Should the family of a brain injury survivor consider a guardianship?
When faced with a diagnosis of traumatic brain injury, family members often find it very difficult to consider the issues of guardianship for their incapacitated loved one. It is crucial that this matter be discussed as soon as possible with the family, doctors and attorneys, so that the interests of the incapacitated person are protected.
One of the first questions that family members of an adult TBI survivor will have to deal with is whether the survivor is able to manage his or her property, whether the survivor has the ability to receive and evaluate information effectively and whether the survivor can communicate decisions.
If the brain injury survivor is impaired to the extent that he or she is partially or totally unable to manage finances or take care of the necessary requirements for personal physical health and safety, then a guardian should be considered.
The laws differ in all 50 states. There is no federal law regarding guardianship. It is a matter of state law. Some states use the term “incapacitated”. Other states use the word “incompetent”. Regardless of the terminology, family members are always concerned about whether a guardianship is necessary. Here, we hope to answer some of your questions about guardianship.
When is a guardian needed?
A guardian is required when an individual has suffered such a catastrophic injury, illness, or is otherwise so disabled that that adult individual is unable to make responsible decisions concerning medical, legal, and financial needs and manage daily affairs.
What is a guardianship?
A guardianship is a legal relationship between the guardian (typically court appointed) and an incapacitated individual. The guardianship gives the guardian the legal duty and right to act on
behalf of an incapacitated person and make decisions that affect the incapacitated person’s money and life.
Why is a guardian needed?
The typical responsibilities and functions of a guardian
can include the following:
- Applying for government benefits (Social Security Disability; Supplemental Security Income; and state medical benefits);
- Making arrangements for healthcare;
- In an injury case, retaining an attorney to investigate the cause of the accident and seek all insurance proceeds;
- Instituting legal actions to protect the incapacitated person’s rights against insurance companies, parties who caused an accident, or against the school district for failing to provide the required educational programs for minor children;
- Advocating for the incapacitated person’s rights and best interest;
- Safeguarding the incapacitated party’s finances;
- Keeping records of all financial transactions;
- Opening bank accounts and writing checks;
- Legally refusing or limiting access to an incapacitated party’s medical records in order to protect the individual’s rights to continue to receive healthcare and insurance benefits;
- Giving authorization for inspection of medical records by signing a release for medical information such as public assistance, workers’ compensation, social security disability, Medicare/Medicaid, health insurance or otherwise; and
- Consulting with treating doctors and make decisions regarding proper medical treatment and placement, if necessary.
Who is appointed guardian?
Usually, the guardian is a family member who is responsible and will work in the best interest of the incapacitated person. Typically, a husband, wife, on next of kin, etc. is appointed by the Court. Sometimes, there are co-guardians. A family member is appointed the guardian of the person, while a professional or a bank is appointed as the guardian of the “estate”. Banks are often used as guardians of the estate when there are substantial assets or if there is a minor child that is incapacitated. This needs to be discussed at length with the attorney.
Is it difficult to have someone declared incapacitated or
incompetent?
Generally, the Courts are unwilling to declare a person incapacitated unless it is absolutely necessary. There has to be proper medical documentation. It is not enough to have a family member come in and say that the incapacitated person should have a guardian appointed. Medical documentation will be required.
How is a guardian appointed?
In order to have a guardian appointed, you will have to contact an attorney. State laws vary regarding the procedure. Generally, attorneys charge an hourly rate or an agreed-upon fee for preparing the paperwork necessary to seek the appointment of a guardian.
There will be a hearing in front of the judge. If you cannot afford an attorney’s legal services, you should still obtain a consultation with an attorney familiar with guardianship. It is possible that attorney can refer you to a legal aid society or non-profit foundation that can assist you in filing guardianship papers at a nominal cost.
If the incapacitated person is a child, do the parents have to file for legal guardianship?
Again, state laws vary. However, generally, it is not necessary for a parent to petition to be appointed the guardian for a minor. Parents are the guardians of their children until they reach the age of majority (typically 18 years of age). It only becomes necessary for a parent to file for guardianship after a child reaches the age of 18. In all cases, parents should consult with an attorney as soon as possible after an injury occurs to determine what steps should be taken to protect the child’s welfare in matters such as Wills, Estate Planning, investigation of educational needs and benefits, and most importantly, to determine whether additional insurance is available, and investigate the circumstances of how the injury occurred.
What happens when no family or friends are qualified to serve as guardian?
If this occurs, then the Court typically will appoint an attorney to serve as a guardian.