reason requiring refusal or rejection of the bequest.

It is unlikely that a situation like this would escalate to a point where a complaint would be filed with a licensing board or an ethics committee, especially if the therapist is able to properly assess the situation and the people involved. Generally, in a situation such as this, it is unlikely that information about the bequest will be widely known, if at all. But – since anything can happen, therapists must always be thoughtful and reflective about such issues. Ethical standards should be carefully reviewed and consultation with an attorney may be appropriate – depending upon circumstances. In the category of “anything can happen,” I have seen cases where the spouse of the therapist, who is privy to information about the therapist’s practice, such as the receipt of a gift by the therapist-spouse, is the one who files a complaint. Obviously, this might take place after the couple has bitterly parted ways or when they are battling in a custody dispute!

In this particular case, even in the unlikely event that the bequest would come to light and result in a complaint to an ethics committee or a licensing board, the therapist should have no liability before either body because he or she has apparently not engaged in prohibited conduct. While one or both of these bodies may decide or be required to investigate, the therapist should not have any vulnerability – other than the stress and expense of going through such a proceeding. Based upon the facts presented in this case, the investigation should be brief and the complaint should be dismissed early – unless the committee or the board acts arbitrarily and without sufficient justification. This would hopefully be rare, although it can and does happen.

Remember – each case is different, and each case is to be decided based upon the particular facts and circumstances involved. This means that if one material fact changes, the advice to be given or the result to be reached may be different. So, if the facts in this scenario were to change, and the patient told the therapist (while the patient was still in treatment) of the intent to leave a gift by will, a different situation would be presented. Likewise if it was revealed that the therapist had told the wealthy patient of her financial difficulties during the course of therapy and a bequest was later made. But in this case, as the facts are presented, and assuming that no law, regulation, or ethical standard is violated, the therapist has in my view done nothing wrong if he/she accepts the bequest.


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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