Navigating Legal Traumatic Brain Injury Issues: Power of Attorney, Durable Power of Attorney, Guardianship, and Living Wills
No one likes to think about suffering a TBI that leads to a grave illness, catastrophic injury, or death. But with proper proactive planning, you can protect your interests and influence critical decisions — even if you can’t speak for yourself.
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Suffering a traumatic brain injury can leave individuals and families facing urgent, complex decisions at a time when clarity is hardest to achieve. Establishing powers of attorney, durable powers of attorney, guardianships, living wills, and other advance directives before a crisis occurs can safeguard your rights and ensure your wishes are carried out.
This article explains how each of these legal tools works, why they matter after a TBI, and how they can help you and your loved ones navigate medical, financial, and personal decisions with confidence.
Power of Attorney
A competent person, referred to as the principal, can grant another competent person — known as the agent or attorney-in-fact — the legal authority to act on their behalf. This authority is provided to the agent through a legal document known as the Power of Attorney.
The principal can grant the agent broad or specific authority. Typical tasks performed by agents may include buying and selling property, applying for private insurance or government benefits (such as Medicare, Medicaid, or Social Security), managing a business, collecting debts, investing money, cashing checks, handling financial matters, and hiring an experienced attorney to investigate and file an injury lawsuit on behalf of the principal.
The power of attorney becomes void if the principal revokes it or becomes incapacitated unless the principal has executed a durable Power of Attorney (see below).
Durable Power of Attorney
A durable Power of Attorney is a legal document that also allows a designated individual (the agent or attorney-in-fact) to make decisions on behalf of another person (the principal). A durable Power of Attorney simply means that it remains in effect even if the principal becomes incapacitated. It is different from the general Power of Attorney, which typically terminates upon the principal’s incapacity. The durable Power of Attorney is like a general Power of Attorney in that it can cover numerous decision-making areas and enables the agent to act in the best interests of the principal during times when they cannot do so themselves.
The durable power of attorney is especially important in the event of incapacity. Without it, individuals with severe TBIs or other catastrophic injuries or illnesses may face difficulties because they are unable to communicate their wishes or manage their affairs. Individuals should execute a durable power of attorney if they are competent but facing potential health issues; this will preclude the need to go to court to seek the appointment of a guardian should their health condition deteriorate.
Typically, the durable power of attorney is revocable, meaning that the principal can change or revoke the document at any time, provided they remain mentally competent. In other words, as time passes, principals can change their minds if they are competent to do so. However, once the principal becomes incapacitated, a court order is needed to revoke the agent’s authority, which underscores the importance of selecting a responsible agent.
Time is critical when making medical decisions regarding catastrophic injuries. If a durable power of attorney is part of the patient’s medical record, it streamlines the decision-making process by allowing the designated agent to step in immediately to oversee health care decisions, access necessary financial resources for treatment, and communicate effectively with medical practitioners and lawyers.
Guardianship
A guardianship is a legal relationship established if a court determines that an individual is unable to manage their personal affairs or make decisions due to incapacity stemming from severe injury or illness. This process usually involves appointing a competent and responsible individual — the guardian — to whom the court grants the legal authority and responsibility to make decisions for the incapacitated individual regarding their health, welfare, and best interests.
If a person is determined to be incompetent and has not already granted the power of attorney or durable power of attorney to a responsible individual, it may be necessary to seek a court-appointed guardian. When the court appoints a guardian, the guardian’s task is to ensure the individual’s well-being, act in their best interest, and consider their values and preferences, whenever feasible.
Each state has its own laws on the legal standard for declaring an individual incompetent, but the requirements typically include clear and convincing evidence establishing the individual’s inability to make informed decisions. The court’s process for evaluating a person’s capacity involves several steps designed to uphold the rights and dignity of the incapacitated individual. In general, the person who seeks to have the guardian appointed must present evidence before a judge to demonstrate the person’s inability to manage their own affairs. This may include gathering evidence from medical professionals, psychologists, family, and friends familiar with the individual’s condition. The court may also consider numerous factors, including the individual’s ability to communicate, understand information, and make personal care, health, and financial decisions.
If the court declares an individual to be incompetent, a court order will outline the guardian’s specific authority and legal responsibilities to make decisions on behalf of the incapacitated individual. These may include all of the following, as needed:
- Consulting with health care providers
- Approving medical treatments
- Authorizing the release of medical records
- Applying for benefits
- Negotiating for services
- Filing appeals for denied medical benefits
- Managing financial accounts
- Safeguarding assets
- Advocating for the incapacitated individual
- Hiring attorneys
Common Questions About Guardianships
No. Experienced TBI lawyers investigating the cause of a TBI often assist families in obtaining guardianships at no additional cost. To investigate a catastrophic injury case, a guardian may need to be appointed to hire an attorney to represent the estate. It is critical for the family to control the selection of the guardian, regardless of who pays the lawyer filing for guardianship.
No. Many states have procedures for filing emergency petitions to appoint a guardian or a process to select a temporary guardian. This may be vital in an emergency. For example, consider the situation where a facility is about to discharge a TBI patient who is ill, or where no arrangements have been made to transfer an individual to an appropriate, safe location.
No. Unless there is a court-appointed guardian or appropriate Power of Attorney, private health insurance carriers, Medicaid, Medicare, and Workers’ Compensation carriers have no obligation to follow instructions from spouses, parents, siblings, or children of the incapacitated person.
By contrast, insurance companies are legally bound to respond promptly to requests made by court-appointed guardians. Guardians can also restrict an insurance company’s access to medical records and advocate for necessary treatment and care during discharge planning. Furthermore, guardianship decrees can increase the success rate for appeals of denials of benefits or services.
Without a guardian, the TBI patient may have no one to advocate for their health benefits and treatment.
No. Once a child reaches the age of 18 (the age of majority in most states), parents and guardians do not have legal authority to make legal decisions on behalf of their children. Laws in all states require the appointment of a guardian for any adult incapacitated individual, even your own child.
Yes. Without a guardian or appropriate Power of Attorney, no one has the legal authority to advocate for required care. The job of the guardian is to advocate for medically necessary treatment, evaluate the need for government benefits, and ensure that benefits and services are being provided, and bills are being paid.
The fact is that insurance companies are profit-motivated. The insurer will make decisions, and without a guardian, no one will have the legal authority to file appeals from any denials. In those circumstances, the person with TBI will not receive all the benefits, services, and medical care that the insurance company is obligated to pay. Learn more by reading A Guide to Health Insurance and Government Benefits.
Living Wills and Advance Directives
Living wills and advance directives are legal documents that specify a person’s medical care preferences if, as, and when — due to their medical condition — they are no longer able to communicate their wishes. There are significant differences between a living will and an advance directive.
An advance directive is a set of instructions to the medical team regarding health care wishes in the event you are unable to communicate. Individuals can limit advance directives to a particular hospitalization, or it can be durable, meaning that the advance directive remains in place unless revoked. Unlike a living will, an advance directive is not limited solely to an end-of-life illness, and may include TBI, Alzheimer’s disease, stroke, coma, or dementia.
On the other hand, a living will lists your health care choices only if, as, and when you are terminally ill and cannot communicate your own decisions.
These documents can be critical when a person has suffered catastrophic injuries because this situation will often require prompt medical decisions. By choosing health care preferences in advance, individuals can ensure that their values, wishes, and instructions are known.
Both legal documents allow individuals to make decisions about their future care concerning end-of-life treatments, resuscitation efforts, and other medical interventions. When physicians determine that a person they are treating is incapacitated, those health care providers are required by the law to refer to these documents to guide medical decisions. If the individual has chosen not to undergo aggressive medical interventions or life support, the medical team must honor those wishes, provided that the living will complies with the state law. Seeking guidance from a local attorney will ensure compliance and effectiveness in each state.
Need help investigating your legal rights related to a TBI caused on the job?
Speak to an experienced brain injury attorney team like Cohen, Placitella & Roth.
For five decades, CPR has successfully represented individuals and families in TBI cases nationwide working with qualified co-counsel.
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